Commentary on Article 64. Cancellation of Conditional Conviction of the Criminal Code of the Republic of Kazakhstan

1. If, before the expiration of the probation supervision period, a conditionally convicted person has demonstrated through their conduct that they have reformed, the court, upon the submission of the body exercising probation supervision, may issue a ruling cancelling the conditional conviction and expunging the convicted person's criminal record. In this case, the conditional conviction may be cancelled after at least half of the established period has elapsed.

2. Upon the submission of the body exercising probation supervision, the court may extend the probation supervision period, but for no more than one year, in cases where the conditionally convicted person has committed:

1) an administrative offense encroaching upon public order and morality, the rights of minors, the person, and in the sphere of family and domestic relations, for which an administrative penalty has been imposed on that person;

2) intentional damage (destruction) of electronic monitoring devices, or failure to appear for registration without a valid reason, or a change of place of residence without notifying the body exercising probation supervision;

3) a criminal misdemeanor.

3. In the event that a conditionally convicted person fails to perform the obligations imposed by the court or repeatedly commits violations specified in Part Two of this Article, the court, upon the submission of the body specified in Part One of this Article, shall issue a ruling cancelling the conditional conviction and enforcing the punishment imposed by the court's judgment, while in respect of a convicted minor, the court may extend the probation supervision period again, but for no more than one year.

4. In cases where, during the probation supervision period, a conditionally convicted person commits a crime through negligence or an intentional minor-gravity crime, and where a conditionally convicted minor commits a minor-gravity or medium-gravity crime, the issue of cancelling or maintaining the conditional conviction shall be resolved by the court when imposing punishment for the new crime.

5. In cases where, during the probation supervision period, a conditionally convicted person commits an intentional medium-gravity, grave or especially grave crime, and a minor commits a grave or especially grave crime, the court shall cancel the conditional conviction and impose punishment in accordance with the rules for imposing punishment on the aggregate of sentences; punishment shall also be imposed according to these same rules in the cases provided for in Part Four of this Article.

As a general rule, the execution of a conditional conviction ends upon the expiration of the probation supervision period, while the criminal record is automatically expunged pursuant to subparagraph 1) of paragraph 3 of Article 79 of the Criminal Code.

A special place in criminal law is occupied by ensuring the enforcement of criminal liability or its adjustment depending on the law-abiding conduct of a conditionally convicted person during probation supervision. The law-abiding conduct of such a convicted person may be encouraged by the court through a reduction in the duration of probation supervision and, conversely, probation supervision may be extended in respect of persons who fail to comply with the requirements of conditional conviction (Parts 1 and 2 of Article 64 of the Criminal Code).

Part 1 of the Article under consideration provides for the possibility of early cancellation of a conditional conviction by the court and expungement of the convicted person's criminal record. For this purpose, firstly, before the expiration of the probation supervision period, the conditionally convicted person must demonstrate through their conduct that they have reformed, and, secondly, at least half of the established probation supervision period must have elapsed. Where these conditions are met, the court, having considered the submission of the body exercising supervision over the conduct of the conditionally convicted person, having concluded that it is justified and having satisfied itself that the conditionally convicted person has reformed, may issue a ruling on the early cancellation of the conditional conviction and the early expungement of the convicted person's criminal record. In cases where the conditionally convicted person has been required to undergo a course of treatment for alcoholism, drug addiction or substance abuse, such a submission may be considered by the court only if the convicted person has conscientiously fulfilled these obligations. If the court finds the arguments set out in the submission insufficiently convincing, it must issue a decision refusing to grant it.

It should be borne in mind that there is no statutory definition of the concept of “having demonstrated one's reformation.” This concept is evaluative in nature.

Indicators that a convicted person is demonstrating reformation may include remorse for committing the crime; admission of guilt; strict compliance with the obligations imposed by the court during probation supervision; law-abiding conduct; refusal to consume alcoholic beverages and narcotic drugs; conscientious attitude towards work and studies; and care for one's family.

Part 2 of Article 64 of the Criminal Code provides for the possibility of extending the probation supervision period by the court, but for no more than one year, in cases where the conditionally convicted person has committed:

an administrative offense encroaching upon public order and morality, the rights of minors, the person, and in the sphere of family and domestic relations, for which an administrative penalty has been imposed on that person;

intentional damage (destruction) of electronic monitoring devices, or failure to appear for registration without valid reasons, or a change of place of residence without notifying the body exercising probation supervision;

a criminal misdemeanor.

These same provisions are contained in subparagraphs 1), 2) and 3) of Part 1 of Article 176 of the Penal Enforcement Code.

The grounds for extending the probation supervision period established in Part 2 of Article 64 of the Criminal Code are uniform for both minors and persons who have reached the age of majority.

Administrative offenses encroaching upon public order and morality include the provisions contained in Chapter 25, “Administrative Offenses Encroaching upon Public Order and Morality,” of the Code of Administrative Offenses of the Republic of Kazakhstan. Administrative offenses encroaching upon the rights of minors include the provisions contained in Chapter 12, “Administrative Offenses Encroaching upon the Rights of Minors,” of the Code of Administrative Offenses of the Republic of Kazakhstan. Administrative offenses encroaching upon the person in the sphere of family and domestic relations include the provisions contained in Chapter 10, “Administrative Offenses Encroaching upon Personal Rights,” of the Code of Administrative Offenses of the Republic of Kazakhstan.

Criminal misdemeanors include criminal offenses provided for by articles (parts of articles) of the Special Part of the Criminal Code, the sanctions of which do not provide for punishment in the form of restriction of liberty, deprivation of liberty or the death penalty. As follows from the content of Part 2 of the Article under consideration, a mandatory condition for extending the probation supervision period of a conditionally convicted person is the imposition of an administrative penalty on that person for an administrative offense encroaching upon public order and morality, the rights of minors, the person, and in the sphere of family and domestic relations. Here, attention should be drawn to the fact that, in relation to an administrative offense, only a violation connected with an encroachment upon public order is taken into account. Administrative offenses of other types are not covered by the scope of Part 2 of Article 64 of the Criminal Code.

A violation of public order includes, for example, the commission by a conditionally convicted person of petty hooliganism during the probation supervision period (Article 434 of the Code of Administrative Offenses), for which an administrative penalty has been imposed on the conditionally convicted person. At the same time, an administrative penalty that has been extinguished due to the expiration of the limitation period or withdrawn in accordance with the established procedure cannot be taken into account in this case.

The extension of the probation supervision period established by the court's judgment for a conditionally convicted person, where the grounds provided for in Part 2 of Article 64 of the Criminal Code exist, is a right of the court rather than an obligation. Therefore, taking into account the circumstances of the act committed by the conditionally convicted person, the court may also refuse to extend the probation supervision period.

Finally, it follows from the content of Part 2 of the Article under consideration that the possibility provided therein of extending the probation supervision period by no more than one year applies equally to both minors and persons who have reached the age of majority. At the same time, subparagraph 3) of Part 1 of Article 176 of the Penal Enforcement Code establishes an extension of the probation supervision period for adults by one year and, in respect of minors, by no more than six months. The legislator should eliminate these contradictions.

In accordance with Part 3 of the Article under consideration, where an adult conditionally convicted person fails to perform the obligations imposed by the court or repeatedly commits the violations specified in Part 2 of the Article under consideration, the court, upon the submission of the body exercising probation supervision, shall issue a ruling cancelling the conditional conviction and enforcing the punishment imposed by the court's judgment.

In this case, cancellation of the conditional conviction is an obligation of the court rather than its right. Upon cancellation of the conditional conviction, the convicted person is sent to the institution of the penal enforcement system specified in the court's judgment to serve the entire term of imprisonment imposed by the court. At the same time, the portion of the probation supervision period already served is not credited towards the term of the conditional sentence of imprisonment imposed by the court.

If the basis for cancelling the conditional conviction was the repeated commission of a criminal misdemeanor by the conditionally convicted person, the court imposes punishment in accordance with the rules established in Article 60, “Imposition of Punishment on the Aggregate of Sentences,” of the Criminal Code, that is, it fully or partially adds the unserved portion of the punishment under the previous judgment to the punishment imposed under the latest court judgment for the repeated commission of the criminal misdemeanor. The entire term of conditional imprisonment imposed by the court is considered unserved. For example, a person sentenced to three years of imprisonment conditionally commits a criminal misdemeanor again after two years of the probation supervision period have elapsed (from the date on which the judgment entered into legal force). The court cancels the conditional conviction and imposes a new punishment for the criminal misdemeanor in the form of 50 days of arrest, and may add to this punishment the unserved portion of the punishment under the previous judgment — three years of imprisonment. In accordance with subparagraph 1) of Part 1 of Article 61 of the Criminal Code, one day of imprisonment corresponds to one day of arrest. The convicted person may ultimately be sentenced to three years, one month and 20 days.

In accordance with Part 3 of the Article under consideration, where a conditionally convicted minor fails to perform the obligations imposed by the court or a conditionally convicted person repeatedly commits the violations specified in Part 2 of the Article under consideration, the court, upon the submission of the body exercising probation supervision in respect of the convicted person, may extend the probation supervision period again, but for no more than one year. In this case, this is a right of the court rather than an obligation.

If, during the probation supervision period, a conditionally convicted person commits a crime through negligence or an intentional minor-gravity crime, and a conditionally convicted minor commits a minor-gravity or medium-gravity crime, the issue of cancelling or maintaining the conditional conviction shall be resolved by the court when imposing punishment for the new crime (Part 4 of Article 64 of the Criminal Code). In this case, cancellation is permitted where there has been negative conduct during the probation supervision period and entails the imposition of punishment on the aggregate of sentences. At the same time, the portion of the probation supervision period that has elapsed by the time the new crime is committed is not credited towards the term of the punishment imposed conditionally.

If the conditional conviction is maintained, the person will actually serve the punishment imposed under the new judgment for the newly committed crime, while continuing to remain conditionally convicted under the previous judgment. The punishment for the newly committed crime and the punishment conditionally imposed for the first crime are not added together; punishment is imposed only for the new crime and is served independently, while the remaining probation supervision period established under the first judgment is maintained.

According to the second paragraph of Part 3 of Article 63 of the Criminal Code, conditional conviction may also be applied to minors who repeatedly commit minor-gravity and medium-gravity crimes during the probation supervision period while under conditional conviction. If punishment is conditionally imposed again under the new judgment, the convicted person will have two probation supervision periods, each of which begins on the date the respective judgment enters into legal force. In such a case, each judgment shall be enforced independently.

It should be borne in mind that the repeated application of conditional conviction to a person who committed a crime while a minor is a right of the court rather than an obligation, that is, the court may also refrain from applying conditional conviction to a minor who has committed a new minor-gravity or medium-gravity crime during the probation supervision period.

Where conditional conviction is applied again, there is no need to determine the final punishment on the aggregate of sentences in accordance with Article 60 of the Criminal Code, since in such a case the previous and subsequent judgments are enforced independently.

It should be borne in mind that where an adult conditionally convicted person commits a crime through negligence or an intentional minor-gravity crime during the probation supervision period, the possibility of imposing a conditional sentence under the second judgment is excluded, since the Criminal Code provides for such a possibility only in respect of minors.

Mandatory cancellation of conditional conviction in accordance with Part 5 of Article 64 of the Criminal Code is provided for in cases where, during the probation supervision period, a conditionally convicted person commits an intentional medium-gravity, grave or especially grave crime, and a minor commits a grave or especially grave crime. In this case, the court cancels the conditional conviction and imposes punishment in accordance with the rules for imposing punishment on the aggregate of sentences (Article 60 of the Criminal Code), i.e. the punishment imposed under the latest court judgment is partially or fully supplemented by the unserved portion of the punishment under the previous court judgment. The final punishment on the aggregate of sentences must be greater than both the punishment imposed for the newly committed criminal offense and the unserved portion of the punishment under the previous court judgment (Part 4 of Article 60 of the Criminal Code).

Punishment is imposed according to these same rules in the cases provided for in Part 4 of the Article under consideration.

According to Part 2 of Article 176 of the Penal Enforcement Code, where a conditionally convicted person fails to perform the obligations imposed by the court or repeatedly commits the violations specified in Part 1 of Article 176 of the Penal Enforcement Code, as well as where such person absconds from probation supervision, the probation service submits to the court a motion to cancel the conditional conviction and enforce the punishment imposed by the court's judgment, and, in respect of a convicted minor, to extend the probation supervision period by no more than one year.

A person absconding from probation supervision is recognized as a conditionally convicted person whose whereabouts have not been established for more than fifteen days from the date on which that person failed to appear for registration at the probation service (Part 3 of Article 176 of the Penal Enforcement Code).

In the event that a conditionally convicted person damages (destroys) electronic monitoring devices, the probation service draws up an act. In the event of intentional damage (destruction) of electronic monitoring devices, conditionally convicted persons shall bear material liability in accordance with the procedure established by law.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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