Participation of Victims in the Consideration of Convicts’ Petitions for Conditional Early Release (CER) and for the Replacement of Punishment with a More Lenient One (RPL)
According to Part 5 of Article 480 of the Code of Criminal Procedure (CCP), when considering issues of CER or RPL, the participation of the convict, the defense counsel, the representative of the institution or body executing the punishment, and the prosecutor in the court hearing is mandatory.
The absence of the victim, the civil claimant, and their representatives does not prevent the consideration of the petition. Thus, the law does not establish the mandatory participation of the victim when considering a convict’s petition.
At the same time, Paragraph 4 of the Regulatory Resolution of the Supreme Court “On Judicial Practice of CER and RPL” obliges the court to duly notify the victim about the date, time, and place of the consideration of the petition. As summarization has shown, these rights of victims are not always respected, which does not contribute to the issuance of lawful judicial decisions.
For example, on May 18, 2023, the Turksib District Court of Almaty granted the petition for RPL of H., who had been convicted under Part 3 of Article 177 of the Criminal Code (1997 edition) to 3 years and 6 months of imprisonment.
In private complaints, the victims stated that the court had not notified them about the consideration of the convict’s petition. They learned about the court’s decision from the bailiff. They requested that the ruling be annulled, since the damage had not been compensated.
The appellate panel agreed with the victims’ arguments and annulled the court’s ruling due to the non-compensation of damages. Such cases are not isolated, as a result of which the victims’ rights to compensation for the harm caused are violated.
According to Article 39 of the Criminal Code, punishment is applied in order to restore social justice, as well as to rehabilitate the convict and to prevent the commission of new criminal offenses by the convict and by others.
Punishment does not pursue the aim of inflicting physical suffering or degrading human dignity.
When the conditions established by Articles 72, 73, 86, and 87 of the Criminal Code are met, convicts may not be required to serve the entire imposed punishment.
They may be released conditionally early (hereinafter – conditional early release or CER) or their punishment may be replaced with a more lenient one (hereinafter – replacement of punishment with a more lenient one or RPL).
CER and RPL are acts of humanity and trust by the state toward the convict, who, during the period of serving the sentence, through exemplary behavior and efforts to redress the harm, has proven that further serving of the punishment is unnecessary.
The law obliges courts, when considering issues of CER and RPL, to carefully verify the compliance of the convict’s petition with the established requirements, the completeness of the submitted materials, the occurrence of the terms giving the right to CER and RPL, and to comprehensively assess positive changes in the convict’s behavior.
The court decision adopted as a result of the petition’s consideration must be reasoned and contain a detailed justification of the conclusions reached by the court.
In recent years, opinions have been expressed in society about the lack of clear criteria for CER and RPL, as well as about the insufficient transparency and objectivity of their application.
The institutions of CER and RPL play an important role in the system of criminal law, contributing to the resocialization of convicts and the reduction of recidivism. CER is the termination of the criminal punishment imposed by the court before the set term due to the achievement of the punishment’s objectives.
At the same time, a conditionally released person is usually placed under probation supervision, during which they must ultimately prove their rehabilitation and fulfill the obligations imposed by the court.
RPL is an institution aimed at improving the position of the convict, whereby the imposed punishment is replaced with a more lenient type.
These institutions are based on the principle of humanism. In this context, CER and RPL are aimed at encouraging convicts toward quicker rehabilitation and return to normal life.
The law conditions the application of CER and RPL on two main criteria:
- serving a certain part of the imposed punishment, absence of malicious violations, and compensation for damage (formal criterion),
- rehabilitation of the convict (material criterion).
CER and RPL fall under the exclusive jurisdiction of the court.
Pursuant to Part 1 of Article 477 of the CCP, these issues are resolved by the court acting at the place of enforcement of the sentence.
The basis for the court’s consideration of issues of CER and RPL is only the petition of the convict, as well as a petition of the Prosecutor General or his deputy within the framework of a procedural cooperation agreement. Previously, under the old CCP, these issues were considered on the submission of the institution executing the punishment.
CER applies to convicts serving imprisonment or restriction of liberty, while RPL applies only to imprisonment. For persons who committed crimes as minors, CER also applies in cases of sentencing to correctional labor, while RPL applies only when sentenced to imprisonment.
CER and RPL are not applicable to categories of persons listed in Part 8 of Article 72 and Part 2 of Article 73 of the Criminal Code.
For example, CER does not apply to those convicted of serious and especially serious corruption crimes, terrorist or extremist crimes resulting in the death of people, and others.
In general, the issues of application of CER and RPL are detailed in Articles 72, 73, 86, and 87 of the Criminal Code, Articles 476, 477, 478, and 480 of the CCP, Articles 161, 162, and 169 of the Penal Enforcement Code, as well as in the Regulatory Resolution of the Supreme Court “On Judicial Practice of Conditional Early Release, Replacement of the Unserved Part of Punishment with a More Lenient Punishment, and Reduction of the Sentence Term” dated October 2, 2015, No. 6.
Since the adoption of the current Criminal Code, its provisions relating to CER and RPL have been repeatedly amended, and judicial practice has been adjusted accordingly.
In general, amendments to the legislation were introduced mainly in the framework of strengthening criminal policy regarding crimes posing the greatest threat to society (terrorist, corruption, crimes against the sexual inviolability of minors, etc.).
Regulatory and Legal Framework
The main regulatory legal acts governing the issues of generalization are:
- the Constitution (hereinafter – Constitution);
- the Criminal Code (hereinafter – CC);
- the Code of Criminal Procedure (hereinafter – CCP);
- the Penal Enforcement Code (hereinafter – PEC);
- the Regulatory Resolution of the Supreme Court “On Judicial Practice of Conditional Early Release, Replacement of the Unserved Part of Punishment with a More Lenient Punishment, and Reduction of the Sentence Term” dated October 2, 2015, No. 6 (hereinafter – RR of the SC “On Judicial Practice of CER and RPL”).
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