Information regarding the regulatory resolution of the Constitutional Court
(№ 59 of 27 December 2024)
The Constitutional Court considered the appeals of citizens N.O. Tleubekov and N.S. Nurtashev about verification of compliance with the Constitution of the second part of Article 2 of the Penal Execution Code of the Republic of Kazakhstan (PEC), which determines the effect of the criminal-executive legislation of the Republic of Kazakhstan in time. According to this norm, the execution and serving of punishments and other measures of criminal-legal influence, application of means of correction to convicts, as well as assistance to convicts being released are carried out in accordance with the legislation of the Republic of Kazakhstan in force at the time of their execution.
The subjects of the appeal were convicted of serious corruption offences in 2019 and 2020. While serving their prison sentences in July 2024, they applied to the court for parole (parole). However, the courts dismissed the applications with reference to paragraph 3) of part eight of Article 72 of the Criminal Code (CC) and the contested part two of Article 2 of the PEC.
Earlier, the Law of the Republic of Kazakhstan dated 19 December 2020 ‘On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Strengthening the Protection of Citizens’ Rights in Criminal Proceedings and Combating Corruption’ amended the Criminal Code to prohibit the application of parole to persons convicted of a grave and especially grave corruption offence, with the exception of: cases of such offences committed by pregnant women and women with young children, men raising young children alone, women aged fifty-eight and over, men aged sixty-three and over, persons with a disability of the first or second group; convicted persons who have fulfilled all the conditions of a procedural agreement on co-operation (paragraph (3) of part eight of article 72 of the Criminal Code).
In the opinion of the subjects of the appeal, the contested norm of the Penal Execution Code contradicts the Constitution, as it worsens the situation of those convicted for offences of the relevant category committed before the prohibition of parole was introduced.
Following a review of the constitutionality of the above-mentioned PEC norm, the Constitutional Court concluded that the contested norm was constitutional and consistent with the above provision of the CC in force at the time of the application for parole. Previously, the Constitutional Court, in its regulatory resolution № 44 of 16 May 2024, stated that the issues of application or non-application of parole from serving a sentence are resolved in accordance with the criminal law in force at the time of application of parole, taking into account the retroactive rules established in the criminal law itself (on the basis of which the conviction and sentence was issued).
At the same time, in order to ensure uniformity of judicial practice, the Constitutional Court recommended that the Supreme Court provide additional clarifications on the application of parole to persons who have committed grave and especially grave corruption offences, taking into account the legal positions set out in the adopted regulatory resolution.