NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of December 25, 2007 No. 10

About parole from punishment and replacement of unexpired part of punishment with softer type of punishment

For the purpose of forming of the correct court practice on application of the legislation on parole from punishment and replacement of unexpired part of punishment with softer type of punishment the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:

1. Draw the attention of courts that exact and steady execution of requirements of the penal statute about parole from punishment and replacement of unexpired part of punishment with milder pinishment has extremely important value for correction of convicts and the prevention of recurrent crime.

2. According to Article 455 of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure), questions of parole, of replacement of unexpired part of punishment with softer type of punishment are considered by court according to the petition of the body knowing execution of the punishment or for the petition of the specialized state body providing correction of minors, and concerning persons serving sentence in disciplinary military unit - according to the petition of command of disciplinary military unit.

3. According to Item nine of Article 169 of the Penitentiary code of the Republic of Kazakhstan (further - WICK), in case of departure of the condemned part of term of punishment established by the law, the administration of the organization or body performing punishment shall consider question in a month and take out the petition for representation or the resolution on refusal in representation to parole of serving sentence or to replacement of unexpired part of punishment with softer type of punishment which is taken to the prosecutor for the subsequent introduction to court. The prosecutor, having studied justification and legality of the petition, in case of consent with it takes material to court in case of disagreement issues the motivated decree and returns material of administration of the organization or body performing punishment. The resolution of the prosecutor on refusal in satisfaction of the petition for parole and replacement of unexpired part of punishment with softer type of punishment can be appealed by the convict, his defender in court in the place of serving sentence of the convict or the higher prosecutor.

If the administration of the organization or body performing punishment does not resolve issue of the petition or refusal in representation to parole or replacement of unexpired punishment with softer type of punishment in a month, then the convict and his defender have the right to appeal failure to act of administration directly in court in the place of serving sentence according to the procedure of Chapter 27 of the Code of civil procedure of the Republic of Kazakhstan (further - GPK).

Courts shall react to this violation of the law allowed by administration of the organization or body performing punishment by pronouncement of the private resolution.

According to article 13 of the Constitution of the Republic of Kazakhstan establishing the right of everyone to judicial protection of the rights and freedoms and articles 18 WICK, 20 WICK the resolution of administration of the organizations and bodies performing punishment on refusal in representation to parole of serving sentence or to replacement of unexpired part of punishment with softer type of punishment can be appealed by the convict and his defender in court in the place of serving sentence.

The administration of the organization or body performing punishment takes to court, the pronounced sentence, request and notifies the victim or his representative on the address of the victim or his representative by mail by the registered mail that the convict served the part of sentence of punishment established by the law and according to the law the petition for its parole from further serving sentence or replacement of unexpired part of punishment with softer type of punishment is taken to court.

4. Courts shall not accept to the production the petitions for parole or replacement of unexpired part of punishment with softer type of punishment which are not meeting the requirements of Item three articles 169 Codes of Criminal Procedure: not containing data characterizing the identity of the convict, his behavior, the relation to work and training for the entire period of serving sentence and testimonial that he does not need complete serving of the penalty imposed by court of term, and also data on departure of the part of term of punishment established by the law.

If the provided materials do not contain sufficient data for their consideration, and during judicial session it is impossible to fill them, the judge by preparation of material for hearing by the letter returns it to the prosecutor for the corresponding registration and if it was found in judicial session, then issues the decree with indication of the bases on which material returns.

Petitions for release of the convicts who did not serve the part of sentence of punishment required by the law return without consideration.

Petitions concerning convicts to whom parole does not extend are subject to leaving without satisfaction.

5. According to article 169 Item eleven WICK, in case of refusal vessels in parole, replacement of unexpired part of punishment with softer type of punishment repeated introduction of the petition on any of these bases can take place not earlier than after six months from the date of pronouncement of the resolution on refusal, and for persons leaving lifelong imprisonment not earlier than after three years.

6. Questions of parole from punishment or replacement of unexpired part of punishment with milder pinishment are permitted by the judge of the district and equated to it court in the place of serving sentence by the convict.

Participation in judicial session of representatives of the organizations and bodies which directed the petition and also the convict and the prosecutor surely.

The convict has the right to get acquainted with the materials brought into court, to participate in their consideration, to declare petitions and branches, to offer explanations, to produce the evidence.

According to article 455 Code of Criminal Procedure participation in judicial session of the defender is obligatory when the petition concerning minors, persons who are not knowing language in which legal proceedings on case, and also persons who owing to physical or mental defects cannot independently perform the rights are conducted is considered.

By consideration of question of parole the opinion of the victim or his representative is considered.

In case of the proper notice of the victim or his representative and their absence in judicial session and absence from their party of any written applications and petitions, and also in case of damnification to interests of the state, the court without fail hears the conclusion of the prosecutor concerning observance of the rights of the victim or the state. In that case absence of the victim or his representative does not interfere with material consideration.

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