Parole from a Sentence of Restriction of Liberty

Article 72 of the Criminal Code provides persons sentenced to restriction of liberty with the right to parole. The practical implementation of this provision of the law presents certain difficulties.

The Penal Enforcement Code establishes criteria for assessing the conduct of convicted persons while serving a sentence of imprisonment, including behavioral classification, commendations, disciplinary sanctions, participation in the activities of voluntary organizations, etc.

There are no such criteria for persons serving a sentence of restriction of liberty. Accordingly, when considering applications for parole, courts encounter difficulties in determining whether the convicted person has been rehabilitated. In their applications, convicted persons cite the same circumstances that existed at the time the judgment was rendered. There is no other information characterizing the convicted person's conduct during the period of serving the sentence. In such cases, it is necessary to take into account whether the convicted person led a law-abiding lifestyle and whether they committed violations of the law, including administrative offenses provided for by the Code of Administrative Offenses.

For example, by a decision dated June 26, 2023, the Nauryzbay District Court of Almaty refused to grant parole to I., who had been sentenced under subparagraph 1) of part 3 of Article 188 of the Criminal Code to two years of restriction of liberty, with compulsory labor of 100 hours annually.

The court of first instance refused to grant parole on the grounds that, during the period of serving the sentence, the convicted person had been held liable for violating traffic regulations.

The appellate panel overturned the court's decision, stating that, pursuant to Article 67 of the Penal Enforcement Code, a violation of traffic regulations does not constitute a malicious violation, and granted the application.

The appellate panel also referred to the fact that the convicted person had served half of the sentence, reimbursed procedural expenses in the amount of KZT 61,260, had no malicious violations, had completed 100 hours of compulsory labor, and had received a positive character reference.

However, compliance with the established procedure for serving the sentence and execution of the court judgment with respect to compulsory labor constitute obligations of the convicted person. In the presence of an administrative offense, the validity of a positive character reference appears questionable.

Thus, there are effectively no objective data obtained during the period of serving the sentence that would demonstrate the rehabilitation of the convicted person.

In view of the foregoing, it would be appropriate to grant the right to parole only to persons sentenced to imprisonment and to exclude restriction of liberty from the disposition of Article 72 of the Criminal Code.

Pursuant to Article 39 of the Criminal Code, punishment is imposed for the purposes of restoring social justice, as well as rehabilitating the convicted person and preventing the commission of new criminal offenses by both the convicted person and other persons.

Punishment is not intended to cause physical suffering or humiliate human dignity.

Where the conditions established by Articles 72, 73, 86 and 87 of the Criminal Code are met, convicted persons may be released from serving the sentence in full. They may be released on parole (hereinafter referred to as parole) or the sentence may be replaced with a less severe type of punishment (hereinafter referred to as replacement of the sentence with a less severe punishment).

Parole and replacement of a sentence with a less severe punishment constitute acts of humanitarianism and an expression of the State's trust in a convicted person who, through exemplary conduct and efforts to remedy the harm during the period of serving the sentence, has demonstrated that they no longer require further punishment.

The law requires courts, when considering issues of parole and replacement of a sentence with a less severe punishment, to carefully verify whether the convicted person's application complies with the established requirements, whether the materials submitted are complete, whether the statutory periods giving rise to the right to parole or replacement of the sentence have expired, and to comprehensively assess positive changes in the convicted person's conduct.

The court decision adopted following consideration of the application must be reasoned and contain a detailed justification of the conclusions reached by the court.

In recent years, public opinion has increasingly raised concerns about the absence of clear criteria for parole and replacement of a sentence with a less severe punishment, as well as insufficient transparency and objectivity in their application.

Thus, this review will make it possible to identify problematic issues arising in judicial practice and to develop the necessary measures to ensure uniformity in its application.

The institutions of parole and replacement of a sentence with a less severe punishment play an important role in the criminal justice system, contributing to the resocialization of convicted persons and the reduction of recidivism.

Parole and Replacement of a Sentence with a Less Severe Type of Punishment

Parole (ШМББ) is the termination of a criminal punishment imposed by a court before the expiration of the prescribed term due to the achievement of the purposes of punishment. In this case, a person released on parole is generally placed under probationary supervision, during which they must ultimately demonstrate their rehabilitation and comply with the obligations imposed by the court.

Replacement of a Sentence with a Less Severe Type of Punishment (ЖНЖТА) is an institution aimed at improving the position of a convicted person, whereby the punishment imposed is replaced with a less severe type of punishment.

These institutions are based on the principle of humanity. In this context, parole and replacement of a sentence with a less severe type of punishment are aimed at encouraging convicted persons to rehabilitate as soon as possible and return to normal life.

The law makes the application of parole and replacement of a sentence with a less severe type of punishment subject to two principal criteria: 1) serving a certain portion of the sentence imposed, the absence of serious violations, and compensation for the damage caused (formal criterion); 2) rehabilitation of the convicted person (substantive criterion).

The application of parole and replacement of a sentence with a less severe type of punishment falls within the exclusive competence of the court. Pursuant to Part 1 of Article 477 of the Criminal Procedure Code (ҚПК), these matters are resolved by the court acting at the place where the judgment is being enforced.

The basis for a court's consideration of the issue of parole or replacement of a sentence with a less severe type of punishment is only an application submitted by the convicted person, as well as an application submitted by the Prosecutor General or their deputy within the framework of a procedural cooperation agreement. Previously, under the former Criminal Procedure Code, these matters were considered upon a submission by the institution enforcing the sentence.

Parole applies to persons serving a sentence of imprisonment or restriction of liberty, whereas replacement of a sentence with a less severe type of punishment applies only to persons sentenced to imprisonment.

For persons who committed an offense while under the age of majority, parole may also be applied where the person was sentenced to corrective labor, whereas replacement of a sentence with a less severe type of punishment applies only where the person was sentenced to imprisonment.

Parole and replacement of a sentence with a less severe type of punishment may not be applied to the categories of persons listed in Part 8 of Article 72 and Part 2 of Article 73 of the Criminal Code (ҚК).

For example, parole does not apply to persons convicted of serious or particularly serious corruption offenses, terrorist or extremist offenses resulting in the death of persons, and other offenses specified by law.

In general, the issues concerning the application of parole and replacement of a sentence with a less severe type of punishment are comprehensively regulated by Articles 72, 73, 86 and 87 of the Criminal Code (ҚК); Articles 476, 477, 478 and 480 of the Criminal Procedure Code (ҚПК); Articles 161, 162 and 169 of the Penal Enforcement Code (ҚАҚК); as well as by the Regulatory Resolution of the Supreme Court (ЖСНҚ) “On Judicial Practice Concerning Parole from Serving a Sentence, Replacement of the Unserved Portion of a Sentence with a Less Severe Type of Punishment, and Reduction of the Term of the Sentence Imposed.”

Since the adoption of the current Criminal Code (ҚК), its provisions concerning the application of parole and replacement of a sentence with a less severe type of punishment have been amended several times, and judicial practice has been adjusted accordingly.

For the most part, legislative amendments were introduced as part of the strengthening of criminal policy in relation to offenses posing the greatest threat to society, including terrorist and corruption offenses, offenses against the sexual integrity of minors, and others.

Regulatory and Legal Framework Used in This Review

The principal regulatory legal acts governing the matters covered by this review are:

• The Constitution (hereinafter – the Constitution);
• The Criminal Code (hereinafter – the ҚК);
• The Criminal Procedure Code (hereinafter – the ҚПК);
• The Penal Enforcement Code (hereinafter – the ҚАҚК);
• Regulatory Resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated October 2, 2015, “On Judicial Practice Concerning Parole from Serving a Sentence, Replacement of the Unserved Portion of a Sentence with a Less Severe Type of Punishment, and Reduction of the Term of the Sentence Imposed” (hereinafter – the ЖСНҚ “On Judicial Practice Concerning Parole and Replacement of a Sentence with a Less Severe Type of Punishment”).

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