Substitution of the Unserved Part of a Sentence of Imprisonment with a Fine
According to Part 3 of Article 73 of the Criminal Code, when substituting the unserved portion of a sentence, the court may impose a fine at the rate of 1 Monthly Calculation Index (MCI) per 4 days of imprisonment, or a restriction of liberty at the rate of 1 day of restriction for 1 day of imprisonment.
Pursuant to Part 2 of Article 73 of the Criminal Code, the unserved part of the sentence may be substituted with a more lenient type of punishment after the convict has actually served not less than one-quarter of the term for crimes of minor and medium gravity, or one-third of the term for serious crimes.
For instance, on 23 February 2023, Court No. 2 of the city of Kyzylorda substituted the unserved part of a sentence of 1 year and 9 months of imprisonment imposed on convict A. under Article 366, Part 3 of the Criminal Code, with a fine in the amount of 560,625 KZT.
In another case, T., who had been convicted under Article 189, Part 4, Subparagraph 2) of the Criminal Code and sentenced to 7 years of imprisonment, had the unserved part of his sentence—3 years, 9 months, and 28 days—replaced by a fine of 1,271,894 KZT by a ruling of the court of the city of Qonayev dated 20 August of the current year.
These examples indicate that the conditions for applying fines as alternatives to imprisonment, as established in the Criminal Code, are unjustifiably lenient and disproportionate.
Such provisions of the law do not correspond to the objectives of criminal punishment—namely, the restoration of social justice and the correction of the offender. It is therefore proposed that necessary amendments be made to the Criminal Code.
It is suggested that the formula used for crediting time spent in pre-trial detention be applied in calculating fines: 1 day of detention equals 4 MCIs (as per Article 62, Part 3-1, Subparagraph 4 of the Criminal Code).
Accordingly, when substituting 3 years of imprisonment, the fine would amount to 15,949,440 KZT.
These measures would help ensure the corrective and preventive function of criminal punishment, particularly for individuals convicted of corruption-related offenses.
In Accordance with Article 39 of the Criminal Code, punishment shall be applied for the purpose of restoring social justice, correcting the offender, and preventing 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.
Provided that the conditions set forth in Articles 72, 73, 86, and 87 of the Criminal Code are met, convicts may be exempted from serving the full term of their sentence.
They may be granted parole (hereinafter "early conditional release" or ECR) or have their punishment substituted with a more lenient one (hereinafter "substitution with a more lenient punishment" or SMLP).
ECR and SMLP are acts of humanity and trust by the State toward the convict, who, through good behavior and efforts to redress harm during the period of serving the sentence, has demonstrated that further punishment is unnecessary.
The law obliges courts, when reviewing requests for ECR or SMLP, to thoroughly verify compliance with legal requirements, completeness of materials submitted, the expiration of timeframes that permit ECR or SMLP, and to comprehensively assess positive changes in the convict's behavior.
The decision rendered as a result of such a review must be well-reasoned and include a detailed justification of the conclusions reached by the court.
In recent years, there have been growing public concerns regarding the lack of clear criteria for granting ECR and SMLP, as well as insufficient transparency and objectivity in their application.
The institutions of ECR and SMLP play an important role in the criminal justice system by facilitating the rehabilitation of offenders and reducing the recidivism rate. ECR involves the early termination of a criminal sentence as a result of achieving the goals of punishment.
Typically, the parolee remains under probationary supervision, during which they must further demonstrate rehabilitation and comply with court-imposed obligations.
SMLP is a mechanism for improving the legal situation of the convict, whereby the sentence is replaced with a more lenient type of punishment.
These institutions are grounded in the principle of humanism. In this context, ECR and SMLP are designed to encourage convicts to reform and reintegrate into normal life as soon as possible.
The application of ECR and SMLP is conditioned by two primary legal criteria:
- Formal criterion – serving a prescribed portion of the sentence, absence of serious violations, and compensation for harm caused;
- Substantive criterion – the rehabilitation of the convict.
ECR and SMLP fall under the exclusive jurisdiction of the court.
Pursuant to Part 1 of Article 477 of the Criminal Procedure Code, such matters are resolved by the court having jurisdiction over the place of sentence enforcement.
The only grounds for judicial consideration of ECR or SMLP are a petition by the convict, or a petition by the Prosecutor General or their deputy within the framework of a procedural cooperation agreement. Under the previous CPC, such matters were considered based on a submission by the penal institution.
ECR applies to those serving imprisonment or restriction of liberty, while SMLP applies only to those sentenced to imprisonment. For persons who committed crimes while minors, ECR may also apply to correctional labor sentences, but SMLP is only applicable to imprisonment.
ECR and SMLP are not permitted in relation to certain categories of persons listed in Part 8 of Article 72 and Part 2 of Article 73 of the Criminal Code.
For example, ECR is not applicable to persons convicted of serious and especially serious corruption offenses, terrorist or extremist crimes resulting in fatalities, and similar categories.
Legal Framework
The main legal acts governing these matters include:
- The Constitution of the Republic of Kazakhstan;
- The Criminal Code of the Republic of Kazakhstan (CC);
- The Criminal Procedure Code of the Republic of Kazakhstan (CPC);
- The Criminal Executive Code of the Republic of Kazakhstan (CEC);
- The Regulatory Resolution of the Supreme Court "On Judicial Practice in Matters of Early Conditional Release from Serving Sentences, Substitution of the Unserved Part of the Sentence with a More Lenient Punishment, and Reduction of Sentence Terms" dated 2 October 2015, No. 6 (hereinafter – RRSC on ECR and SMLP).
Since the adoption of the current Criminal Code, its provisions concerning the application of ECR and SMLP have been amended multiple times, with corresponding adjustments to judicial practice.
Most amendments have been made as part of the strengthening of criminal policy regarding crimes that pose the greatest danger to society (e.g., terrorist crimes, corruption, crimes against the sexual integrity of minors, etc.).
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