On judicial practice of conditional early release from serving a sentence, replacement of the unserved part of the sentence with a milder type of punishment and reduction of the term of the imposed punishment

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 2, 2015 No. 6.

      In order to ensure the correct and uniform application of the norms of the Criminal, Criminal Procedure and Penal Enforcement Codes of the Republic of Kazakhstan on parole from serving a sentence, replacement of the unserved part of the sentence with a milder type of punishment and reduction of the term of the imposed punishment, the plenary session of the Supreme Court of the Republic of Kazakhstan

     Decides:

Conditional early release from serving a sentence, replacement of the unserved part of the sentence with a more lenient type of punishment, or reduction of the term of the imposed punishment are complex legal institutions. Issues of their application are resolved in accordance with the procedure established by Articles 72, 73, 86 and 87 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the CC), articles 476, 477, 478 and 480 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) and articles 161, 162 and 169 of the Criminal Executive Code of the Republic of Kazakhstan (hereinafter referred to as the CC – PEC).

To draw the attention of the courts to the fact that the first paragraph of the first part of Article 72 of the Criminal Code establishes the possibility for the court to apply conditional early release of a convicted person who has served a legally prescribed part of the sentence imposed by the court and does not need to serve it in full.

      Paragraphs two and three of the first part of Article 72 of the Criminal Code provide for special conditions for the application of parole.

      If the court finds that, along with the actual serving of the term of punishment provided for by law, the convicted person did not have any serious violations of the regime of serving his sentence and fully compensated for the damage caused by the crime, then in accordance with the second paragraph of the first part of Article 72 of the Criminal Code, he is subject to parole without any additional conditions.

      In the absence of at least one of these two conditions, the issue of parole of a convicted person is decided by the court in accordance with the rules set out in the first paragraph of the first part of Article 72 of the Criminal Code.

      With regard to articles 72 and 73 of the Criminal Code, damage caused by a crime and subject to compensation includes both damage directly caused by the crime and other amounts recovered from the convicted person by sentence or court decision.

     The amount of damage caused by a crime, which is subject to compensation to convicted persons, is established both by a court verdict and by a decision that has entered into legal force, adopted in civil proceedings arising from a criminal case.

     The footnote. Paragraph 2, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/11/2020 No. 6 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).

      2-1. A convicted person may be released on parole on the basis of paragraph 5) of the third part of Article 72 of the Criminal Code only if he fulfills all the conditions of the procedural cooperation agreement and the results specified in the second part of Article 621 of the CPC.

     The footnote. The regulatory resolution was supplemented by paragraph 2-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

When deciding whether to accept a convicted person's request for parole or to replace the unserved part of the sentence with a more lenient type of punishment, the court should check whether it meets the requirements imposed on it by law (parts one, three, nine of Article 162 of the Criminal Code and part two of Article 480 of the CPC), and whether the submitted documents contain the materials contain data characterizing the behavior of the convicted person, his attitude to work and education for the entire time of serving his sentence, are there copies of the documents on the basis of which the convicted person is serving his sentence, as well as information about the completion of the statutory part of the sentence.

     If the submitted materials do not contain sufficient data for consideration of the petition and it is impossible to fill them in at the court session, the judge returns these materials for appropriate registration by his decision during the preparation for consideration of the petition.

When considering the issue of conditional early release from punishment or the replacement of the unserved part of the punishment with a more lenient type of punishment, participation in the court session of the convicted person, the defender, the representative of the institution or body executing the punishment, the prosecutor is mandatory, and the victim or his representative is also entitled to participate. The non-appearance of the victim, the civil plaintiff and their representatives does not prevent the consideration of the petition.

     The court is obliged to notify them of the date, time and place of consideration of the petition in an appropriate manner.

     An official of an institution or body executing a punishment may be a representative in court if there is a power of attorney from the head of this institution or body executing the punishment. This official has no right to appeal the court's decision. The convicted person, the victim and their legal representatives, the defender have the right to appeal the decision, and the prosecutor has the right to protest.

Conditional early release from serving a sentence, replacement of the unserved part of the sentence with a more lenient type of punishment may be applied to a convicted person after actually serving the terms specified, respectively, in parts three, four and five of Article 72, part two of Article 73, and to minors convicted in part one of Article 86, part one of Article 87 of the Criminal Code..

When calculating the sentence actually served by the convicted person, the time of the person's detention before the verdict is pronounced and its entry into force is included. If the decision to offset these terms into the total term of punishment is not contained in a court verdict or in a court order issued in the order of execution of the sentence, the court, when applying conditional early release, decides on such offset in its decision in accordance with the requirements of parts three, four and five of Article 62 of the Criminal Code.

      Conditional early release does not apply to convicted persons specified in the eighth part of Article 72 of the Criminal Code.

     The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

In cases where the sentence of a convicted person has been commuted by an act of amnesty or pardon or by a decision of a higher court, the actual sentence served should be calculated by the court based on the term of punishment established by the act of amnesty or pardon or by a decision of a higher court when applying conditional early release from punishment or replacing the unserved part of the sentence with a more lenient type of punishment.

If a person is convicted of a combination of crimes or a combination of sentences for committing offenses of various categories of severity, then when deciding on parole from serving a sentence or replacing the unserved part of the punishment with a milder type of punishment, the court should calculate the period after which it is possible to apply parole or replace the unserved part of the punishment with a milder one. the type of punishment, according to the rules provided for in part three of Article 72, part two of Article 73, part one of Article 86 of the Criminal Code, in relation to the most serious crime included in the aggregate. At the same time, the arithmetic calculation of the sentence served by the convicted person and the term for which the convicted person was released on parole, or the term of punishment if it is replaced by a milder form, must be carried out based on the final punishment imposed on the totality of crimes or the totality of sentences.

     The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).

The actual serving by a convicted person of a legally prescribed part of the sentence, in accordance with parts three, four and six of Article 72, part two of Article 73, part one of Article 86 and part one of Article 87 of the Criminal Code, may not serve as an unconditional basis for parole or replacement of the unserved part of the sentence with a more lenient type of punishment.

     When deciding on parole and commutation of the imposed punishment with a milder type of punishment, the courts should provide an individual approach and, in each specific case, determine whether the information contained in the petition and other materials is sufficient for parole from serving the sentence and commutation of the imposed punishment with a milder type of punishment, i.e. evaluate positive changes in the behavior of the convict.

     When assessing the behavior of a convicted person, the courts must take into account: compliance with internal regulations, compliance with the requirements of the administration of an institution of the penitentiary system (hereinafter referred to as the institution), participation in educational activities and in the public life of the institution, encouragement, punishment, maintaining relations with relatives and convicts, positive or negative attitude towards studies, compensation for damages, transfer to easier conditions of detention and other circumstances that may indicate the correction of the convicted person.

     The court's conclusion on the correction of a convicted person should be based on a comprehensive accounting of data on his behavior not only for the time immediately preceding the consideration of the petition, but also for the entire period of his stay in the institution, including the time in custody before sentencing.

      The reliability of the requirements provided for in Article 130 of the Criminal Code is established on the basis of a thorough examination by the court of the materials of the personal file.

Penalties imposed on a convicted person for the entire period of serving a sentence, with the exception of those lifted and repaid, taking into account the nature of the violations committed, are subject to evaluation by the court in conjunction with other data characterizing it.

     When examining the degree of correction of a convicted person, it is necessary to examine each fact of disciplinary punishment for whether these violations are malicious.

     The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

In cases where the damage caused by a crime (material damage and moral damage) has not been compensated for a civil claim due to objective reasons such as the convict's disability or the presence of diseases that prevent him from finding employment, etc., the court has no right to refuse conditional early release from serving his sentence or to replace the unserved part. punishments with a milder type of punishment only on this basis.

     At the same time, the established facts of the convicted person's evasion from compensation for the harm caused by the crime (by concealing property, income, avoiding work, etc.), along with other circumstances, may serve as an obstacle to parole or the replacement of the unserved part of the sentence with a more lenient type of punishment.

In accordance with the requirements of part five of Article 480 of the CPC, the issue of parole is considered by the court with the mandatory participation of the convicted person, and if the court refuses to grant a request for parole in accordance with paragraph 3) of part seven of Article 480 of the CPC, it has the right to make a decision at the same meeting to replace the unserved part of the punishment is a more lenient type of punishment, if there is a corresponding petition from the convicted person.

     If the convicted person objects, the court has no right to replace the unserved part of the punishment with another more lenient type of punishment.

There should be no cases of improper application of conditional early release and replacement of the unserved part of the sentence with a milder type of punishment, as well as unjustified refusal to release the convicted person from further serving the sentence and replacement of the unserved part of the sentence with a milder type of punishment, in relation to convicts who do not need to fully serve the term of the imposed punishment.

     The courts have no right to refuse parole for reasons not provided for by law, such as the leniency of the sentence imposed, the short duration of the convict's stay in this institution, the denial of guilt to the convicted person, the presence of a criminal record in the past, serving a sentence for committing a serious or especially serious crime, etc.

If the court decides to release him on parole from serving his sentence or to replace the unserved portion with a more lenient type of punishment, the convicted person shall be released from custody after the decision enters into force. The term of the unserved part of the sentence is calculated from the moment of the convict's actual release. The court must immediately send a copy of the ruling to the institution or body executing the sentence, as well as to the court that issued the verdict.

If an additional punishment is imposed by a court verdict along with the main punishment, when considering the issue of parole from the main punishment or replacing the unserved punishment with a milder type of punishment, the courts should discuss the possibility of releasing the convicted person in whole or in part from the additional punishment.

     If an additional punishment has been executed (a fine has been levied, a person has been deprived of a special, military or honorary title, class rank, or state awards), the issue of releasing the convicted person from this additional punishment is not considered. In case of partial execution of the additional punishment (part of the fine has been collected), the court has the right to decide on the partial or complete release of the person from serving the remaining part of the additional punishment. In cases where additional punishment (for example, deprivation of the right to hold certain positions or engage in certain activities) has not been carried out, the court has the right to release the convicted person from serving his sentence in whole or in part. The court's decision on this issue should be set out in the operative part of the resolution.

      When applying the provisions of articles 72 and 73 of the Criminal Code, persons are not exempt from additional punishment in the form of life imprisonment for the right to hold certain positions or engage in certain activities.

     The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).

If a decision is made on parole from serving a sentence, the court must explain to the convicted person the provisions of part seven of Article 72 of the Criminal Code.

     The court's decision is made in the form of a ruling, which must be reasoned and contain detailed justification for the conclusions reached by the court as a result of consideration of the petition.

The cancellation of conditional early release on the grounds specified in paragraph 1) of the seventh part of Article 72 of the Criminal Code is possible only upon the submission of an authorized state body.

      In accordance with paragraph 2) of the seventh part of Article 72 of the Criminal Code in cases of committing a crime by negligence, as well as committing a criminal offense, an intentional crime of minor gravity by a pregnant woman, a woman with young children, a man raising young children alone, a woman aged fifty-eight and over, a man aged sixty-three and over, a person with a disability of the first or second group, the issue of revocation or retention of parole is decided by the court when sentencing for a new crime.

     This provision gives the right, but does not oblige the court to revoke parole, even if there are circumstances specified in the law.

     The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).

Malicious evasion of the duties imposed by the court on a convicted person, provided for in part two of Article 44 of the Criminal Code and part eight of Article 169 of the Criminal Code, should be understood as repeated failure to fulfill such duties after the body controlling the behavior of the convicted person issues a written warning about the possibility of revoking parole. At the same time, the question of whether evasion from fulfilling the duties assigned by the court is malicious should be decided on a case-by-case basis, taking into account its duration and the reasons for evasion, as well as other circumstances.

     Failure by a person on parole to fulfill the duties assigned to him by the court for objective reasons that prevented their fulfillment, for example, due to illness, is not grounds for revoking parole.

When a conditional early release is cancelled, the unserved part of not only the main, but also the additional punishment is applied if the person was released on parole from serving it.

      In case of cancellation of conditional early release on the basis of paragraph 1) of the seventh part of Article 72 of the Criminal Code, the serving of the unserved part of the deprivation of liberty to the convicted person is determined in the institution of the penal system from which he was released on parole.

     The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

When a court considers an application for parole from serving a sentence or for replacing the unserved part of the sentence with a more lenient type of punishment in respect of a foreign citizen who does not have permanent residence in the territory of the Republic of Kazakhstan, along with other information characterizing the convicted person, data indicating the presence or absence of a convicted person or a foreign the State guarantees the execution of a sentence in terms of a civil claim reached by an agreement on the transfer of a convicted person on the terms, provided for by international treaties of the Republic of Kazakhstan to monitor the behavior of a convicted person and the possibility of establishing probation control over him, which must be carried out during the period of parole on the territory of a foreign state.

      In accordance with the second part of Article 72 of the Criminal Code, probation control is not established upon the conditional early release of a foreigner or a stateless person who has been sentenced by the court to be deported from the Republic of Kazakhstan as an additional punishment.

     The footnote. Paragraph 19 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

Persons to whom the deprivation of liberty imposed by a court verdict has been commuted to a more lenient type of punishment may later be released on parole from serving a new more lenient type of punishment on the basis of article 72 of the Criminal Code.

      Within the meaning of the second part of Article 72 of the Criminal Code, probation control is not established when a person is released on parole from punishment in the form of restriction of freedom.

  The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

In accordance with article 73 of the Criminal Code, the unserved part of the imposed term of imprisonment for crimes of small, medium gravity and grave, taking into account the behavior of the convicted person, may be replaced by a milder type of punishment specified in article 40 of the Criminal Code: a fine, restriction of liberty.

      For minor convicts serving a custodial sentence, the unserved part of the sentence in accordance with article 87 of the Criminal Code is replaced by a court with only restriction of freedom.

     For foreigners and stateless persons, the unserved part of the punishment may be replaced only by a fine with or without expulsion from the Republic of Kazakhstan.

     The footnote. Paragraph 21 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

The court, having established that the convicted person, who was refused parole by the court or the replacement of the unserved part of the sentence with a more lenient type of punishment, filed a second petition earlier than the deadline set by part ten of Article 162 of the Criminal Code, issues a decision to refuse to accept the petition and returns it to the convicted person. In this case, the six-month period specified in the law must be calculated from the date of the decision to refuse conditional early release from serving the sentence or to replace the unserved part of the sentence with a more lenient type of punishment.

The cancellation of conditional early release to a convicted person in accordance with part seven of Article 72 of the Criminal Code cannot serve as a basis for refusing to re-apply conditional early release from serving his sentence. In such cases, the court should proceed not only from the fact that the convicted person's parole has been revoked, but also take into account all data about his personality, time spent in a correctional institution after returning to it, his behavior, attitude to work, etc.

When considering the petition of the Prosecutor General of the Republic of Kazakhstan or his deputy, submitted in accordance with part three of Article 621 of the CPC, to reduce the unserved part of the sentence, the courts should clarify compliance with part two of Article 618 of the CPC when concluding a procedural agreement with a convicted person, whether the convicted person contributed to the disclosure of crimes related to the subject of the procedural agreement on cooperation, exposing the perpetrators particularly serious crimes, crimes committed as part of a criminal group, as well as extremist and terrorist crimes, and whether there is a legally binding conviction against the perpetrators. At the same time, the unserved part of the punishment may be reduced by a court by no more than half.

To invalidate the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2007 No. 10 "On conditional early release from punishment and replacement of the unserved part of the punishment with a more lenient type of punishment."

According to  According to Article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.

Chairman

The Supreme Court

Republic of Kazakhstan

K. MAMIE

Judge of the Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

K. SHAUKHAROV

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