Replacement of the Unserved Part of Punishment for Juveniles
📘 GENERAL OVERVIEW
Article 87 of the Criminal Code of the Republic of Kazakhstan regulates the possibility of mitigating a sentence of imprisonment by replacing it with a milder form of punishment — restriction of liberty, provided that the crime was committed while the person was a minor and the convicted person has not violated the regime of serving the sentence.
This is one of the rehabilitative mechanisms aimed at humanizing criminal liability for juvenile offenders, allowing early termination of detention in correctional institutions in case of positive behavior by the convicted person.
⚖️ PURPOSE OF THE NORM
· To encourage rehabilitation and positive behavior in places of detention;· To minimize deprivation of liberty where further isolation is unnecessary;· To ensure the possibility of social rehabilitation under conditions of partial freedom with supervision;· To prevent secondary criminalization of the individual in the penitentiary environment.
📑 ARTICLE-BY-ARTICLE ANALYSIS OF ARTICLE 87
🔹 PART 1 — Conditions and Minimum Terms for Sentence Replacement
The Article establishes differentiated minimum terms of the sentence actually served, depending on the category of the crime:
| Category of Crime | Minimum Term Actually Served | Remaining Part Replaced With |
|---|---|---|
| Minor / Medium gravity | 1/5 (20%) | restriction of liberty |
| Serious crime | 1/4 (25%) | restriction of liberty |
| Especially serious (without encroachment on life) | 1/3 (33.3%) | restriction of liberty |
| Especially serious (with encroachment on life) | 1/2 (50%) | restriction of liberty |
📌 Comment:
· These preferential terms apply only to juveniles; for adults, such replacement is allowed at later stages.· A key condition for replacement is the absence of malicious violations of the regime; perfect behavior is not required.
📎 Examples of malicious violations: escape, assault on staff, gross violations of internal regulations.
⚖️ Example from Judicial Practice:
A juvenile sentenced to 5 years of imprisonment for robbery (a serious crime) served 1 year and 4 months (more than one-fourth of the sentence). He was positively characterized and had commendations from the institution’s administration. Upon the motion of the defense counsel and submission by the penitentiary authority, the court replaced the remaining part of the sentence with restriction of liberty.
🔹 PART 2 — Crimes Committed as Part of a Criminal Group
✅ The norm emphasizes that the right to sentence replacement is preserved even if the juvenile committed the crime as part of an organized (criminal) group.
📌 This is important because, in relation to adults involved in organized crime, such replacement is often limited or excluded.
Comment: The legislator recognizes that a minor’s involvement in a criminal group is often due to external influence (inducement, pressure) and does not always indicate a deeply rooted criminal orientation.
📚 RELATED PROVISIONS OF THE CRIMINAL AND PENAL CODES
📌 Criminal Code of the Republic of Kazakhstan:· Article 72 – conditional early release (parole);· Article 73 – replacement of the unserved part of punishment for adults;· Article 60 – sentencing based on cumulative judgments;· Article 44 – probation supervision.
📌 Penal Enforcement Code of the Republic of Kazakhstan:· Article 164 – replacement of punishment;· Article 165 – procedure for reviewing petitions;· Articles 162–163 – assessment of the convict’s behavior;· Articles 70–75 – rights and obligations under restriction of liberty.
🌍 INTERNATIONAL STANDARDS
🔸 UN Convention on the Rights of the Child (1989):· Article 37(b): deprivation of liberty shall be used only as a measure of last resort and for the shortest appropriate period of time;· Article 40(1): states must ensure measures promoting the rehabilitation of juveniles.
🔸 UN Beijing Rules (1985):· Rule 26: alternative measures (including conditional release or sentence replacement) should be prioritized;· Rule 28: post-penitentiary supervision, assistance, and support must be ensured.
⚠️ PROBLEMATIC ASPECTS OF APPLICATION
Lack of clear criteria for “malicious” violations;
Formalism on the part of penitentiary authorities;
Difficulties in supervising restriction of liberty in rural areas.
✅ CONCLUSION
Article 87 of the Criminal Code of the Republic of Kazakhstan is a key instrument for humanizing criminal policy regarding juveniles. It allows:
· replacing strict isolation with supervised freedom;· preventing recidivism through softer social reintegration;· individually assessing the role of the juvenile, even if acting within a criminal group.
This provision fully complies with Kazakhstan’s international obligations and should be applied with a priority on an individualized approach and assessment of rehabilitation prospects.
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