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Replacement of a Sentence with a Lighter Type – Replacement of Imprisonment with a Fine
According to Part 3 of Article 73 of the Criminal Code, when replacing the unserved part of a sentence, the court may impose a fine calculated at the rate of 1 MCI for every 4 days of imprisonment, or restriction of liberty calculated at the rate of 1 day of restriction of liberty for 1 day of imprisonment.
Pursuant to Part 2 of Article 73 of the Criminal Code, the unserved part of a sentence may be replaced with a lighter type of punishment after the convicted person has actually served at least one-quarter of the sentence for minor and medium-gravity crimes, or one-third of the sentence for serious crimes.
For example, on February 23, 2023, Court No. 2 of Kyzylorda replaced the unserved sentence of 1 year and 9 months of imprisonment imposed on person A. under Part 3 of Article 366 of the Criminal Code with a fine of 560,625 KZT.
In another case, T., convicted under subparagraph 2) of Part 4 of Article 189 of the Criminal Code to 7 years of imprisonment, by a ruling of the court of Qonaev dated August 20 of this year, had the unserved part of the sentence – 3 years, 9 months, and 28 days – replaced with a fine of 1,271,894 KZT.
The given examples indicate that the conditions for applying a fine as an alternative to imprisonment set forth in the Criminal Code are unreasonably lenient and disproportionate.
Such a legal provision does not meet the objectives of criminal punishment – the restoration of social justice and the rehabilitation of convicts. It is proposed to introduce the necessary amendments to the Criminal Code.
To calculate the fine, it is proposed to apply the formula used for crediting time spent in pre-trial detention: 1 day in detention is counted as 4 MCI in fines (Part 3-1, subparagraph 4) of Article 62 of the Criminal Code).
Accordingly, when replacing 3 years of imprisonment, the fine would amount to 15,949,440 KZT.
These measures would help ensure the corrective and preventive impact of criminal punishment on persons, including those convicted of corruption-related crimes.
Pursuant to Article 39 of the Criminal Code, punishment is applied for the purpose of restoring social justice, as well as rehabilitating the convict and preventing the commission of new criminal offenses both by the convicted person and by others.
Punishment is not intended to cause physical suffering or degrade human dignity.
If the conditions established by Articles 72, 73, 86, and 87 of the Criminal Code are met, convicts may not have to serve their full sentence.
They may be granted parole (hereinafter – parole) or have their sentence replaced with a lighter type of punishment (hereinafter – replacement of sentence with a lighter type, or RSLT).
Parole and RSLT are acts of humanity and trust by the state toward a convict who, during the serving of the sentence, through exemplary behavior and efforts to make amends, has demonstrated that they no longer require further imprisonment.
The law obliges courts, when considering parole and RSLT applications, to carefully verify compliance with the established requirements, the completeness of submitted materials, the expiry of the time limits giving the right to parole or RSLT, and to comprehensively assess positive changes in the convict's behavior.
The court’s decision following the review of such an application must be well-reasoned and contain a detailed justification of its conclusions.
In recent years, public opinion has reflected concerns over the lack of clear criteria for granting parole and RSLT, as well as insufficient transparency and objectivity in their application.
The institutions of parole and RSLT play an important role in the criminal justice system, contributing to the re-socialization of convicts and reducing recidivism. Parole is the early termination of a court-imposed criminal sentence due to the achievement of the punishment’s objectives.
In relation to a conditionally released person, probation supervision is generally established, during which they must prove their final rehabilitation and fulfill the obligations imposed by the court.
RSLT is an institution for improving the legal situation of a convict, in which the imposed sentence is replaced with a lighter type of punishment.
The principle of humanity underlies these institutions. In this context, parole and RSLT are aimed at encouraging convicts to rehabilitate as soon as possible and return to a normal life.
The law sets two main criteria for applying parole and RSLT:
- Serving a certain portion of the sentence, absence of persistent violations, and compensation for damage (formal criterion),
- Rehabilitation of the convict (material criterion).
Parole and RSLT are within the exclusive jurisdiction of the court.
Under Part 1 of Article 477 of the Criminal Procedure Code, these matters are resolved by the court acting in the place where the sentence is served.
The basis for the court to consider parole and RSLT is only an application by the convict, or an application by the Prosecutor General or their deputy within the framework of a procedural cooperation agreement. Previously, under the old CPC, these matters were considered upon submission by the institution executing the sentence.
Parole applies to convicts serving imprisonment or restriction of liberty, while RSLT applies only to imprisonment. For persons who committed crimes as minors, parole may also apply when sentenced to correctional labor, while RSLT applies only to imprisonment.
Parole and RSLT do not apply to certain categories of persons listed in Part 8 of Article 72 and Part 2 of Article 73 of the Criminal Code.
For example, parole is not applied to persons convicted of serious and particularly serious corruption crimes, terrorist or extremist crimes, crimes resulting in the death of people, and others.
In general, the issues of parole and RSLT are detailed in Articles 72, 73, 86, and 87 of the Criminal Code, Articles 476, 477, 478, and 480 of the Criminal Procedure Code, Articles 161, 162, and 169 of the Criminal Executive Code, as well as in the Normative Resolution of the Supreme Court “On Judicial Practice of Parole from Serving a Sentence, Replacement of the Unserved Part of a Sentence with a Lighter Type of Punishment, and Reduction of the Term of the Imposed Sentence” dated October 2, 2015, No. 6.
Since the adoption of the current Criminal Code, its provisions concerning the application of parole and RSLT have been amended several times, and judicial practice has been adjusted accordingly.
In most cases, legislative amendments were made as part of tightening criminal policy for crimes posing the greatest threat to society (terrorist, corruption-related, sexual offenses against minors, etc.).
Regulatory Framework
The main regulatory legal acts governing the issues under review are:
- The Constitution (hereinafter – the Constitution);
- The Criminal Code (hereinafter – the CC);
- The Criminal Procedure Code (hereinafter – the CPC);
- The Criminal Executive Code (hereinafter – the CEC);
- The Normative Resolution of the Supreme Court “On Judicial Practice of Parole from Serving a Sentence, Replacement of the Unserved Part of a Sentence with a Lighter Type of Punishment, and Reduction of the Term of the Imposed Sentence” dated October 2, 2015, No. 6 (hereinafter – NR SC “On Judicial Practice of Parole and RSLT”).
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