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Categories of Convicted Persons to Whom Parole (Conditional Early Release) Does Not Apply
Part 8 of Article 72 of the Criminal Code (CC) provides a list of categories of convicted persons to whom parole (conditional early release, hereinafter – Parole) does not apply.
By Law No. 384-VI dated 19 December 2020, amendments were introduced to Part 8 of Article 72 of the Criminal Code, establishing a prohibition on granting parole to persons convicted of serious and especially serious corruption offenses.
The only exceptions are cases where such offenses were committed by pregnant women, women with minor children, men who are single parents raising minor children, women aged 58 years and older, men aged 63 years and older, and persons with Group I or Group II disabilities.
These amendments entered into force on 30 December 2020.
On 12 September of the current year, amendments were introduced to the Rules on the Automated Distribution of Cases in Courts.
According to these amendments, the consideration of applications for parole and the replacement of the unserved portion of a sentence with a more lenient punishment (hereinafter – Replacement of Punishment) in corruption cases has been assigned to the chairpersons of regional courts, judicial panels, and district courts.
Courts also encounter difficulties when considering applications for parole submitted by persons convicted of offenses committed while they were minors against the sexual integrity of children under the age of 14.
Pursuant to paragraph 4 of Part 8 of Article 72 of the Criminal Code, parole shall not apply to persons convicted of crimes against the sexual integrity of minors, except where such an offense was committed by a person who had not reached the age of majority against a minor between the ages of 14 and 18.
Accordingly, a person who, while being a minor, committed an offense against the sexual integrity of a child under the age of 14 is not eligible for parole.
However, judicial practice in this category of cases is not uniform.
Note: The prohibition on granting parole to persons convicted of offenses against the sexual integrity of young children has been in force since the adoption of the current Criminal Code.
For example, on 20 March 2023, a judge of the Zhetysu District Court of Almaty granted the parole application of X., who had been convicted under Part 4 of Article 121 of the Criminal Code (the victim was 11 years old) by a judgment dated 26 September 2019.
This judicial act was not reviewed on appeal. However, ten days earlier (on 9 March 2023), the same judge, referring to the explicit prohibition established by Part 8 of Article 72 of the Criminal Code, denied parole to O., convicted under Part 4 of Article 121 of the Criminal Code (the victim was 7 years old).
The appellate court disagreed with this decision and, on 25 April 2023, overturned the ruling of the court of first instance and granted parole to O.
The position of the Almaty City Court is based on the premise that persons convicted of crimes committed while they were minors are, pursuant to Part 1 of Article 86 of the Criminal Code, unconditionally entitled to parole upon serving the statutory portion of their sentence, provided they have not committed any serious violations of the established regime.
Such conclusions, however, are inconsistent with the requirements of the law.
Article 72 of the Criminal Code regulates the general grounds for granting and revoking parole in respect of convicted persons. Article 86 of the Criminal Code contains only those provisions that differ from Article 72 due to the offender having been convicted for an offense committed while a minor. Therefore, parole for persons who committed offenses while under the age of eighteen is governed by both Articles 72 and 86 of the Criminal Code.
Pursuant to Article 39 of the Criminal Code, punishment is imposed for the purpose of restoring social justice, reforming the convicted person, and preventing the commission of new criminal offenses both by the convicted person and by others.
Punishment is not intended to inflict physical suffering or to degrade human dignity.
Subject to compliance with the conditions established by Articles 72, 73, 86, and 87 of the Criminal Code, convicted persons may be released without serving the full term of their sentence. They may either be granted parole (conditional early release) or have the unserved portion of their sentence replaced with a more lenient type of punishment.
If this translation is intended for publication, court practice, or an international legal report, I can also adapt it to formal legal English consistent with the style used by the Supreme Court of Kazakhstan, UN, OSCE, and Council of Europe documents.
Ниже приведен официальный юридический перевод на английский язык.
Parole (Conditional Early Release) and the Replacement of the Unserved Portion of a Sentence with a More Lenient Type of Punishment (hereinafter – Replacement of Punishment) constitute an act of humanity and trust on the part of the State towards a convicted person who, during the period of serving the sentence, has demonstrated through exemplary conduct and efforts to make amends for the harm caused that further serving of the sentence is no longer necessary.
The law requires courts, when considering applications for Parole and Replacement of Punishment, to thoroughly verify whether the convicted person's application complies with the statutory requirements, whether the submitted materials are complete, whether the statutory time limits entitling the applicant to Parole or Replacement of Punishment have been met, and to comprehensively assess the positive changes in the convicted person's behavior.
A court decision adopted following consideration of such an application must be reasoned and contain a detailed justification for the conclusions reached by the court.
In recent years, concerns have been expressed in society regarding the absence of clear criteria for granting Parole and Replacement of Punishment, as well as the insufficient transparency and objectivity in their application.
Accordingly, the present analytical review is intended to identify problematic issues arising in judicial practice and to develop the necessary measures to ensure its uniform application.
The institutions of Parole and Replacement of Punishment play an important role in the criminal justice system by facilitating the resocialization of convicted persons and reducing recidivism.
Parole (Conditional Early Release) is the termination of a criminal sentence imposed by a court before the expiry of the prescribed term due to the achievement of the objectives of punishment. As a rule, a person released on parole is placed under probation supervision, during which he or she must conclusively demonstrate rehabilitation and comply with the obligations imposed by the court.
Replacement of Punishment is a legal institution aimed at improving the legal position of a convicted person by replacing the imposed punishment with a more lenient type of punishment.
These institutions are founded upon the principle of humanity. In this context, Parole and Replacement of Punishment are intended to encourage convicted persons to achieve rehabilitation as quickly as possible and to return to a law-abiding life.
The law establishes two principal criteria for the application of Parole and Replacement of Punishment:
- Service of the prescribed portion of the sentence, absence of serious violations of the correctional regime, and compensation for the damage caused (formal criterion);
- Rehabilitation of the convicted person (substantive criterion).
The application of Parole and Replacement of Punishment falls within the exclusive jurisdiction of the courts. Pursuant to Part 1 of Article 477 of the Criminal Procedure Code, these matters shall be determined by the court exercising jurisdiction over the place where the sentence is being executed.
The sole grounds for judicial consideration of Parole or Replacement of Punishment are an application submitted by the convicted person or a petition submitted by the Prosecutor General or his/her Deputy within the framework of a procedural cooperation agreement. Under the previous Criminal Procedure Code, these matters were considered upon a submission by the institution responsible for the execution of the sentence.
Parole applies to persons serving sentences of imprisonment or restriction of liberty, whereas Replacement of Punishment applies only to persons serving sentences of imprisonment.
With respect to persons who committed criminal offenses while under the age of eighteen, Parole may also be applied where they have been sentenced to correctional labour, whereas Replacement of Punishment applies only where the sentence imposed is imprisonment.
Parole and Replacement of Punishment shall not apply to the 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 available to persons convicted of serious or especially serious corruption offenses, terrorist or extremist offenses resulting in loss of life, and other categories specified by law.
In general, the application of Parole and Replacement of Punishment is comprehensively regulated by 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 Penal Enforcement Code, as well as the Regulatory Resolution of the Supreme Court "On Judicial Practice Regarding Conditional Early Release from Serving a Sentence, Replacement of the Unserved Portion of a Sentence with a More Lenient Type of Punishment, and Reduction of the Imposed Sentence."
Since the adoption of the current Criminal Code, the provisions governing the application of Parole and Replacement of Punishment have been amended on numerous occasions, with corresponding adjustments in judicial practice.
Most legislative amendments have been introduced within the framework of strengthening criminal policy in relation to offenses posing the greatest threat to society, including terrorist offenses, corruption offenses, and offenses against the sexual integrity of minors.
Legal and Regulatory Framework Used in Preparing This Analytical Review
The principal legal instruments governing the issues addressed in this review are:
- the Constitution of the Republic of Kazakhstan (hereinafter – the Constitution);
- the Criminal Code of the Republic of Kazakhstan (hereinafter – the Criminal Code);
- the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – the Criminal Procedure Code);
- the Penal Enforcement Code of the Republic of Kazakhstan (hereinafter – the Penal Enforcement Code);
- the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 6 dated 2 October 2015 "On Judicial Practice Regarding Conditional Early Release from Serving a Sentence, Replacement of the Unserved Portion of a Sentence with a More Lenient Type of Punishment, and Reduction of the Imposed Sentence" (hereinafter – the Regulatory Resolution "On Judicial Practice Regarding Parole and Replacement of Punishment").
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