The main criteria for the satisfaction and refusal of applications for parole and ZMN

According to statistics, out of the reviewed 10,073 applications for parole, 6,926 were satisfied, which is 68.7% of the total number of reviewed materials on parole, out of the reviewed 7,595 applications for parole, 3,299 were satisfied, which is 43.4% of the total number of reviewed materials on parole. The analysis of these indicators indicates the validity of applications for parole and the correctness and legality of the decisions of the courts of first instance. Whereas, on the contrary, less than half of the petitions for personal compensation were satisfied, which indicates a premature appeal to the court due to the failure to confirm the fact of correction of the convicted person, as well as the presence of outstanding damage, as well as the failure to take measures to repay it. In addition, the application of the DMN is a court right, in contrast to the mandatory rule provided for in paragraph 2 of part 1 of Article 72 of the Criminal Code. The main general criteria for deciding whether to grant applications for parole and DMN, in addition to the formal criterion of the actual serving of a certain part of the sentence imposed by the court, is the behavior of the convicted person during the periods of stay in the probation control institution established for mandatory service, which indicates his desire for correction, repayment of damage or taking measures to repay it, the absence of serious violations.

The analysis showed that the largest number of applications for parole were granted by the court in the case when the convicted person was not sued for compensation for material damage, there were no malicious violations, that is, when there was mandatory parole behavior after serving the prescribed part of the sentence. Thus, by court decision No. 2 of Pavlodar dated May 20, 2020, Sh., sentenced on August 22, 2018 under part 4 of Article 296 of the Criminal Code to 3 years in prison, was released on parole for an unserved term of 9 months and 8 days with the establishment of probation control on the basis of part 2 of Article 72, with the assignment of duties according to the rules of the article 44, part 8 of Article 169 of the Criminal Code. In support of the decision, the court stated that Sh. He is characterized positively, has the 2nd positive degree of behavior, two incentives, no penalties or serious violations, does not violate the established order of serving his sentence, takes an active part in cultural events, is a member of the leisure and self-education section, attends educational events, reacts correctly to them, keeps in touch with relatives. Has no civil claim. Written documents on the proposed place of residence with close relatives and the possibility of finding a job as a worker at the IP printing house Papyrus Plus are presented. Another example. By the decision of the court No. 2 of the Baykonyr district of Nur-Sultan dated November 9, 2020, the petition of G., who was sentenced to 1 year in prison under part 1 of Article 346 of the Criminal Code, to replace the unserved part of the sentence with a milder type of punishment was refused on the grounds that he had served a minor part of the sentence, as well as the conclusion of the correctional institution administration that it was inappropriate ZMN applications. The Judicial Board for Criminal Cases of the Court of the city of Nur-Sultan, considering that She has no malicious violations of the established procedure for serving a sentence, as well as the absence of material damage in the case, a positive characteristic as circumstances indicating the achievement of the purpose of punishment, taking into account the nature of the specific criminal offense committed by the convicted person, which is insignificant in relation to the "overall positive dynamics" of correcting the convicted person, the court of first instance quashed the ruling and granted the petition the convict. According to paragraph 2 of part 1 of Article 72 of the Criminal Code, provided that the convicted person actually serves the term of punishment provided for by law, does not have any serious violations of the regime of serving his sentence and fully compensates for the damage caused by the crime, the convicted person is subject to parole, that is, this rule is mandatory for the court. However, there are examples where, taking into account the circumstances of a particular case, the courts have made a different decision.

Example: by the decision of the Atbasar District Court dated October 5, 2020, convict D. by the verdict of the Astana city court dated February 10, 2009 on paragraphs "a, d" of part 2 of Article 179, paragraph "h" of part 2 of Article 96, part 4 of Article 58 of the Criminal Code to 15 years of imprisonment with serving a sentence in a high-security penal colony D. was convicted of committing a particularly serious crime and actually served more than two thirds of the sentence, formally he falls under the category of a person who can be released from punishment on parole under Article 72 of the Criminal Code. According to the submitted materials, During his sentence, he received 5 commendations in the form of commendations, the last of which dates back to December 30, 2016, 1 penalty, repaid by time. However, the court concluded that these incentives do not indicate his correction and cannot be used as an unconditional basis for satisfying the petition, since since 2019, at the time of reviewing the material, the convict had not had a positive degree of behavior. Statistics show that out of the reviewed 10,073 applications for parole, 2,725 were denied, which is 27% of the total number of reviewed parole materials, out of the reviewed 7,595 applications for parole, 3,833 were denied, which is 50.4% of the total number of reviewed parole materials. The grounds for refusing to satisfy the petitions of the UDO and the DMN are most often the unpaid damage to the victim and the failure to take measures for compensation, if there is an opportunity to find a job and repay the damage; the negative characterization of the convict; data characterizing the unstable behavior of the convicted person during the entire period of serving his sentence, including the simultaneous presence of rewards and penalties, the presence of systematic penalties, as well as recognition as a malicious violator, refusal to join voluntary organizations of convicts, ignoring participation or passive behavior in cultural and educational events; the opinion of victims and others. Thus, by a resolution of the Ekibastuz City Court dated August 26, 2020, O., who was sentenced on February 21, 2018 under paragraph 2 of part 4 of Article 189 of the Criminal Code to 7 years in prison with the deprivation of the right to hold positions in the field of financial activity and accounting for 7 years, was denied parole. In refusing to satisfy the petition, the court indicated that for the entire term of serving the sentence, he had been convicted. He did not commit any violations of the regime, and received 3 promotions, the last of which dates back to December 2019. After that, he did not show himself in a positive way, he did not deserve any encouragement.   The presence of incentives and the absence of penalties served as the basis for determining O. On October 8, 2019, the 2nd positive degree of behavior and transfer to a minimum security institution, where he did not receive further incentives. The existing claim in the amount of 3,300,203 tenge has not been paid, only 13,050 tenge has been repaid, and this is despite the fact that there is. He was employed at the place of serving his sentence.

Another example is when a person sentenced to restriction of liberty while serving his sentence was not encouraged, but, on the contrary, committed a crime. By court decision No. 2 of Pavlodar dated September 9, 2020, Kh., who was sentenced on July 23, 2019 under paragraph 4) of part 3 of Article 190 of the Criminal Code to 3 years of restriction of liberty, the application for parole was denied due to the fact that he did not draw the proper conclusions and did not prove his correction. Namely: during the entire period of serving his sentence, he had no incentives, received a warning for a malicious violation of the order of serving his sentence, and on January 31, 2020, he committed a second crime under part 1 of Article 190 of the Criminal Code, the criminal case was terminated due to reconciliation of the parties. The analysis showed, as mentioned above, in judicial practice there are questions about the application of parole under part 1 of Article 72 of the Criminal Code and the DMN under Article 73 of the Criminal Code in cases where the convicted person formally falls under the scope of this norm, but at the same time he can hardly be recognized as having embarked on the path of correction and not needing to be corrected full serving of the appointed punishment. Thus, by the decree of the court No. 2 of Pavlodar dated July 30, 2020, V., convicted on June 12, 2013 under paragraphs J., K., part 4 of Article 96, under paragraphs "a, b, g, z" of part 2 of Article 125, part 4 of Article 185, part 1 of Article 324, under paragraphs "a, b, c" of part 2 of Article 175, part 4 of Article 58 of the Criminal Code was sentenced to 20 years in prison, which, by virtue of Article 6 of the Criminal Code, was reduced to 16 years in prison by a decision of the same court dated June 8, 2017, and was released on parole for an unserved term of 5 years, 1 month, and 16 days. Satisfying the petition of the convicted person, the court motivated by the fact that he is positively characterized, has 12 rewards and the 3rd positive degree of behavior, is held on facilitated conditions, has no malicious violations, there are no claims. According to paragraph 2 of part 1 of Article 72 of the Criminal Code, is subject to release. At the same time, it follows from the submitted materials that V. has 39 different penalties for the entire period of serving his sentence, including four times being placed in a punishment cell for 6, 10, 15 days. These penalties, although repaid over time, nevertheless characterize the behavior of the convicted person during the entire term of serving the sentence and indicate that his behavior was not stable and law-abiding. It was only by the time the parole period arrived that it changed. The damage to the victim was paid off on July 27, 2020, i.e. during the consideration of the petition and immediately before the court's decision. Earlier, during the entire period of serving his sentence, the convict had not taken any measures to compensate the victim, had not worked, and had not contacted the administration regarding employment.

Another example is when a person sentenced to restriction of liberty while serving his sentence was not encouraged, but, on the contrary, committed a crime. By court decision No. 2 of Pavlodar dated September 9, 2020, Kh., who was sentenced on July 23, 2019 under paragraph 4) of part 3 of Article 190 of the Criminal Code to 3 years of restriction of liberty, the application for parole was denied due to the fact that he did not draw the proper conclusions and did not prove his correction. Namely: during the entire period of serving his sentence, he had no incentives, received a warning for a malicious violation of the order of serving his sentence, and on January 31, 2020, he committed a second crime under part 1 of Article 190 of the Criminal Code, the criminal case was terminated due to reconciliation of the parties. The analysis showed, as mentioned above, in judicial practice there are questions about the application of parole under part 1 of Article 72 of the Criminal Code and the DMN under Article 73 of the Criminal Code in cases where the convicted person formally falls under the scope of this norm, but at the same time he can hardly be recognized as having embarked on the path of correction and not needing to be corrected full serving of the appointed punishment. Thus, by the decree of the court No. 2 of Pavlodar dated July 30, 2020, V., convicted on June 12, 2013 under paragraphs J., K., part 4 of Article 96, under paragraphs "a, b, g, z" of part 2 of Article 125, part 4 of Article 185, part 1 of Article 324, under paragraphs "a, b, c" of part 2 of Article 175, part 4 of Article 58 of the Criminal Code was sentenced to 20 years in prison, which, by virtue of Article 6 of the Criminal Code, was reduced to 16 years in prison by a decision of the same court dated June 8, 2017, and was released on parole for an unserved term of 5 years, 1 month, and 16 days. Satisfying the petition of the convicted person, the court motivated by the fact that he is positively characterized, has 12 rewards and the 3rd positive degree of behavior, is held on facilitated conditions, has no malicious violations, there are no claims. According to paragraph 2 of part 1 of Article 72 of the Criminal Code, is subject to release. At the same time, it follows from the submitted materials that V. has 39 different penalties for the entire period of serving his sentence, including four times being placed in a punishment cell for 6, 10, 15 days. These penalties, although repaid over time, nevertheless characterize the behavior of the convicted person during the entire term of serving the sentence and indicate that his behavior was not stable and law-abiding. It was only by the time the parole period arrived that it changed. The damage to the victim was paid off on July 27, 2020, i.e. during the consideration of the petition and immediately before the court's decision. Earlier, during the entire term of serving his sentence, the convict had not taken any measures to compensate the victim, had not worked, and had not contacted the administration regarding employment.

This fact indicates that the convicted person has taken effective measures to repay the damage only after applying to the court and solely for the purpose of parole. In the opinion of the majority of judges, the content of the second paragraph of part 1 of Article 72 of the Criminal Code contradicts the general principle of parole. Thus, the basis for applying the institution of parole is the complete correction of the convicted person, which allows the court to conclude that the convicted person does not need to serve his sentence in full. However, in some cases, the courts, if there are grounds specified in the second paragraph of part 1 of Article 72 of the Criminal Code, do not apply conditional long-term release. For example, a person has been convicted of murder, no claims have been filed against him, he is characterized negatively, has not earned any rewards, and has penalties, including outstanding ones, but these violations are not recognized as malicious. Formally, he falls under the provisions of the law obliging the court to release him on parole. However, the court cannot recognize him as a person who does not need to continue serving his sentence. The study of the materials on which the parole of persons convicted of serious crimes was denied shows that the courts most often refuse parole to persons convicted of murder and intentional infliction of serious harm to health, resulting in death by negligence, rape and sexual violence, robbery and the sale of narcotic drugs. However, according to part 2 of Article 39 of the Criminal Code, the purpose of punishment is to restore social justice, as well as to correct the convicted person and prevent him from committing new criminal offenses. This provision is consistent with part 1 of Article 72 of the Criminal Code, according to which the grounds for parole are the loss of public danger by the convicted person and the possibility of his final correction without fully serving the sentence.

In this regard, the courts reasonably propose to exclude the application of paragraph 2 of part 1 of Article 72 of the Criminal Code in the above circumstances, as well as to consider the possibility of excluding the application of this provision (paragraph 2 of part 1 of Article 72) to those convicted of particularly serious crimes. When considering petitions in court, the cornerstone is the issue of evaluating the correction of convicts. It is impossible for the court to reliably determine whether the convicted person will embark on the path of correction or continue to engage in criminal activity. Objectively, it is very difficult for a judge to assess the behavior of a convicted person based on the submitted materials. In this regard, it is necessary to support the proposals of the courts that, in order to resolve issues of parole and DMN, it is necessary to create appropriate commissions, which must necessarily include psychologists and members of the public. The conclusions of these commissions would provide an opportunity to objectively assess the degree of correction of convicts and the possibility of preventing them from committing new crimes. It is necessary to clarify the criminal law, to define clear and understandable criteria for all interested persons, in the presence of which a convicted person is subject to parole. 

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