Issues of participation of victims in the consideration of applications for parole or commutation of punishment
According to Part 5 of Article 480 of the Code of Criminal Procedure, when considering the issue of parole or MLA, the participation in a court hearing of a convicted person, a defense lawyer, a representative of an institution or body executing a sentence, and a prosecutor is mandatory. The non-appearance of the victim, the civil plaintiff and their representatives does not prevent the consideration of the petition.
Thus, the law does not establish the obligation for the victim to participate in the consideration of the convicted person's petition.
At the same time, paragraph 4 of the NP of the Supreme Court "On judicial practice of UDO and DMN" obliges the court to duly notify the victim of the date, time and place of consideration of the petition.
As the generalization has shown, these rights of victims are not always respected, which does not facilitate the courts' legal rulings.
For example, on May 18, 2023, the Turksib District Court of Almaty granted a petition for the release of H., who was sentenced under Part 3 of Article 177 of the Criminal Code (1997 edition) to 3 years and 6 months in prison.
In private complaints, the victims indicated that the court had not notified them of the consideration of the convicted person's petition. We learned about the court's decision from the bailiff. They asked to cancel the decision, as they have not been compensated for the damage.
The appeals board agreed with the arguments of the victims and overturned the court's decision due to non-compensation for damages.
Such facts are not isolated, as a result of which the rights of victims to compensation for damage are violated.
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).
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.
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 rules 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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