Issues of compliance with the norms of the Criminal procedure law when considering applications for parole from serving a sentence

In accordance with the requirements of Article 455 of the CPC, which regulates the procedure for resolving issues related to the execution of a sentence, when considering applications for parole for the specified period, the courts of the republic generally ensure the mandatory participation of the convicted person, defense attorney, and prosecutor. The court session was also attended by representatives of the body executing the punishment. The courts generally take measures to properly notify victims of the time and place of the parole hearing, as well as ensure that they can participate in the hearing. If the victims or their representatives were duly notified and there were no written statements or petitions on their part, as well as in cases where damage was caused to the interests of the State, the prosecutor's opinion was necessarily heard on the issue of respecting the rights of victims or the State. The study of the reviewed materials for the period of 2012 indicates that applications and submissions for parole from serving a sentence were considered within the time limit prescribed by law, violations in this part, according to the data of the EAIAS program, are available only in three materials. At the same time, the study of the materials showed that the courts had violated the requirements of the law when reviewing materials on parole.    The Law of March 26, 2007 No. 240-III "On Amendments and additions to certain Legislative Acts of the Republic of Kazakhstan on issues of the penal enforcement system", which entered into force on April 14, 2007, Article 455 of the CPC was supplemented by Part 6-1, according to which, when considering the issue of parole from serving a sentence, The opinion of the victim or his representative is taken into account, and if it is impossible for the victim or his representative to personally participate in court, written statements and petitions may be considered., If the victim or his representative is duly notified and there are no written statements and petitions on his part, as well as if damage is caused to the interests of the State, a prosecutor's opinion is required on the issue of respecting the rights of the victim or the State.

Issues of compliance with the norms of the Criminal procedure law when considering applications for parole from serving a sentence

Meanwhile, when reviewing the material, the courts do not always discuss the issue of respecting the rights of the victim and his representative, and the prosecutor's opinion on this issue is not heard. As a rule, judges limit themselves to notifying victims of the time of consideration of the material, whereas the law requires proper notification of the victim in order for the injured party to express its opinion on the convicted person's parole. When considering the material concerning convicted T., who was serving a sentence of eight years in prison under Part 3 of Article 103 of the Criminal Code of the Merken District Court of the Zhambyl region on April 04, 2008, the court did not discuss the issue of respecting the rights of the victim, and did not hear the prosecutor's opinion on this issue. The court granted the application for parole despite the fact that the injured party had not expressed its consent to the release of the convicted person. Similar violations were committed when reviewing materials against those convicted under Part 2 of Article 184 B., paragraph "b" of Part 2 of Article 178 of the Criminal Code, considered by the Alginsky district Court of the Aktobe region; against those convicted under part 1 of Article 321 of the Criminal Code, considered by the Kargalinsky district Court and against those convicted under paragraphs.a, b,c" of Part 2 of Article 175 of the Criminal Code, according to Part 1 of Article 96 of the Criminal Code, the Mugalzhar District Court No. 2 of the same region did not notify the victims about the consideration of the issue of parole by the courts.

Moreover, the issue of the possibility of considering a petition for parole in the absence of an unannounced victim was not discussed at the court hearing by these courts, the prosecutor's conclusions regarding the observance of the victim's rights were not heard, which indicates a gross violation by the presiding officers of the requirements of parts 6-1 of art.455 of the CPC. According to the materials studied, the responses received from the victims were rare, this is explained by the passage of a long time since the case was considered, the change of addresses and the unwillingness of the victims for one reason or another to respond to the submissions of the administrations of institutions and petitions of convicts. The law provides for a set of conditions under which a person may be released on parole from serving a sentence imposed by a court. According to Article 70 of the Criminal Code, "A person serving a prison sentence for law-abiding behavior, conscientious attitude to work, active participation in the work of amateur organizations and educational activities, taking measures to compensate for damage caused by a crime, and not needing to fully serve the sentence imposed by the court, may be released by the court on parole from serving the appointed sentence." the court of punishment." 

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