Parole upon Fulfillment of the Conditions of a Procedural Agreement
By the ruling of the Medeu District Court No. 2 of Almaty dated January 12, 2023, the petition for parole of convict Zh., sentenced under Article 106, Part 1 of the Criminal Code to 3 years of restriction of liberty, was granted.
The court's decision was based on the fact that the convict had fulfilled all the conditions of the procedural agreement, which, in accordance with Paragraph 5 of Part 3 of Article 72 of the Criminal Code, is grounds for parole after serving one-quarter of the sentence imposed for a grave crime.
However, the court failed to consider that the convict had entered into a plea agreement during the investigation stage, whereas the basis for parole may only be the fulfillment of the conditions of a cooperation agreement (Paragraph 2-1 of the Normative Resolution of the Supreme Court "On Judicial Practice of Parole and Replacement of Unserved Sentence with a More Lenient Punishment").
Thus, the convict was unlawfully released on parole prior to the legally established term.
According to Article 39 of the Criminal Code, the purpose of punishment is to restore social justice, rehabilitate the convict, and prevent the commission of new criminal offenses by the convict or other persons.
Punishment shall not be aimed at causing physical suffering or degrading human dignity.
Upon meeting the conditions established by Articles 72, 73, 86, and 87 of the Criminal Code, convicts may not be required to serve the full sentence imposed.
They may be granted parole or have the remaining sentence replaced with a more lenient one (hereinafter – replacement of sentence with a more lenient punishment, or RSLP).
Parole and RSLP represent acts of humanity and trust on the part of the State toward a convict who, by exemplary conduct and efforts to make amends during the period of sentence execution, has demonstrated that continued incarceration is unnecessary.
The law obliges courts, when considering parole or RSLP petitions, to thoroughly verify whether the petition meets legal requirements, whether the submitted materials are complete, whether the time period for eligibility has elapsed, and to comprehensively assess the positive changes in the convict’s behavior.
The court’s decision resulting from the consideration of such a petition must be reasoned and provide a detailed justification for the conclusions reached.
In recent years, society has voiced concerns over the lack of clear criteria for granting parole or RSLP and the perceived lack of transparency and objectivity in their application.
The institutions of parole and RSLP play a vital role in the criminal justice system, contributing to the resocialization of convicts and reducing recidivism. Parole is the early termination of a criminal sentence due to the achievement of its goals.
Typically, individuals released on parole are placed under probation supervision during which they must further prove their rehabilitation and comply with obligations imposed by the court.
RSLP is a legal mechanism for improving a convict’s legal standing, wherein the imposed punishment is replaced with a more lenient one.
These institutions are based on the principle of humanism. In this context, parole and RSLP aim to motivate convicts toward rehabilitation and reintegration into society.
The law provides two main criteria for the application of parole and RSLP:
Formal criterion – serving a specific portion of the imposed sentence, absence of malicious violations, and restitution of damages;
Material criterion – actual rehabilitation of the convict.
Parole and RSLP fall within the exclusive jurisdiction of the court.
Under Part 1 of Article 477 of the Criminal Procedure Code, these matters are decided by the court located at the place where the sentence is being executed.
The only grounds for the court to consider parole or RSLP are a petition from the convict or a motion from the Prosecutor General or his deputy under a procedural cooperation agreement. Previously, under the former Criminal Procedure Code, such matters were considered upon submission by the institution executing the sentence.
Parole applies to convicts serving imprisonment or restriction of liberty, while RSLP applies only to those serving imprisonment. In cases involving crimes committed by minors, parole may also apply to those sentenced to correctional labor, while RSLP is limited to those sentenced to imprisonment.
Parole and RSLP are not applicable to certain categories of persons listed in Part 8 of Article 72 and Part 2 of Article 73 of the Criminal Code.
For example, parole is not granted to those convicted of serious and especially serious corruption offenses, terrorism or extremism-related crimes resulting in loss of life, among others.
In general, the application of parole and RSLP is comprehensively regulated 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 Penal Enforcement Code; and the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Practice of Parole and Replacement of Unserved Sentence with a More Lenient Punishment and Reduction of the Term of Imposed Punishment" dated October 2, 2015, No. 6.
Since the adoption of the current Criminal Code, the provisions concerning parole and RSLP have undergone multiple amendments, and judicial practice has been adjusted accordingly.
Most legislative changes were aimed at strengthening criminal policy with respect to crimes posing a significant threat to society (terrorist, corruption-related, and sexual crimes against minors, etc.).
Legal Framework:
The primary legal instruments governing the issues of parole and RSLP include:
The Constitution;
The Criminal Code (CC);
The Criminal Procedure Code (CPC);
The Penal Enforcement Code (PEC);
The Normative Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice of Parole, Replacement of Unserved Sentence with a More Lenient Punishment, and Reduction of Imposed Sentence” dated October 2, 2015, No. 6.
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