Return or Refusal to Satisfy the Convict's Petition for Parole and Replacement of the Type of Punishment
In accordance with Part 7 of Article 480 of the Criminal Procedure Code (CPC), based on the results of the review, the court issues a ruling on the satisfaction of the petition; on the refusal to satisfy it; or on the refusal to satisfy the petition for parole with a decision to replace the type of punishment.
Additionally, according to paragraph 3 of the Regulatory Resolution of the Supreme Court "On Judicial Practice of Parole and Replacement of Punishment" (hereinafter – the SC Resolution), the court also has the right to return the petition for proper documentation if the case materials do not contain sufficient data for the petition’s consideration and if these deficiencies cannot be remedied during the hearing.
However, courts have been found to improperly return petitions, thereby violating the rights of convicts and causing procedural delays.
For example, the Almaty City Court overturned the ruling of the Turksib District Court dated March 18, 2023, regarding the return of convict B.’s petition for replacement of punishment. The appellate instance noted that the court returned B.’s petition without taking steps to request the necessary materials from the institution and examining them during the hearing.
In some cases, courts have demanded information from convicts that they do not possess. The Kostanay Regional Court overturned the ruling of Court No. 2 of Kostanay dated August 24, 2023, regarding convict D., returning the petition to the court for consideration on its merits. The basis for this decision was an unjustified requirement to provide information about the victims' place of residence.
On July 4, 2023, the Turksib District Court returned convict A.’s petition for replacement of punishment for proper documentation, justifying the return by stating that there was insufficient information available to characterize the convict and to reach a lawful decision. However, the appellate panel on August 29, 2023, overturned this ruling and returned the petition for substantive consideration, as Institution No. 72 had actually submitted the convict’s personal file, along with certificates of the served and unserved portions of the sentence, as well as records of rewards and penalties.
In this case, the petition was accompanied by information characterizing the convict and confirming the circumstances indicated in the petition, such as the presence of minor children, a permanent place of residence, stable social ties, and information about prospective employment. Institution No. 72 also provided the court with the convict’s personal file and certificates confirming the served and unserved sentence periods, meaning that sufficient information had been presented for the court to decide on the matter.
There have been instances where courts returned petitions via letter, i.e., without issuing a ruling, which contradicts paragraph 3 of the SC Resolution and deprives the convict of the right to appeal the judicial act.
For example, the Zhetysu District Court of Almaty returned without consideration the petitions of convicts A. and B. via official letters. Given these circumstances, courts should take necessary measures to prevent unjustified returns of petitions.
Legal Framework for Parole and Replacement of Punishment
According to Article 39 of the Criminal Code (CC), punishment is applied to restore social justice, as well as to correct the convict and prevent the commission of new criminal offenses by both the convict and others. Punishment is not intended to cause physical suffering or degrade human dignity.
If the conditions established by Articles 72, 73, 86, and 87 of the CC are met, convicts may not be required to serve their full sentence. They may be released on parole (hereinafter – Parole) or have their punishment replaced with a milder type (hereinafter – Replacement of Punishment).
Parole and Replacement of Punishment are acts of humanitarianism and state trust toward the convict, who, during the period of serving their sentence, has demonstrated by exemplary behavior and efforts to make amends that further imprisonment is unnecessary.
The law obliges courts, when considering petitions for Parole and Replacement of Punishment, to thoroughly verify compliance with established requirements, completeness of the submitted materials, eligibility based on served sentence terms, and to comprehensively assess positive changes in the convict’s behavior.
The court's decision on the petition must be well-founded and contain a detailed justification for its conclusions.
In recent years, concerns have been raised in society regarding the lack of clear criteria for Parole and Replacement of Punishment, as well as insufficient transparency and objectivity in their application.
These institutions play a crucial role in the criminal justice system by facilitating the reintegration of convicts into society and reducing recidivism rates. Parole entails the early termination of a court-imposed criminal sentence due to the achievement of its goals. Typically, parolees are subject to probationary supervision, during which they must continue proving their rehabilitation and fulfill court-imposed obligations.
Replacement of Punishment is an institution aimed at improving the convict’s legal standing by substituting the imposed punishment with a milder form.
The application of Parole and Replacement of Punishment is governed by two key criteria:
The formal criterion: serving a specified portion of the sentence, absence of serious violations, and restitution of damages;
The material criterion: the convict’s rehabilitation.
The decision to grant Parole or Replacement of Punishment falls exclusively within the jurisdiction of the court. Under Part 1 of Article 477 of the CPC, these issues are decided by the court of the location where the sentence is being executed.
The only grounds for a court’s consideration of Parole or Replacement of Punishment are petitions submitted by the convict or by the General Prosecutor or their deputy within a plea agreement framework. Under the previous CPC, these matters were initiated based on a submission from the correctional institution.
Parole applies to convicts serving imprisonment or restricted freedom, while Replacement of Punishment applies only to imprisonment. For those who committed crimes as minors, Parole also applies to those sentenced to corrective labor, while Replacement of Punishment applies only to imprisonment.
Parole and Replacement of Punishment cannot be granted to certain categories of offenders as specified in Part 8 of Article 72 and Part 2 of Article 73 of the CC. For example, Parole is not granted to convicts sentenced for grave and especially grave corruption offenses, terrorist or extremist crimes resulting in fatalities, among others.
Overall, the application of Parole and Replacement of Punishment is thoroughly regulated by Articles 72, 73, 86, and 87 of the CC, Articles 476, 477, 478, and 480 of the CPC, Articles 161, 162, and 169 of the Penal Execution Code (PEC), as well as the SC Resolution.
Since the enactment of the current CC, its provisions on Parole and Replacement of Punishment have been repeatedly amended, leading to corresponding adjustments in judicial practice.
Most legislative amendments have been introduced to enhance criminal policy regarding crimes that pose the greatest threat to society (terrorist, corruption-related, and crimes against the sexual inviolability of minors, among others).
Regulatory Framework
The primary legal acts governing these matters include:
The Constitution;
The Criminal Code (CC);
The Criminal Procedure Code (CPC);
The Penal Execution Code (PEC);
The Supreme Court Regulatory Resolution "On Judicial Practice of Parole and Replacement of Punishment" dated October 2, 2015, No. 6 (hereinafter – the SC Resolution).
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