Participation of the victim or his representative in the consideration of applications for parole and ZMN

The effectiveness of his participation (part 6 of Article 480 of the CPC). The participation of the victim or his representative in the consideration of applications for parole and DMN is provided for in parts 9.10 of Article 478, part 5 of Article 480 of the CPC. According to them, the non-appearance of the victim or his representative, the civil plaintiff does not prevent the consideration of petitions. In accordance with paragraph 4 of the regulatory resolution, "the court is obliged to notify them of the date, time and place of consideration of the petition in an appropriate manner." Upon receipt of the material, as the study showed, the courts comply with the requirements of the law and notify the victims of the date, time and place of consideration of the material. Judicial acts not only reflect the opinion of the victims, but the court also takes it into account when making a decision on the merits. However, the victim's opinion is not decisive, but together with the other necessary conditions, it allows for legality and objectivity in making a decision. Thus, by the decree of the court No. 2 of Pavlodar dated November 25, 2020, the petition of the convicted E. for parole was granted. Along with other data that served as the basis for satisfaction, the court took into account the opinion of the victim, who did not object to satisfaction in view of the compensation of the damage to the convicts in full. Basically, the opinion of the victims who participated in the court session on the satisfaction or refusal of the petition depends on the compensation or lack of material and moral compensation for the claim under the verdict. Thus, by the decree of the court No. 2 of Pavlodar dated August 6, 2020, the petition of convict A. for parole was denied. When making the decision, the court, along with other data, took into account the opinion of the representative of the victims of LLP "A" and LLP "W", who objected to satisfying the petition due to non-compensation of damage to LLP in the amount of 7,725,610 tenge and 3,463,600 tenge, respectively. The participating prosecutor also adhered to this position. At the same time, the data provided on the number of victims who participated in the court hearing to consider petitions are low.

The participation of the victim or his representative in the consideration of applications for parole and ZMN

This is partly due to the fact that, according to the law, the victim's failure to appear does not prevent the court from considering the petition. Therefore, in most cases, the courts formally approach the notification of the latter. In addition, by the time the petitions were considered, i.e. after the passage of time, the victims could have changed their residential address and place of residence, left the country, etc. Thus, upon receipt of the material on the parole of T., convicted on August 2, 2006 under paragraphs "a, c" of part 3 of Article 179, paragraphs "g, z" of part 2 of Article 96, paragraphs "a, b" of part 3 of Article 175, part 3 of Article 24, paragraphs "a, b" of part 3 of Article 175 of the Criminal Code to 19 years of imprisonment, the victims were promptly notified of the review of the material. However, on behalf of the latter, no statements of participation or their opinion on the merits of the case were provided to the court. The addresses of the victims are taken from the materials of the criminal case reviewed in 2006 on the events of crimes that took place in 2005. However, within the framework of the activities of the Nauryzbay District Court of Almaty, the procedure for not informing victims about the date, time and place of consideration of the petition is practiced. In particular, M., who was convicted, including under part 4 of Article 188 of the Criminal Code, applied to the court for parole. The petition of the convicted person, despite the particularly large damage caused by the court verdict, was considered without notifying the victims. Thus, by the decision of the court No. 2 of the Baikonur district of the city of Nur-Sultan dated November 5, 2020, the petition of convict N. for parole from serving his sentence was granted. By the verdict of the Kostanay city Court No. 2 dated November 13, 2019, as amended by the resolution of the Judicial Board for Criminal Cases of the Kostanay Regional Court dated January 29, 2020, N. was found guilty under part 1 of Article 104 of the Criminal Code and sentenced to 3 years in prison to serve his sentence in a minimum security penal institution. The Court of first instance motivated its decision by the fact that the served term of N.'s imprisonment is 1 year 3 months, and the unserved term is 1 year 8 months 29 days. At the same time, he served part of the sentence established by Article 72 of the Criminal Code, is positively characterized by the administration of the institution, complies with internal regulations, has no penalties, is encouraged, maintains relations with family and relatives, has permanent residence and employment opportunities. The claims have been paid in full. N. the first positive degree of behavior has been established. There are no serious violations of the established procedure for serving a sentence.

However, the victim P. appealed against this decision, she asked to cancel the judicial act, arguing that the court did not take into account her opinion that due to the fault of the convicted N., she lost her son and breadwinner in her old age. As a result, by a decision of the appellate instance dated January 14, 2021, the decision of the district court was overturned and a new decision was issued rejecting N.'s request for conditional long-term release from serving her sentence and satisfying the victim's complaint. In this case, for the court of appeal, the victim's opinion was one of the decisive criteria for resolving the issue of cancellation of parole. In our opinion, this approach is unjustified, since, according to the case file, the claims for damages have been paid in full. The offense committed by H. belongs to the category of minor severity. He has fulfilled all the necessary requirements for parole and ZMN. The position of the courts is correct, which believes that the rights of the victim should not be violated when considering this category of cases, he should be notified of the time and place of consideration of the convicted person's petition, but the possibility of parole cannot depend solely on the opinion of the victim.

We believe that the court, being obliged to ensure the rights of participants in the proceedings to substantiate their positions on the case, should not be bound by their opinions. In order to ensure the correct and objective consideration of applications for parole and MLA, and the adoption of an informed decision by the court, it is necessary to take into account the opinion of the victim, on whose behalf social justice can be judged. In this regard, it seems advisable that the Institution or Body, upon receipt of a convicted person's petition for parole and a medical record, send a copy of it and a notice of sending the material for consideration to the court to the victim. Thus, the victim will be informed in advance of the convict's intentions to go to court and will be able to participate personally, or prepare his opinion to the court on this issue in writing. To implement this, it is necessary to create a unified register of victims and debtors for notaries and bailiffs, which can be used by the institution and the court. The analysis showed that the prosecutor participates in the review of all materials of the specified category. Basically, having studied the submitted material before the court begins its consideration, he argues his opinion at the court session with reference to the requirements of the law (Articles 72 and 73 of the Criminal Code), data characterizing the convict's personality, including encouragement and gratitude, the presence of violations and penalties, measures taken to repay damages, etc. Based on the results of the analysis regarding the sufficient reasonableness of the prosecutor's opinion and the effectiveness of his participation, some local courts have noted the issue of the degree of preparation of prosecutors for the court session. In their opinion, when reviewing the materials on parole and detention, most prosecutors do not familiarize themselves with the materials of the convicts' personal files in advance and do not substantiate their position. But since the prosecutor's office is a supervisory authority that monitors the legality of decisions made by the court, the prosecutor is obliged to justify his opinion on the satisfaction or refusal of parole or MLA, giving specific arguments in each case expressing his position, namely, for what reason the court asks to refuse or grant the petition. Only then will the convicted person and other participants in the court session fully understand the prosecutor's position. The petition of P., who was sentenced on March 2, 2018 under paragraphs 1), 4) of part 2 of Article 192 of the Criminal Code to 5 years in prison, was granted by the Ekibastuz City Court on August 7, 2020. The unserved sentence was commuted to restriction of liberty for a period of 2 years, 5 months, and 6 days. The examination was attended by the victim K., who did not object to the satisfaction of the convicted person's petition. The participating prosecutor also supported the petition, taking into account the data indicating the convict's correction. A similar position of the prosecutor, proceeding from the requirements of the law, with arguments, is observed in the overwhelming number of petitions considered. Thus, by the decree of the court No. 2 of Pavlodar dated February 13, 2020, U., who was sentenced under paragraph "b" of part 4 of Article 177 of the Criminal Code to 5 years of imprisonment in a medium-security penal colony, was denied a residence permit.

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