Probation and early release and Commutation of the sentence of UDO and DMN were considered in compliance with the requirements

           The courts of the country reviewed the materials on parole and DMN in compliance with the requirements of part 4 of Article 478 of the CPC, namely within one month from the date of receipt of the petition to the court. Violations of the specified deadlines are not allowed. The judgments issued by the courts on parole and DMN correspond to the structure of the judicial act. Each part of the resolution is drawn up in accordance with the provisions of the law and the Requirements for the preparation and execution of judicial acts approved by the Order of the Chairman of the Supreme Court of the Republic of Kazakhstan dated August 29, 2018 No. 6001-18-7-4/172. At the same time, according to individual resolutions, there are shortcomings and facts of a simplified approach to their drafting. Thus, according to the resolution of the Pavlodar District Court dated March 19, 2020, the petition of the convicted R. for parole for an unserved term of 2 years, 3 months, and 5 days was granted. At the same time, the introductory part of this resolution indicates the participation of convict D. And in the reasoning part of the decision, the representative of the Probation Service in court characterizes the convicted D., not R. Another example: Sh. by the verdict of court No. 2 of Pavlodar dated January 11, 2018, she was sentenced under part 2 of Article 262, part 2 of Article 233, paragraphs 1), 3) of part 2 of Article 214, part 3 of Article 58 of the Criminal Code to 6 years of imprisonment in a medium-security penal institution with deprivation of the right to engage in entrepreneurial activities related to trafficking excisable goods, for a period of 3 years. By the Ekibastuz City Court on April 27, 2020, the petition of the convicted Sh. satisfied, she was released on parole for an unserved term of 2 years, 5 months, and 25 days.

However, the reasoning and operative parts of the resolution do not contain a decision on additional punishment. Whereas, according to paragraph 14 of the regulatory resolution, if a court verdict, along with the main punishment, imposes an additional 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. When granting a convicted person's request for parole, according to certain materials, the judges in the operative part of the decision mistakenly indicate the release of the convicted person, whereas it should indicate conditional early release. Thus, by a resolution dated November 18, 2020, the Zhelezinsky District Court granted O.'s request for parole and indicated in the operative part that he should be released for an unserved term of restriction of liberty of 11 months and 26 days. Often, in the operative part of the parole decisions, when assigning duties to a person on parole, some courts continue to indicate the outdated, invalid version of part 8 of Article 169 of the Criminal Code. Meanwhile, the Laws of the Republic of Kazakhstan dated April 18, 2017 No. 58-VI and July 12, 2018 No. 180-VI amended part 8 of Article 169, namely: paragraph 6) was redrafted, in addition, the part was supplemented by paragraphs 6-1), 6-2). That is, the list and nature of the duties imposed by the court on parolees has changed significantly, but the courts continue to apply the expired substantive law. In the operative part of the parole decisions, not all courts also indicate which body is responsible for monitoring the behavior of a parolee (part 1 of Article 169 of the Criminal Code). In this regard, when commuting punishment to restriction of liberty, as well as when imposing punishment in the form of restriction of liberty, courts must simultaneously be guided by the requirements of part 2 of Article 44 and part 8 of Article 169 of the Criminal Code, and impose on the convicted person the duties provided for in both articles of the Criminal Code and the Criminal Code. Some courts believe that, within the meaning of the legal position of the law, restriction of freedom is the establishment of probation control and the involvement of a convicted person in forced labor. While the study showed that when a convicted person's request for a restriction of liberty is granted, some judges establish probation control, assign duties to the convicted person and assign forced labor for 100 hours annually during the entire term of serving the sentence, while others establish probation control, assign duties, but do not assign forced labor. for 100 hours annually.

Thus, by a resolution dated June 4, 2020, the Ekibastuz City Court sentenced Ts. to 9 years in prison on December 15, 2016, under part 3 of Article 106 of the Criminal Code, to imprisonment for a period of 4 years, 8 months, and 27 days. Probation control has been established, certain duties have been assigned, and he has been subjected to forced labor for 100 hours annually during the entire term of his sentence. When assigning forced labor to convicted persons under the DMN, it is necessary to strictly comply with the requirements of the law of the first part of Article 44 of the Criminal Code, according to which convicts with permanent employment or employed in education, minors, pregnant women, women with young children under the age of three, men raising young children alone in the family are not involved in forced labor. under the age of three, women aged fifty-eight and over, men aged sixty-three and over, persons with disabilities of the first and second groups, as well as convicts, by which the sentence was commuted to imprisonment for a period of less than six months. Consequently, if the term of restriction of liberty is more than six months and there are no obstacles specified in the law, the court is obliged to impose forced labor. According to the law, all materials and copies of the court's decision on issues related to the execution of the sentence, after entry into force, are attached to the criminal case. If the court's decision has been reviewed by higher judicial authorities, copies of the decisions of these judicial authorities are also attached to the criminal case. The courts of the republic generally comply with these requirements of the law. A copy of the decision is promptly sent to the court that issued the sentence for execution - to the Probation Service and the Police Department, the institution, as well as for information to the convicted person, prosecutor, lawyer. However, there are some cases of late execution of decisions and there is no information about the acceptance for execution by the Probation Service, the police, or referrals to the court that issued the verdict. The judges of the first instance also committed other violations of the law when reviewing materials in this category. In particular, by court order No. 2Taraz, dated October 1, 2020, the petition of convict A. for conditional early release from further punishment in the form of restriction of freedom was granted. A copy of the resolution was sent to the court of first instance only on January 12, 2021, that is, in 2 months.

The same violations were committed by the courts No. 2 of Taraz and Zhambyl district when considering materials concerning T., N., T., M., K., S., I., S., N., S., K., D. There are also facts of non-direction for the execution of the decision of the appellate instance. Thus, on July 29, 2020, the judicial board for criminal Cases overturned the decision of the court No. 2 of Pavlodar dated June 10, 2020 on the refusal of parole for convicted B. and released him on parole for an unserved term of 2 years, 10 months, and 24 days. According to the report of the head of the Russian State University AP-162/2 dated July 30, 2020, convict B. left for Nur-Sultan. However, the resolution has not been sent to the Probation Service of Nur-Sultan for execution. The study showed that individual courts, with reference to part 4 of Article 477 of the CPC, upon completion of consideration of the petition, send not only the decision, but also a copy of the entire material to the court that issued the verdict for information. However, those courts are doing the right thing, which are limited to sending only the court order to the court that issued the verdict, since it is the judicial act that entails legally significant consequences, which meets the requirements of paragraph 13 of the regulatory resolution. 

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