Parole and Commutation of Sentence to a More Lenient Type of Punishment
One of the key conditions for parole and commutation of sentence (according to judicial practice) is the compensation for damages, payment of procedural costs, and enforcement charges.
Accordingly, failure to fulfill these obligations often serves as the primary reason for the denial of a petition.
For example, on November 24, 2023, the Interdistrict Court of Astana denied parole to F., who had been convicted in 2022 under Part 3 of Article 345 of the Criminal Code and sentenced to 2 years and 6 months of imprisonment.
The reason for the denial was the failure to compensate moral damages awarded to the victim in the amount of 10 million tenge.
In another case, on February 21, 2023, Court No. 2 of Aktobe denied parole to A., convicted in 2021 under Part 3 of Article 188 of the Criminal Code and sentenced to 3 years and 6 months of imprisonment, due to non-compensation of damages amounting to 423,000 tenge.
A small number of incentives and the presence of disciplinary sanctions are also viewed by courts as indicators that the convict has not achieved correction. For example, on January 16, 2023, the Turksib District Court of Almaty denied parole to N., convicted in 2012 under Part 1 of Article 251, Part 1 of Article 252, and Part 3 of Article 259 of the Criminal Code (1997 edition), and sentenced to 14 years of imprisonment.
The court denied parole on the grounds that the convict had received only two commendations over 11 years of serving the sentence, which did not demonstrate rehabilitation.
In another instance, on January 3, 2023, the Petropavlovsk City Court denied parole to L., convicted in 2018 under Part 1 of Article 174 and Part 2 of Article 256 of the Criminal Code and sentenced to 7 years of imprisonment.
The court found that during five years of incarceration, the convict had received only one incentive but had committed five violations. Though these were expunged, they negatively characterized the convict.
The court also considered the fact that the convict was held under general security conditions, did not participate in voluntary associations, had not repaid procedural costs, and had an undetermined level of conduct. On January 25, 2023, Court No. 2 of Pavlodar denied parole to Y., convicted in 2021 under Part 2 of Article 194 of the Criminal Code and sentenced to 3 years and 6 months of imprisonment.
The court established that the convict had received 25 disciplinary sanctions during the term of sentence, of which two remained unexpunged.
Additionally, the convict was assigned a second (negative) degree of conduct.
These factors collectively served as grounds for denial of parole.
According to Article 39 of the Criminal Code, the purpose of punishment is to restore social justice, as well as to correct the offender and prevent the commission of new criminal offenses by both the convict and others.
Punishment is not intended to inflict physical suffering or degrade human dignity.
Provided the conditions established by Articles 72, 73, 86, and 87 of the Criminal Code are met, convicts may not serve the full sentence imposed.
They may be conditionally released before completing their sentence (hereinafter – parole), or the imposed punishment may be substituted with a more lenient type (hereinafter – commutation of sentence, or COS).
Parole and COS are expressions of the state’s trust and humanitarian approach toward the offender, who has demonstrated by exemplary conduct and efforts to remedy the harm caused that continued incarceration is no longer necessary.
The law obliges courts to thoroughly assess compliance with the statutory requirements when considering petitions for parole and COS, including the completeness of submitted materials, eligibility timelines, and a comprehensive evaluation of the convict's rehabilitative progress.
The court’s decision on the petition must be reasoned and contain a detailed justification of its conclusions.
In recent years, public opinion has raised concerns about the lack of clear criteria, transparency, and objectivity in the application of parole and COS.
These institutions play a crucial role in the criminal justice system by facilitating the resocialization of convicts and reducing recidivism. Parole represents the early termination of the sentence due to the achievement of its objectives.
As a rule, the conditionally released individual is placed under probationary supervision and must continue to prove rehabilitation by complying with obligations imposed by the court.
Commutation of sentence is a legal mechanism aimed at improving the legal status of the convict, wherein the original sentence is replaced by a less severe form of punishment.
The underlying principle of these institutions is humanitarianism. Parole and COS serve to motivate convicts toward faster rehabilitation and reintegration into society.
The application of parole and COS is based on two main criteria:
Formal criterion – completion of a specified portion of the sentence, absence of gross violations, and compensation for damages;
Substantive criterion – correction (rehabilitation) of the convict.
Parole and COS fall exclusively within the competence of the court.
Under Part 1 of Article 477 of the Criminal Procedure Code, these matters are decided by the court operating in the district where the sentence is being executed.
A petition for parole or COS may be submitted by the convict, the Prosecutor General, or his/her deputy as part of a procedural cooperation agreement. Previously, under the former Criminal Procedure Code, such matters were raised upon submission by the penal institution.
Parole applies to convicts serving imprisonment or restriction of liberty, while COS applies solely to those serving imprisonment. For persons convicted of crimes committed while minors, parole is also applicable to those sentenced to correctional labor, and COS applies only in cases of imprisonment.
Parole and COS are not applicable to certain categories of offenders, as specified in Part 8 of Article 72 and Part 2 of Article 73 of the Criminal Code.
For instance, parole is not granted to individuals convicted of serious or particularly serious corruption offenses, terrorism or extremism resulting in fatalities, and other specified crimes.
In general, the application of parole and COS is governed by Articles 72, 73, 86, and 87 of the Criminal Code; Articles 476, 477, 478, and 480 of the Criminal Procedure Code; Articles 161, 162, and 169 of the Criminal Enforcement Code; and the Normative Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice Regarding Parole, Commutation of Sentence, and Reduction of Sentence Term” dated October 2, 2015, No. 6.
Since the adoption of the current Criminal Code, provisions relating to parole and COS have undergone numerous amendments, leading to adjustments in judicial practice as well.
Most of these legislative changes were aimed at strengthening criminal policy regarding offenses that pose the greatest threat to society (e.g., terrorism, corruption, and crimes against the sexual integrity of minors).
Legal Framework:
The key legal acts governing these matters include:
The Constitution;
The Criminal Code (CC);
The Criminal Procedure Code (CPC);
The Criminal Enforcement Code (CEC);
The Normative Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice Regarding Parole, Commutation of Sentence, and Reduction of Sentence Term” dated October 2, 2015, No. 6.
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