When considering petitions for parole (conditional early release, hereinafter — parole) or for the substitution of punishment with a more lenient type of penalty (hereinafter — substitution of punishment), courts must take into account the individual characteristics of the convicted person and the specific circumstances of the case materials.

In a number of cases, courts adopt a formalistic approach to reviewing such petitions, failing to consider the individual characteristics of the convicted person and the specific circumstances of the case.

Insufficient attention is paid to evidence demonstrating either the correction of the convicted person or the absence of positive changes in their behavior.

Instances have been recorded where petitions have been granted or denied without proper justification.

Court decisions do not always include the necessary information about the convicted person or the reasoning behind the court’s conclusions, leading to doubts about the validity of the rulings.

Often, courts limit themselves to listing the number of disciplinary sanctions, commendations, and other general data, or the reasoning part of the decision mainly consists of citations from the law and normative rulings.

There are cases where judgments completely lack information about the convicted person’s behavior during the period of serving the sentence.

For example, on April 6, 2023, Court No. 2 of Taraz City denied parole to J., who had been convicted in 2019 under Part 4 of Article 188 of the Criminal Code to 7 years and 6 months of imprisonment.

In making this decision, the court merely cited the relevant legal norms in its ruling without providing any data on the convicted person’s behavior during imprisonment or any reasoning for the denial of parole.

The same court issued a similarly unreasoned decision on December 19, 2023, denying the petition of T., convicted in 2011 under Part 2 of Article 96 of the Criminal Code to 17 years of imprisonment.

According to Article 39 of the Criminal Code, punishment is intended to restore social justice, correct the convicted person, and prevent the commission of new criminal offenses both by the convicted person and by others.

Punishment is not intended to cause physical suffering or degrade human dignity.

Subject to the conditions set forth in Articles 72, 73, 86, and 87 of the Criminal Code, convicted persons may be released without serving their full sentences.

They may be conditionally released early (parole) or have their remaining sentence replaced with a more lenient type of punishment (substitution of punishment).

Parole and substitution of punishment are acts of humanitarianism and trust by the State toward a convicted person who, during the period of serving their sentence, has demonstrated through exemplary behavior and efforts to remedy the harm caused that they no longer require continued incarceration.

The law obliges courts to thoroughly verify the compliance of the convicted person’s petition with established requirements, the completeness of the submitted materials, the occurrence of the necessary qualifying terms, and to comprehensively assess positive changes in the convicted person’s behavior.

The court’s decision must be reasoned and contain a detailed explanation of the conclusions reached.

In recent years, public opinion has noted the absence of clear criteria for applying parole and substitution of punishment, and concerns about insufficient transparency and objectivity in their application have been raised.

The institutions of parole and substitution of punishment play an important role in the criminal justice system, promoting the reintegration of convicted persons into society and reducing the rate of recidivism. Parole represents the early termination of a judicially imposed sentence due to the achievement of the purposes of punishment.

Typically, persons conditionally released are placed under probationary supervision, during which they must definitively prove their correction and comply with obligations imposed by the court.

Substitution of punishment is a legal mechanism for improving the legal status of the convicted person, allowing for the replacement of the imposed sentence with a more lenient penalty.

The principle of humanitarianism is at the core of these institutions. In this context, parole and substitution aim to encourage convicted persons to hasten their rehabilitation and return to normal life.

The law provides two main criteria for applying parole and substitution of punishment:

1. the serving of a specified portion of the sentence, absence of serious disciplinary violations, and compensation for damages (the formal criterion), and

2. the correction of the convicted person (the material criterion).

The application of parole and substitution falls within the exclusive competence of the court.

Pursuant to Part 1 of Article 477 of the Criminal Procedure Code, such matters are decided by the court located at the place where the sentence is being served.

A convicted person's petition, or a petition filed by the Prosecutor General or their deputy as part of a procedural cooperation agreement, serves as the sole basis for the court's consideration of parole or substitution.

Previously, under the former Criminal Procedure Code, such matters were considered upon submission by the institution executing the sentence.

Parole applies to those convicted to imprisonment or restriction of freedom, while substitution of punishment applies only to imprisonment. In cases where the offense was committed by a minor, parole also applies to correctional labor sentences, and substitution only applies to imprisonment.

Parole and substitution of punishment are not permitted for certain categories of persons listed in Part 8 of Article 72 and Part 2 of Article 73 of the Criminal Code.

For instance, parole is not available to individuals convicted of serious and especially serious corruption offenses, terrorist or extremist crimes resulting in fatalities, and other such categories.

In general, the issues surrounding the application of parole and substitution are thoroughly 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; as well as the Normative Resolution of the Supreme Court "On Judicial Practice of Parole and Substitution of Punishment" dated October 2, 2015, No. 6.

Since the adoption of the current Criminal Code, its provisions regarding parole and substitution of punishment have been amended multiple times, and judicial practice has accordingly evolved.

Generally, legislative amendments have been aimed at strengthening criminal policy with respect to crimes posing the greatest threat to society (terrorism, corruption, sexual offenses against minors, etc.).

Legal framework:

The main normative legal acts regulating the issues summarized above 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 Conditional Early Release from Serving a Sentence, Substitution of the Unserved Part of a Sentence with a More Lenient Type of Punishment, and Reduction of the Term of the Imposed Punishment," dated October 2, 2015, No. 6.

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