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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE KYRGYZ REPUBLIC

of April 2, 2003 No. 5

About parole from punishment, replacement of unexpired part of punishment with softer type of punishment, change of type of correctional facility, release from punishment in connection with serious illness

Studying of court practice showed that courts generally consider cases on parole from serving sentence (Art. 69 of UK), change of type of correctional facility (the Art. 50 WICK), cases on release from punishment in connection with serious illness (Art. 71 of UK), replacement of unexpired part of punishment with softer type of punishment (Art. 70 of UK) are less often considered.

But in practice of application of parole by courts from punishment and replacement of unexpired part of punishment with milder pinishment, changes of type of correctional facility and release from punishment in connection with serious illness are available the shortcomings and violations of the law reducing educational impact of these measures.

So, contrary to the requirement of the law allowing application of parole from punishment change of type of correctional facility on softer mode only to those convicts who will be acknowledged as court that for the correction they do not need complete serving of the penalty imposed by court and there are positive data for transfer, some courts apply these measures and to persons who did not prove the correction. Consideration of materials about parole, transfer in colony settlement when such release is not allowed by the law (Art. 69 of the p. 7 UK) is allowed.

In some cases courts make decisions on parole from punishment, change of type of correctional facility without careful proper check of the bases containing in representations and data on the identity of convicts, and proceeding only from data on departure condemned the part of punishment established by the law and lack of penalties at them for violation of the mode or evasion from work.

Courts do not show due insistence to completeness of materials and quality of the brought representations. Requirements of the Code of Criminal Procedure of the Kyrgyz Republic about appointment to hearing of this category of cases are not fulfilled, decrees are not issued. Courts allow simplifications of process by consideration of this category of cases about what witness the consideration facts in one day of large number of cases. In protocols of judicial session it is incomplete the course of legal proceedings, these researches of materials, the conclusions of the special medical commission about medical examination of the convict, content of explanation of the convict, its personal record, conclusion of the prosecutor is reflected. There are cases of consideration of representations without reclamation of personal records of convicts or without acquaintance with them. Resolutions not always contain motives on the basis of which the court came to this or that decision.

Not isolated facts of parole of persons who did not follow way of correction are consequence of superficial approach of some courts to consideration of materials. Similar shortcomings are allowed also by hearing of cases about release from punishment in connection with serious illness. Along with the facts of the wrong application of parole in practice of courts cases of unreasonable refusal in parole and change of type of correctional facility on the bases which are not provided by the law meet.

For the purpose of elimination of noted shortcomings and the correct permission of the questions arising in court practice on parole from punishment and to change of type of correctional facility, punishment replacement with milder pinishment, release from punishment in connection with serious illness, the Plenum of the Supreme Court of the Kyrgyz Republic

decides:

1. Draw the attention of courts that exact and steady execution of requirements of the law and the correct application of institutes of parole from punishment, replacements of unexpired part of punishment with softer type of punishment, change of type of correctional facility, release from punishment in connection with serious illness is not only the act of realization of the principles of humanity, providing legitimate rights of convicts, but also has extremely important value in correction of convicts, preventions of recurrent crime and promotes punishment goal achievement.

2. According to Art. 365 of the Code of penal procedure of the Kyrgyz Republic (in the further Code of Criminal Procedure), questions of parole, of replacement of unexpired part of punishment to softer are considered on representation of the body knowing execution of the punishment or for representation of the body executing sentence and the commissions on cases of minors, and concerning persons serving sentence in disciplinary military unit - on representation of command of disciplinary military unit.

3. As Art. 50 of the Penitentiary code (further WICK) the Kyrgyz Republic and Art. 370 of the Code of Criminal Procedure of the Kyrgyz Republic in details does not adjust procedure for change of type of correctional facility, the administration of places of detention, the prosecutor and court in case of application of this type of mitigation of criminal penalty shall be guided by requirements of the Art. 145 WICK of the Kyrgyz Republic.

According to item 9 of the Art. 145 WICK of the Kyrgyz Republic 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 introduce in court the motivated resolution on provision or refusal in representation to parole of serving sentence or to replacement of punishment to softer.

If the administration will not resolve the matter in a month, that the convict, his defender, according to Chapter 27 of the Code of civil procedure of the Kyrgyz Republic (in further GPK) having the right to appeal failure to act of administration is direct in court in the place of serving sentence.

And courts in case of consideration of the applications shall react to this violation of the law allowed by administration of the organizations or bodies performing punishment.

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