Return or Rejection of a Convicted Person's Petition for Parole and Commutation of Sentence
Pursuant to Part 7 of Article 480 of the Criminal Procedure Code (CPC), upon review of the petition, the court issues a ruling on granting the petition; rejecting the petition; or rejecting the petition for parole while granting a decision on commutation of sentence (CoS).
In addition, according to Clause 3 of the Regulatory Resolution of the Supreme Court on "Judicial Practice of Parole and Commutation of Sentence," the court also has the right to return the petition for proper documentation if the materials do not contain sufficient data for its review and it is impossible to supplement them in a court session.
However, courts have been found to unjustifiably return petitions, thereby violating the rights of convicted persons and causing unnecessary delays.
For instance, the Almaty City Court overturned the ruling of the Turksib District Court dated March 18, 2023, which returned the petition for CoS of convicted person B. The appellate instance noted that the court returned B.'s petition without making any effort to request materials from the correctional institution and examine them in a court hearing.
In some cases, courts have required convicted persons to provide information they do not possess. For example, the Kostanay Regional Court overturned the ruling of Court No. 2 of Kostanay dated August 24, 2023, concerning D., whose petition was returned to the court for a decision on the merits.
The basis for the annulment was the unjustified requirement to provide data on the residence of victims. On July 4, 2023, the Turksib District Court returned the petition for CoS of convicted person A. for proper documentation.
The court justified the return by stating that at the time, there was insufficient information to characterize the convicted person and allow for a lawful resolution of the matter.
However, on August 29, 2023, the appellate panel overturned the lower court's ruling and remanded the petition for substantive consideration, as Correctional Institution No. 72 had in fact provided the convict's personal file, as well as certificates regarding the served and unserved portions of the sentence, including records of commendations and disciplinary actions.
In this case, the petition was accompanied by information characterizing the convict and confirming the circumstances stated in the petition, such as the presence of minor children, permanent residence, stable social ties, and anticipated employment. Institution No. 72 also submitted the convict's personal file and certificates confirming the served and unserved sentence term, meaning that the court had sufficient information to decide on the merits.
There have also been instances where courts have returned petitions via letter, i.e., without issuing a formal ruling, which contradicts Clause 3 of the Regulatory Resolution and deprives the convict of the opportunity to appeal the judicial act.
For example, letters from the Jetisu District Court of Almaty returned without consideration the petitions of A. and B. Based on the above, courts should take necessary measures to prevent unjustified returns of petitions.
Pursuant to Article 39 of the Criminal Code (CC), punishment is applied to restore social justice, as well as to correct the convicted person and prevent the commission of new criminal offenses by both the convict and others.
Punishment is not intended to cause physical suffering or degrade human dignity.
Under the conditions established by Articles 72, 73, 86, and 87 of the CC, convicted persons may not serve their full sentence.
They may be released on parole (hereinafter referred to as "parole") or have their punishment replaced with a more lenient one (hereinafter referred to as "commutation of sentence" or "CoS").
Parole and CoS represent acts of humanity and trust by the state toward the convicted person, who, through exemplary behavior and efforts to redress harm, has demonstrated that they no longer require further incarceration.
The law obliges courts, when considering parole and CoS petitions, to carefully verify compliance with the established requirements, the completeness of the submitted materials, the fulfillment of the time criteria for eligibility, and to comprehensively evaluate the positive changes in the convict’s behavior.
The court’s decision on a petition must be well-reasoned and contain a detailed justification of the conclusions reached.
In recent years, public discourse has raised concerns about the lack of clear criteria for parole and CoS, as well as the insufficient transparency and objectivity of their application.
The institutions of parole and CoS play a crucial role in the criminal justice system, facilitating the resocialization of convicts and reducing recidivism. Parole constitutes the termination of a court-imposed criminal sentence before its expiration due to the achievement of the objectives of punishment.
As a rule, parolees are subject to probationary supervision during which they must conclusively demonstrate their rehabilitation and comply with the obligations imposed by the court.
CoS is a mechanism for improving the legal status of a convicted person by replacing the imposed punishment with a more lenient one.
These institutions are based on the principle of humanity. In this context, parole and CoS are designed to encourage convicts to reform and reintegrate into society as soon as possible.
The law stipulates the application of parole (UDO) and replacement of punishment with a milder type (ZMN) based on two main criteria:
Serving a certain part of the imposed sentence, absence of serious violations, and compensation for damages (formal criterion);
Rehabilitation of the convict (material criterion). UDO and ZMN fall under the exclusive jurisdiction of the court.
Pursuant to Part 1 of Article 477 of the Criminal Procedure Code (CPC), these matters are decided by the court operating at the place of sentence execution.
The basis for the court's consideration of UDO and ZMN is solely the petition of the convict, as well as the petition of the Prosecutor General or his deputy within the framework of a procedural cooperation agreement. Previously, under the former CPC, these matters were considered based on the submission of the institution executing the punishment.
UDO applies to convicts serving imprisonment or restriction of liberty, while ZMN applies only to those serving imprisonment. For individuals who committed crimes as minors, UDO also applies to those sentenced to corrective labor, while ZMN applies only to those sentenced to imprisonment.
UDO and ZMN cannot be applied to certain categories of persons listed in Part 8 of Article 72 and Part 2 of Article 73 of the Criminal Code (CC).
For example, UDO is not applied to those convicted of serious and especially serious corruption offenses, terrorist or extremist crimes resulting in loss of life, and others.
Overall, the application of UDO and ZMN is detailed in Articles 72, 73, 86, and 87 of the CC, Articles 476, 477, 478, and 480 of the CPC, Articles 161, 162, and 169 of the Penal Execution Code (PEC), as well as the Normative Resolution of the Supreme Court (SC) "On Judicial Practice of Parole and Replacement of Unserved Sentence with a Milder Punishment" (SC NP "On UDO and ZMN") dated October 2, 2015, No. 6.
Since the adoption of the current CC, its provisions regarding the application of UDO and ZMN have been amended multiple times, leading to corresponding adjustments in judicial practice.
Most legislative amendments have been introduced as part of strengthening criminal policy regarding crimes posing the greatest threat to society (terrorist, corruption-related, and offenses against the sexual integrity of minors, among others).
Regulatory Legal Framework
The main regulatory legal acts governing the issues of generalization include:
The Constitution;
The Criminal Code (CC);
The Criminal Procedure Code (CPC);
The Penal Execution Code (PEC);
The Normative Resolution of the Supreme Court "On Judicial Practice of Parole, Replacement of Unserved Sentence with a Milder Punishment, and Reduction of the Imposed Sentence Term" dated October 2, 2015, No. 6 (SC NP "On UDO and ZMN").
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