The observance of the order of serving a sentence and the execution of a court verdict regarding forced labor is the duty of the convicted person.
The provisions of Article 72 of the Criminal Code provide for the right to parole of persons sentenced to restriction of liberty. The implementation of this provision of the law in practice presents difficulties.
The PEC establishes criteria for evaluating the behavior of a convicted person while serving a custodial sentence: the degree of behavior, encouragement, punishment, participation in the activities of voluntary organizations, etc.
There are no such criteria for serving a sentence in the form of restriction of freedom. Accordingly, when considering the petitions of convicted persons, the courts have difficulty resolving the issue of correcting the convict.
As reasons for the petition, the convicts cite the same circumstances that took place during the sentencing. There is no other data characterizing the behavior of the convicted person while serving his sentence.
In such cases, it is necessary to take into account whether the convicted person led a law-abiding lifestyle, whether he committed violations of the law, including those provided for under the Administrative Code. For example, on June 26, 2023, the Nauryzbay District Court of Almaty denied parole to I., who was sentenced under paragraph 1 of Part 3 of Article 188 of the Criminal Code to 2 years of restriction of liberty with forced labor for 100 hours annually.
The court of first instance refused parole, arguing that the convicted person was held responsible for violating traffic rules while serving his sentence.
The appeals board overturned the court's ruling, stating that the violation of traffic regulations by virtue of Article 67 of the Criminal Code is not a malicious violation, and granted the petition.
She also indicated as motives that the convict had served half of his sentence, reimbursed the procedural costs in the amount of 61,260 tenge, had no serious violations, had worked 100 hours of forced labor, had a positive characteristic.
However, it is the responsibility of the convicted person to comply with the order of serving the sentence and the execution of the court verdict regarding forced labor. A positive characteristic in the presence of the fact of committing an administrative offense is doubtful.
Thus, there is virtually no objective data that was obtained while serving the sentence and testifies to the convict's correction.
Considering the above, it seems correct to grant the right to parole only to those sentenced to imprisonment, with the exception of the punishment in the form of restriction of liberty from the disposition of Article 72 of the Criminal Code.
In accordance with Article 39 of the Criminal Code, punishment is applied in order to restore social justice, as well as to correct a convicted person and prevent the commission of new criminal offenses by both convicted persons and others.
Punishment is not intended to cause physical suffering or humiliate human dignity.
If the conditions established by Articles 72, 73, 86, 87 of the Criminal Code are met, convicts may not serve their sentence in full.
They may be released on parole (hereinafter referred to as parole or parole), or the punishment may be commuted to a more lenient one (hereinafter referred to as the commutation of punishment with its milder form or DMN).
UDO and DMN are an act of humanism and trust of the state towards a convicted person who, during the period of serving his sentence, proved by his exemplary behavior and efforts to make amends for harm that he does not need to continue serving his sentence. Z
The ACON obliges the courts, when considering the issue of parole and DMN, to carefully check the compliance of the convicted person's petition with the established requirements, the completeness of the submitted materials, the timing of the right to parole and DMN, and comprehensively assess the positive changes in the behavior of the convicted person.
The court's decision adopted as a result of consideration of the petition must be motivated and contain a detailed justification for the conclusions reached by the court.
In recent years, opinions have been expressed in the society about the lack of clear criteria for parole and ZMN, lack of transparency and objectivity in their application.
The institutions of parole and DMN play an important role in the criminal law system, contributing to the rehabilitation of convicts and reducing recidivism. Parole is the termination of a criminal sentence imposed by a court before the due date in connection with the achievement of the objectives of the punishment.
At the same time, probation control is usually established in relation to a conditionally released person, during which he must definitively prove his correction and fulfill the duties assigned by the court.
DMN is an institution for improving the situation of a convicted person, in which the imposed punishment is replaced by its milder form.
These institutions are based on the principle of humanism. In this context, the UDO and the DMN are aimed at encouraging convicts to improve as soon as possible and return to normal life.
The law determines the application of parole and DMN by two main criteria:
1) serving a certain part of the imposed punishment, absence of serious violations and compensation for damages (formal criterion),
2) correction of the convicted person (material criterion). UDO and DMN are the exclusive competence of the court.
By virtue of Part 1 of Article 477 of the CPC, these issues are resolved by the court acting at the place of execution of the sentence.
The basis for the court's consideration of the issue of parole and DMN is only the petition of the convicted person, as well as the petition of the Prosecutor General or his deputy within the framework of a procedural cooperation agreement. Previously, under the previous CPC, these issues were considered on the recommendation of the institution executing the punishment.
Parole is applied to convicts serving a custodial sentence or restriction of liberty, while the DMN is only a custodial sentence. For persons who have committed crimes under the age of a minor, parole is also applied when sentenced to correctional labor, and DMN is applied only when sentenced to imprisonment.
It is not allowed to apply UDO and DMN in relation to categories of persons, the list of which is given in part 8 of art.72 and part 2 of art.73 of the Criminal Code.
For example, parole is not applied to those convicted of serious and especially serious corruption crimes, terrorist or extremist crimes that caused the death of people, etc.
In general, the issues of the application of parole and DMN are regulated in detail by Articles 72, 73, 86 and 87 of the Criminal Code, Articles 476, 477, 478 and 480 of the CPC, Articles 161, 162 and 169 of the Criminal Code, as well as the NP of the Supreme Court "On judicial practice of parole and DMN".
Since the adoption of the current Criminal Code, its norms regarding the application of parole and the DMN have been repeatedly amended, and judicial practice has been adjusted accordingly.
Most of the legislative changes were introduced as part of the strengthening of criminal policy for crimes that pose the greatest threat to society (terrorist, corruption, against the sexual integrity of minors, etc.).
Regulatory framework,
The main regulatory legal acts regulating issues related to generalization are:
- The Constitution (hereinafter referred to as the Constitution);
- The Criminal Code (hereinafter referred to as the Criminal Code);
- The Code of Criminal Procedure (hereinafter referred to as the CPC);
- The Penal Enforcement Code (hereinafter referred to as the PEC);
- Normative resolution of the Supreme Court "On the judicial practice of conditional early release from serving a sentence, replacement of the unserved part of the sentence with a milder type of punishment and reduction of the term of the imposed punishment" dated October 2, 2015 No. 6 (hereinafter referred to as NP VS "On the judicial practice of parole and ZMN").
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