It is necessary to evaluate the positive changes in the behavior of the convicted person when deciding on parole and replacing the imposed punishment with a more lenient type of punishment.

The main problem of judicial practice is when courts make different decisions under similar circumstances.

The main reason for violations of uniformity is the imperfection of legislation.

According to paragraph 9 of the NP of the Supreme Court "On judicial practice of parole and DMN", when deciding on parole and commutation of the imposed punishment with a more lenient type of punishment, the courts must provide an individual approach and, in each specific case, determine whether the information contained in the petition and other materials is sufficient for parole from serving the sentence. and the replacement of the imposed punishment with a milder type of punishment, i.e. to evaluate positive changes in the behavior of the convicted person.

When assessing the behavior of a convicted person, the courts must take into account: compliance with internal regulations, compliance with the requirements of the administration of the institution of the penitentiary system, participation in educational activities and in the public life of the institution, encouragement, punishment, maintaining relations with relatives and convicts, positive or negative attitude towards studies, compensation for damages, transfer to facilitated conditions of detention and other circumstances that may indicate the correction of the convicted person.

Thus, the legislation, in general, lists the circumstances that the court must take into account when resolving an application for parole or MLA, at the same time, the decision is closely related to the assessment of the established circumstances and depends on judicial discretion.

There are no clear criteria for making a decision, in particular, it is not specified which of the positive degrees of behavior, the number of rewards, and their regularity are sufficient to conclude about positive changes in the behavior of the convicted person.

For example, on June 23, 2023, the Ili District Court of the Almaty region, with an outstanding claim for 1.3 million tenge, granted the petition for ZMN M., who was sentenced in March 2022 under Part 3 of Article 190 of the Criminal Code to 5 years in prison (previously convicted to restriction of liberty under Part 3 of Article 190 of the Criminal Code),

The reason for satisfaction was the presence of 1 incentive and the first positive degree of behavior, the absence of penalties. However, the same court, under similar circumstances, refused to grant a residence permit to other convicts. For example, on January 16, 2023, the same court refused to release K., who was sentenced to 4 years in prison in 2020 under Part 3 of Article 190 of the Criminal Code, due to unpaid damage in the amount of 1.7 million tenge.

This is despite the fact that the convict did not commit violations, has 2 rewards, and has been assigned a 2 positive degree of behavior.

On December 20, 2023, the same court refused to release Ms S., who was sentenced in April 2022 under Part 3 of Article 190 of the Criminal Code to 4 years and 6 months in prison (previously convicted under Part 2 of Article 367 of the Criminal Code).

The court found that the convict has 2 incentives, the second positive degree of behavior.

She has no penalties, is kept in light conditions, has settled the claim, has 5 children.

The court motivated its decision by the fact that the submitted materials did not contain complete and exhaustive information that the convict had proved her correction. For all crimes, the law establishes the same conditions for parole and DMN.

However, an analysis of court rulings shows that courts still vary the requirements for the behavior of a convicted person depending on the nature and severity of the criminal act.

Thus, when considering petitions of those convicted of crimes against property and in the sphere of economic activity, the courts put forward the main requirement - compensation for damage.

At the same time, in relation to the behavior of convicts themselves, the courts in some cases consider 1 or 2 positive degrees of behavior, the presence of one or more incentives and the absence of penalties sufficient.

This position of the courts seems to be correct.

For example, on February 21, 2023, Court No. 2 of Ust-Kamenogorsk granted the petition for the release of E., who was sentenced in November 2020 under Part 4 of Article 188 of the Criminal Code to 6 years in prison (unserved term of 3 years and 7 months).

The court's decision is motivated by the fact that the convicted person fully repaid the damage in the amount of 13.8 million tenge, has no penalties, received 3 incentives, and was awarded the second positive degree of behavior.

In another case, on May 11, 2023, the Arshaly district Court of the Akmola region granted the petition for the release of K., who was sentenced in 2021 under Part 3 of Article 188, Part 2 of Article 191 of the Criminal Code to 4 years and 3 months in prison.

The court's decision is motivated by the fact that the convicted person has reimbursed the damage and court costs, received 2 incentives, has no penalties, has been assigned a second positive degree of behavior, and is serving his sentence in light conditions of detention.

When committing such crimes, only the property rights of the victims are violated, respectively, the restoration of social justice is expressed primarily in compensation for damage.

In this regard, serving the term of punishment prescribed by law, observing the order of serving the sentence and the positive characteristic given by the Institution may be considered sufficient to satisfy the application for parole and a medical record. In the light of the issue of compensation for damages, the following proposal should be made.

Convicts often indicate in their petitions that they are unable to compensate for the damage due to the lack of jobs in places of detention.

In such cases, the introduction of mediation can resolve the voiced problem and resolve the material and legal claims of the injured party. When the deprivation of liberty is replaced by a punishment in the form of restriction of freedom, the court assigns certain duties to the convicted person.

According to Article 44, Part 2 of the Criminal Code, these are duties that contribute to the correction of a convicted person and the prevention of new criminal offenses. That is, the list of duties is not limited and is determined by the court independently.

Thus, in the event of a positive decision on the application for a DMN, the court has the right to impose on the convicted person the obligation to fulfill the mediation agreement concluded with the victim.

Of course, the terms of the mediation agreement must be really enforceable and not carry deliberately false information.

The court must take into account: whether the convicted person has a specialty; whether he has worked before; whether there is information about the possibility of employment, the amount of salary. The amount of monthly payments should correspond to the amount of salary.

Accordingly, if the obligation to compensate damages is not fulfilled in accordance with Articles 67 of the Criminal Code and 44 of Part 3 of the Criminal Code, the restriction of liberty may be replaced by imprisonment. A separate issue that often provokes criticism from the legal community is the parole and DMS of convicts under Article 216 of the Criminal Code (issuing fictitious invoices).

The issue of resolving these petitions is quite controversial. Thus, the persons were found guilty of issuing fictitious invoices, as a result of which the counterparties of these persons evade paying taxes to the state, causing large and especially large damage.

The actions of those convicted under Article 216 of the Criminal Code are qualified as having caused damage to the state, an indication of the amount of damage is contained in the descriptive part of the sentence.

At the same time, according to judicial practice, the amount of damage-unpaid taxes - is collected from counterparties, and not from those convicted under Article 216 of the Criminal Code, although damage has occurred to the state with the participation of the latter.

Accordingly, no civil lawsuits are brought against those convicted of this crime, for which the obligation to make payments arises.

In this regard, positive changes in the behavior of the convicted person may be indicated by a high positive degree of behavior, the presence of incentives and the absence of penalties, as well as other circumstances specified in paragraph 9 of the regulatory resolution.

The analysis shows that when considering applications for parole and the ID of persons convicted of committing violent, including particularly serious crimes, the courts pay more attention to the behavior of the convicted person, the signs that indicate the correction of the convicted person.

Such signs include encouragement, the highest is the third positive degree of behavior, participation of convicts in organizations of convicts, maintaining relations with relatives, and detention on facilitated terms.

Compensation for damages in this case is not the main determining factor. This position is absolutely verified.

In accordance with Article 39 of the Criminal Code, one of the purposes of punishment is to prevent the commission of new crimes by both convicted persons and others.

The recidivism rate among people convicted of violent crimes is high. Therefore, in relation to persons who have committed violent crimes, the achievement of the above-mentioned goal of punishment must be proven.

The above factors are also taken into account when considering petitions from those convicted of crimes, including corruption, where there is no damage caused and no recovery of any amounts by court verdict.

In this case, the absence of damage due to the nature of the crime is not evidence of positive changes in the behavior of the convicted person.

For example, a person is convicted of accepting a bribe. There is no damage in the case, since this is the qualification of a criminal act.

Accordingly, the court must carefully examine the convicted person's behavior in all other circumstances prescribed by law in order to come to a conclusion about his correction.

Corruption crimes are not violent, and often do not cause material damage, but their commission undermines the foundations of the State and poses a great public danger.

For example, on July 4, 2023, Court No. 2 in Ust-Kamenogorsk granted a petition for parole for M., who was sentenced in 2006 under Part 2 of Article 96 of the Criminal Code to 19 years in prison (unserved term of 1 year and 1 month).

The court took into account that the convicted person has served the prescribed part of the sentence, received 11 incentives, has no outstanding penalties, is in reduced conditions of detention, has paid off expenses, has a third positive degree of behavior, actively participates in the public life of the institution.

At the same time, the courts refused to grant parole if there were insufficient grounds for concluding that the convict had been fully rehabilitated.

For example, Court No. 2 in Pavlodar denied parole to P., who was sentenced in 2015 under Part 2 of Article 96 of the Criminal Code to 11 years and 6 months in prison (unserved term of 1 year and 9 months).

The court noted that during the period of serving his sentence, the convict received only 6 incentives. After the previous refusal of parole, he did not show himself positively. He is assigned a second positive degree of behavior in the presence of a higher degree.

Courts often indicate the irregularity of incentives and a small number of them as grounds for refusal of parole and DMN.

Indeed, in cases where one convict has been convicted for 3 years and the second convicted for a period of 10 years of imprisonment have 3 incentives and a third degree of behavior, it is impossible to speak about the same degree of correction.

For example, on March 1, 2023, the Abai District Court of the Karaganda region denied parole to Ts., who was sentenced to 12 years in prison under Part 3 of Article 297 of the Criminal Code. The court stated that the convicted person, serving a sentence of more than 7 years, has only 4 incentives.

In another case, on November 1, 2023, the same court granted the petition for parole of G., who was sentenced to 13 years in prison in 2014.

The court took into account that during the 10 years of serving his sentence, the convict received 14 incentives, had no penalties, paid off expenses, is in facilitated conditions of detention, and actively participates in the work of the voluntary organization of convicts.

In this regard, for long periods of serving a sentence, there should be a regularity of rewards and, accordingly, a sufficient number of rewards.

This is also evidenced by paragraph 9 of the NP of the Supreme Court "On the judicial practice of parole and DMN", according to which the court's conclusion on the correction of a convicted person should be based on a comprehensive accounting of data on his behavior not only for the time immediately preceding the consideration of the petition, but also for the entire period of stay in the institution, including the time in custody until sentencing.

For example, on July 10, 2023, Court No. 2 in Pavlodar denied parole to M., who was sentenced to 20 years in prison in 2013 under Part 2 of Article 96 of the Criminal Code. The court motivated the refusal of parole as follows.

The convict is positively characterized and received 12 rewards. At the same time, the convict had 6 penalties. In general, this characterizes his behavior as unstable.

On February 14, 2023, the same court denied parole to A., who was sentenced to 19 years in prison in 2010 under Part 2 of Article 96 of the Criminal Code.

The court pointed out that the convict had 12 rewards, but they were not received regularly and at long intervals, indicating the instability of the convict's behavior.

Based on the above-mentioned provision of the NP of the Supreme Court "On judicial practice of UDO and DMN", when assessing the behavior of a convicted person, the existence of penalties should be taken into account.

This circumstance indicates that the convicted person not only does not comply with the order of serving his sentence, but also intentionally violates it. The logical thing in such a situation is the need for a sufficient amount of encouragement after violations in order to come to a conclusion about correcting the convicted person.

It is necessary to take into account the time of imposition of penalties, their number, frequency, and the time elapsed since the last penalty. For example, on October 2, 2023, the Aktobe city Court No. 2 denied parole to K., who was sentenced to 13 years in prison in 2014 under Part 2 of Article 99 of the Criminal Code.

The court pointed out that, despite the compensation for damages and the presence of 4 rewards, the convicted person's behavior could not be considered consistently law-abiding, since receiving rewards at the same time alternated with receiving 6 penalties for violating the conditions of serving his sentence.

The provision of the NP of the Supreme Court "On judicial practice of UDO and DMN" is contradictory, stating that penalties imposed on a convicted person for the entire period of serving a sentence, with the exception of those lifted and repaid, taking into account the nature of the violations committed, are subject to evaluation by the court in conjunction with other data characterizing it.

According to Article 132, Part 10 of the Criminal Code, if within six months from the date of serving a disciplinary penalty the convicted person is not subjected to a new penalty, he is considered not to have a penalty, and recognized as a malicious violator of the established procedure for serving a sentence – not being one.

It follows from the listed provisions of the law that the foreclosure is repaid after 6 months.

In such circumstances, it is unclear how it is possible to assess the behavior of a convicted person during the entire period of serving his sentence.

For example, a convicted person, systematically violating the order of serving his sentence, having 5 or more penalties, after a short period of time - 6 months of observing the established procedure is considered to have no penalties.

For example, on October 11, 2023, the Ural City Court denied parole to B., who was sentenced to 4 years in prison in 2020 under Part 3 of Article 190 of the Criminal Code. It follows from the court's ruling that the first positive degree of behavior for the convicted person was determined just 3 months before going to court.

At the same time, a year earlier, he had twice committed serious violations, for which he was placed in a detention center, he was assigned the third negative degree of behavior, and he was returned to a medium-security facility from a minimum-security facility. The damage in the amount of 1.1 million tenge has not been reimbursed.

An analysis of judicial practice shows that the courts take into account all penalties, reasonably pointing out that their presence shows the instability of the convicted person's behavior, the lack of focus on correction.

In connection with the above, the provisions of the NP on the prohibition to take into account repaid penalties are controversial.

The arguments in support of the provision are as follows. Accounting for repaid penalties violates the constitutional principle that a person cannot be held responsible twice for the same violation. However, in this case we are not talking about repeated punishment.

Data on violations of the order of serving a sentence act as information characterizing the convicted person.

When analyzing and evaluating the behavior of a convicted person, it is necessary to examine the nature of the violation committed by the convicted person. This is also indicated in the NP of the Supreme Court "On the judicial practice of parole and ZMN".

In particular, cell phone possession and alcohol consumption are serious violations of the order of serving a sentence. But, obviously, they have different meanings for the conclusion about the correction.

For example, on September 18, 2023, the Aktobe city Court No. 2 denied parole to B., who was sentenced in 2015 under Part 2 of Article 175, Part 3 of Article 103, part 2 of Article 178 of the Criminal Code (as amended in 1997) to 10 years in prison.

As one of the grounds for the refusal, the court pointed out that the convict had been punished twice for alcohol consumption. These violations characterize the convict from the negative side.

There are cases when convicts express disagreement with the penalties imposed. However, the procedure for appealing penalties is not regulated by law.

In this regard, it is necessary to develop in practice the application of Article 482 of the CPC, which regulates the process of appealing decisions and actions (inaction) of the body executing the punishment.

According to the reporting data, in 2023, only 1 complaint of a convicted person against the actions of the staff of the prison related to the execution of the sentence was considered. So, on January 11, 2023, the Shakhty City Court of the Karaganda region satisfied B.'s complaint about the illegal announcement of a remark to him, the determination of a negative degree of behavior and the transfer to normal conditions of detention.

However, on February 2, 2023, the Karaganda Regional Court overturned the decision of the court of first instance, since the fact that the convict violated the internal regulations of the institution and failed to comply with the legal requirements of the employees of the CUIS was objectively confirmed at a court hearing.

It should also be noted that the law establishes the same grounds for both parole and parole - this is full compensation for damage and (or) the absence of malicious violations of the established procedure for serving a sentence.

For example, on February 1, 2023, the Arshalynsky District Court of the Akmola region refused to grant asylum to A., who was sentenced to 3 years and 6 months in prison in 2019 under Part 1 of Article 106 of the Criminal Code.

The court found that the convicted person has 5 rewards, is not marked with penalties, is on reduced conditions of detention, and has been assigned 3 positive degrees of behavior.

The reason for the refusal of the DMN was partial reimbursement of court costs (35 thousand tenge was repaid, 45 thousand tenge was not repaid).

In another case, on September 25, 2023, the Aktobe city Court No. 2 denied parole to S., who was sentenced to 6 years in prison in 2020 under Part 3 of Article 106 of the Criminal Code.

It follows from the materials submitted to the court that the convicted person has 3 incentives, has been assigned the third positive degree of behavior, has no penalties, and is on reduced conditions of detention. The only reason for the refusal of parole was partial repayment of the damage (out of 977 thousand tenge, 828 thousand tenge was not reimbursed).

Thus, the courts are guided by the same criteria when considering applications for parole and DMN. Whereas these legal institutions are completely different.

As noted above, parole is the termination of a criminal sentence imposed by a court earlier than the prescribed period, and the DMN is an institution for improving the situation of a convicted person, in which the convicted person continues to serve a sentence, but of a milder type than determined by the verdict.

Accordingly, the grounds for parole and DMN should differ. In this regard, it is advisable to amend Article 73 of the Criminal Code and provide one of the grounds for satisfying the petition is not only full, but also partial compensation for damage.

Failure to pay small amounts when the convicted person takes measures to repay the damage caused often prevents the replacement of punishment with a milder form to the convicted person, who has proved his correction by his behavior.

At the same time, commutation of punishment in no way relieves the convicted person of the obligation to pay the amounts collected by the court verdict, and the presence of more jobs than in places of deprivation of liberty, on the contrary, makes it possible to execute the court's decision in this part in a shorter time.

The wording of Articles 72, 73 of the Criminal Code is also controversial, according to which the absence of malicious violations of the order of serving a sentence is provided as one of the sufficient grounds for parole and detention.

In addition, the provisions of the first and second paragraphs of the first part of Article 72 of the Criminal Code contradict each other.

If in the first paragraph the legislator indicates that for parole the court must come to the conclusion about the correction of the convicted person, then in the second – full compensation for damages (and a civil claim may not be brought to the victims) and the absence of malicious violations of the order of serving the sentence establishes as indisputably sufficient grounds for parole.

However, early termination of the sentence or substitution of a more lenient form of imprisonment should take place only when there is no need for further isolation from society in order to correct the convicted person.

Therefore, the provision of the regulatory decree is absolutely correct that the actual serving of a part of the sentence provided for by law by a convicted person cannot serve as an unconditional basis for parole or parole.

There are examples of convicts who are formally subject to release by virtue of paragraph 2 of Part 1 of Article 72 of the Criminal Code, whose correction has not actually occurred.

So, on June 11, 2021, the Kostanay city court repeatedly convicted B. and sentenced him to 3.6 years in prison under Articles 378, Part 1, 188, Part 3, paragraph 2 of the Criminal Code. A dangerous recidivism of crimes was recognized in his actions. On March 27, 2023, he was released on parole by the Ayyrtau District Court of the North Kazakhstan region for an unserved term of 1 year and 5 months.

As arguments, the court indicated the presence of 2 incentives, the absence of penalties, serving a sentence in light conditions, the presence of a second positive degree of behavior, and repayment of damages under the sentence.

However, already in May 2023, the convict committed crimes again, and by the court's verdict of August 7, 2023, he was sentenced to 4.6 years in prison under art.188, part 3, paragraph 2, art.187, Part 2 of the Criminal Code.

The court, based on the provisions of paragraph 2 of Part 1 of Article 72 of the Criminal Code, had no grounds for refusing B.'s parole. However, it is clear from his subsequent actions that he did not embark on the path of correction.

Such facts are not isolated. In this light, the wording of Article 72 of the Criminal Code with the exception of the second paragraph of the first part is more consistent with the meaning and purpose of the legal institutions under study, and in Article 73 of the Criminal Code, instead of the absence of violations, it is necessary to take into account the behavior of the convicted person while serving his sentence.

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 malicious 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 - NP VS "On the judicial practice of parole and ZMN").

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