Constitutional Court: Serving the Required Portion of a Sentence Is Not an Automatic Ground for Parole

The Constitutional Court, upon an application filed by a citizen, reviewed the constitutionality of the first paragraph of paragraph 9 of the Regulatory Resolution of the Supreme Court No. 6 of 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 Punishment, and Reduction of the Imposed Sentence” for compliance with Article 39(1) of the Constitution.

The Regulatory Resolution of the Supreme Court provides that the fact that a convicted person has actually served the required portion of a sentence does not, in itself, constitute an unconditional ground for granting conditional early release (parole) or for replacing the unserved portion of the sentence with a more lenient form of punishment.

Background of the Case

The applicant argued that the courts’ refusal to grant his applications for conditional early release and replacement of the unserved portion of his sentence allowed for an overly broad and ambiguous interpretation of the law, thereby conferring excessively wide discretionary powers on judges when deciding such matters.

Position of the Constitutional Court

Following its constitutional review, the Constitutional Court concluded that the contested regulatory clarification issued by the Supreme Court had been adopted within the scope of its constitutional authority, complies with the Constitution, and is intended to ensure the uniform application of judicial practice.

Findings of the Constitutional Court

The Constitutional Court noted that a number of issues require legislative regulation, including the legal assessment of an offender’s rehabilitation, consideration of the victim’s opinion in decisions concerning conditional early release and replacement of the unserved portion of a sentence, and the determination of the amount of damage caused.

The Court further observed that the absence of clearly defined statutory criteria in the criminal and penal enforcement legislation for determining whether a convicted person has been rehabilitated creates a risk of a predominantly formal approach to assessing the individual's conduct. As a result, this may lead to an excessively broad exercise of judicial discretion when considering applications for conditional early release or replacement of the unserved portion of a sentence with a more lenient punishment.

In this regard, the Government has been recommended to consider improving the criminal legislation, while the Supreme Court has been advised to provide additional regulatory clarifications on the application of the relevant legal provisions.

The full text of the Constitutional Court’s Regulatory Resolution is available at: https://www.gov.kz/memleket/entities/ksrk/documents/details/1023861?lang=ru