Violations of the Prohibition on the Application of Parole (Early Conditional Release)
Part 8 of Article 72 of the Criminal Code provides a list of categories of convicts to whom parole (early conditional release) does not apply. Amendments introduced by Law No. 384-VI dated December 19, 2020, added a prohibition on parole for individuals convicted of serious and especially serious corruption offenses.
Exceptions are made only for cases where such offenses were committed by pregnant women, women with young children, men who are single parents of young children, women aged 58 and above, men aged 63 and above, and persons with disabilities of group 1 or 2.
These amendments entered into force on December 30, 2020. On September 12 of the current year, changes were made to the Rules for the Automated Allocation of Cases in Courts.
According to these amendments, the consideration of parole and sentence reduction (SR) materials for corruption crimes has been assigned to the chairpersons of regional courts, judicial panels, and district courts.
Courts also face difficulties in handling motions for parole from individuals convicted, while under the age of majority, of crimes against the sexual inviolability of persons under the age of 14.
Clause 4 of Part 8 of Article 72 of the Criminal Code establishes that parole is not applicable to individuals convicted of crimes against the sexual inviolability of minors, except when the crime was committed by a minor against another minor aged between 14 and 18.
Thus, a person who committed a crime against the sexual inviolability of a person under the age of 14, while themselves being a minor at the time, is not eligible for parole. However, court practices in handling such cases remain inconsistent.
Note: The prohibition on the application of parole to persons convicted of crimes against the sexual inviolability of minors has been in effect since the adoption of the new Criminal Code. For instance, on March 20, 2023, a judge of the Zhetysu District Court in Almaty granted a parole request for H., convicted under Part 4 of Article 121 of the Criminal Code (the victim was 11 years old) by a sentence dated September 26, 2019.
This court ruling was not appealed. However, the same judge, 10 days earlier (on March 9, 2023), referring to the explicit prohibition in Part 8 of Article 72 of the Criminal Code, denied parole to O., convicted under Part 4 of Article 121 of the Criminal Code (the victim was 7 years old). The appellate court disagreed with this position and, on April 25, 2023, overturned the lower court’s decision and granted parole to O.
The position of the Almaty City Court is based on the provision in Part 1 of Article 86 of the Criminal Code, which states that individuals convicted as minors are subject to unconditional parole upon serving the legally required portion of their sentence and in the absence of egregious violations. However, this interpretation contradicts the legal requirements.
Article 72 of the Criminal Code governs the grounds for granting and revoking parole in general.
Article 86 contains specific provisions that differ from Article 72 due to the age of the offender at the time of the crime.
Thus, parole for individuals who committed crimes while underage is regulated by both Article 72 and Article 86 of the Criminal Code.
According to Article 39 of the Criminal Code, punishment is imposed to restore social justice, correct the offender, and prevent the commission of further crimes by both the offender and others.
Punishment is not intended to cause physical suffering or to degrade human dignity.
Provided that the conditions set out in Articles 72, 73, 86, and 87 of the Criminal Code are met, convicts may be released from serving the full sentence.
They may be granted early conditional release (hereinafter – parole), or their sentence may be replaced with a more lenient one (hereinafter – sentence reduction or SR).
Parole and SR are acts of state humanity and trust toward the offender, who has demonstrated, through exemplary behavior and efforts to make amends during their sentence, that continued incarceration is no longer necessary.
The law requires courts to thoroughly examine the compliance of parole and SR petitions with established legal requirements, the completeness of the submitted materials, the expiration of statutory timeframes, and to holistically assess the convict’s behavioral changes.
The court’s decision following the review of a petition must be well-reasoned and contain a detailed justification of the conclusions reached.
In recent years, public concerns have been raised regarding the lack of clear criteria for parole and SR, as well as insufficient transparency and objectivity in their application.
The institutions of parole and SR play a critical role in the criminal justice system, aiding in the reintegration of offenders and reducing recidivism. Parole involves the early termination of the criminal sentence imposed by the court once the goals of the punishment have been achieved.
Usually, a probationary supervision is established for the conditionally released individual, during which they must prove their reformation and comply with court-imposed obligations.
SR is an institution that improves the legal standing of the convict by replacing the imposed sentence with a more lenient type.
The principle of humanity underlies these institutions. In this context, parole and SR are aimed at encouraging convicts to reform and return to normal life.
The application of parole and SR is conditioned upon two main criteria:
serving a specified portion of the imposed sentence, absence of serious violations, and compensation for damages (formal criterion),
correction of the convict (substantive criterion). Parole and SR fall exclusively within the court's jurisdiction.
According to Part 1 of Article 477 of the Criminal Procedure Code, these matters are resolved by the court at the location where the sentence is being executed.
The basis for court consideration of parole and SR is the convict’s petition, or a petition from the Prosecutor General or their deputy within the framework of a procedural cooperation agreement. Previously, under the former Criminal Procedure Code, these matters were reviewed upon submission by the penal institution.
Parole is applicable to convicts serving imprisonment or restriction of liberty, while SR only applies to those serving imprisonment. For persons who committed crimes while underage, parole is also applicable when sentenced to correctional labor, and SR only applies if sentenced to imprisonment.
Parole and SR cannot be applied to the categories of individuals listed in Part 8 of Article 72 and Part 2 of Article 73 of the Criminal Code.
For example, parole is not granted to individuals convicted of serious and especially serious corruption crimes, terrorist or extremist offenses that caused fatalities, and others.
Overall, the application of parole and SR is comprehensively regulated by Articles 72, 73, 86, and 87 of the Criminal Code; Articles 476, 477, 478, and 480 of the Criminal Procedure Code; Articles 161, 162, and 169 of the Penal Enforcement Code; and the Normative Resolution of the Supreme Court “On Judicial Practice of Parole and Sentence Reduction” No. 6 dated October 2, 2015.
Since the adoption of the current Criminal Code, its provisions on parole and SR have undergone multiple amendments, resulting in corresponding changes in judicial practice.
Most legislative amendments have been made as part of strengthening criminal policy in response to crimes that pose a significant threat to society (terrorism, corruption, offenses against the sexual integrity of minors, etc.).
Legal Framework
The main legal acts governing matters related to parole and SR are:
The Constitution;
The Criminal Code (CC);
The Criminal Procedure Code (CPC);
The Penal Enforcement Code (PEC);
The Normative Resolution of the Supreme Court “On Judicial Practice of Parole and Sentence Reduction” No. 6 dated October 2, 2015.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
