Conditional early release upon fulfillment of the terms of the procedural agreement
By court order no.2 of the Medeu district of Almaty on January 12, 2023, the petition for parole of Zh., convicted under Article 106, Part 1 of the Criminal Code to 3 years of restriction of liberty, was granted.
The court's decision is motivated by the fulfillment by the convicted person of all the conditions of the procedural agreement, which, according to paragraph 5 of Part 3 of Article 72 of the Criminal Code, is the basis for parole after serving 1/4 of the sentence imposed for a serious crime.
However, the court did not take into account that a plea agreement was concluded with the convicted person at the investigation stage, whereas the basis for parole may be the fulfillment of the terms of the cooperation agreement (paragraphs 2-1 of the NP VS "On judicial practice of parole and DMN").
Thus, the convicted person was unlawfully released by the court earlier than the deadline.
The practice of ZMN imprisonment for a fine.
According to Part 3 of Article 73 of the Criminal Code, when replacing the unserved part of the sentence, the court may impose a fine at the rate of 1 MCI for 4 days of imprisonment or restriction of liberty at the rate of 1 day of restriction of liberty for 1 day of imprisonment.
By virtue of Part 2 of Article 73 of the Criminal Code, the unserved part of the punishment may be replaced by a milder type of punishment after the convict has actually served at least 1/4 of the sentence for committing crimes of minor and moderate severity, 1/3 of the sentence for serious crimes.
For example, on February 23, 2023, Court No. 2Kyzylorda the unserved punishment in the form of imprisonment for a period of 1 year and 9 months of the convicted person under art.366 Part 3 of the Criminal Code was replaced by a fine in the amount of 560,625 tenge.
In another case, T., who was sentenced to 7 years in prison under art.189, part 4, paragraph 2) of the Criminal Code, was fined 1,271,894 tenge by the Konayev city court on August 20. The unserved part of the sentence – 3 years, 9 months, 28 days - was replaced by a fine of 1,271,894 tenge.
The examples given indicate that the conditions set out in the Criminal Code for the application of a fine as an alternative to imprisonment are unreasonably lenient and disproportionate.
This provision of the law does not meet the goals of criminal punishment – the restoration of social justice and the correction of convicts.
It is proposed to make the necessary amendments to the Criminal Code.
To calculate the fine, apply the formula that is used when calculating the period of detention.
1 day of detention is counted for 4 MCI fines (art.62, part 3-1, paragraph 4) of the Criminal Code).
Accordingly, if 3 years of imprisonment are replaced, the fine will amount to 15,949,440 tenge.
These measures will ensure the corrective and preventive effect of criminal punishment against persons who have committed corruption crimes, among other things.
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 sentence may be commuted.
to a more lenient one (hereinafter referred to as the replacement of punishment with its milder form or DMN).
Parole and parole is 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.
The law 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.
Thus, this summary will make it possible to identify problematic issues arising in judicial practice and develop the necessary measures to ensure its uniformity.
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 sentence, the absence of malicious violations and compensation for damage (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.).
The regulatory framework used in carrying out this generalization.
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);
- the normative resolution of the Supreme Court "On 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 referred to as NP VS "On judicial practice of UDO and DMN").
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