of October 2, 2015 No. 6
About court practice of parole from serving sentence, replacement of unexpired part of punishment with softer type of punishment and reducing term of the imposed penalty
For the purpose of ensuring the correct and uniform application of regulations of Criminal, Criminal procedure and Criminal and executive codes of the Republic of Kazakhstan concerning parole from serving sentence, replacement of unexpired part of punishment with softer type of punishment and reducing term of the imposed penalty the plenary session of the Supreme Court of the Republic of Kazakhstan
1. Parole from serving sentence, replacement of unexpired part of punishment with softer type of punishment or reducing term of the imposed penalty are complex legal institutions. Issues of their application are resolved according to the procedure, established by Articles 72, of 73, 86 and 87 Criminal Codes of Kazakhstan (further - UK), Articles 476, of 477, 478 and 480 Codes of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure) and Articles 161, 162 and 169 Penitentiary codes of the Republic of Kazakhstan (further - WICK).
2. Draw the attention of courts that the paragraph one of part one of article 72 UK fixes possibility of application by court of parole of the convict, the left part of the penalty imposed according to the court verdict of the term and which is not needing its complete serving provided by the law.
Paragraphs two and third parts one of article 72 UK provide special conditions of application of parole.
If by court it is determined that along with the actual departure of the punishment prescribed by the law of term the convict had no malicious violations of the mode of serving sentence and completely indemnified the loss caused by crime, then according to the paragraph the second parts one of article 72 UK it is subject to parole without any additional terms.
In the absence of at least one of these two conditions the issue of parole of the convict is resolved by court according to the rules fixed in paragraph one of part one of article 72 UK.
In relation to articles 72 and 73 UK treat the damage caused by crime and which is subject to compensation as the damage which is directly caused by crime and other amounts collected from the convict on sentence or the judgment.
The extent of the damage caused by crime which is subject to compensation by the convict is established by both the court verdict, and the decision which took legal effect made according to the procedure of the civil legal proceedings following from criminal case.
2-1. The condemned person can be exempted conditional ahead of schedule based on Item 5) of part three of article 72 UK only in case of accomplishment of all conditions of the procedural agreement on cooperation by it and approach of the results specified in part two of article 621 Code of Criminal Procedure.
3. In case of the solution of question of acceptance to the production petitions of the convict for parole or replacement of unexpired part of punishment with softer type of punishment to court should be checked whether it meets requirements imposed to it by the law (parts one, third, ninth article 162 WICK and part two of article 480 Code of Criminal Procedure), and whether the data characterizing behavior of the convict, its relation to work and training for all the time of serving sentence whether there are copies of documents based on which the convict serves sentence, and also data on departure of the part of term of punishment established by the law contain in the provided materials.
If the provided materials do not contain sufficient data for consideration of the petition and in judicial session it is impossible to fill them, the judge during preparation for consideration of the petition the resolution returns these materials for the corresponding registration.
4. By consideration of question of parole from punishment or replacement of unexpired part of punishment with softer type of punishment participation in judicial session of the convict, the defender, the representative of the organization or body performing punishment, the prosecutor surely and also has the right to participate the victim or his representative. Absence of the victim, civil claimant and their representatives does not interfere with consideration of the petition.
The court shall inform them on date, time and the place of consideration of the petition properly.
The official of the organization or body performing punishment can be the representative in court in the presence of the power of attorney from the chief of this organization or body performing punishment. This official has no right to appeal the court order. The convict, the victim and their legal representatives, the defender have rights to appeal the resolution, and the prosecutor has rights of bringing of protest.
5. Parole from serving sentence, replacement of unexpired part of punishment with softer type of punishment can be applied to the convict after the actual departure of the terms specified, respectively, in parts three, the fourth and fifth Article 72, to Article part two 73, and to minor convicts in Article part one 86, of part one of article 87 UK.
6. In case of calculation of actually served sentence of punishment to convicts time of content of person under guards before adjudgement and its introduction joins in legal force. If the decision on offsetting of the specified terms in aggregate term of punishment does not contain in the court verdict or in the court order, the sentence pronounced according to the procedure of execution, then the court in case of application of parole decides about such offsetting in the resolution according to requirements of parts three, the fourth and fifth article 62 UK.
Parole is not applied to the convicts specified in part eight of article 72 UK.
7. When penalty to the convict was commuted by the act of amnesty or pardon or the resolution of superior court, actually served punishment sentence in case of application of parole from punishment or replacement of unexpired part of punishment with softer type of punishment to court should be estimated, proceeding from the term of the punishment established by the act of amnesty or pardon or the resolution of superior court.
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