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ABSTRACT
In this article, conditional release of minors from serving the sentence, the essence of this legal institution, the history
of development, the experience of foreign countries, as well as the scientific approaches of scientists who have
conducted scientific research in this field are analyzed. In addition, on the basis of statistical data, today in the Republic
of Uzbekistan, the level of conditional release of minors from serving the sentence by the courts and examples of
court sentences are given.
KEYWORDS
Punishment, conditional release, the penal institution, minor, sentence.
INTRODUCTION
The sentence will not be applied in case of reaching the
target point of parole from the time elapsed. It is the
grounds that indicate that the danger of parole
assistance has been lost before the sentence is served
and that the court has recovered without serving the
full sentence. The essence of this legal institution is
that it is expressed in the conditional release of the
convict from serving a future sentence. Its conditional
character is that it is carried out on the basis of the
conditions specified in the law. Failure to comply with
the terms of parole before serving the sentence will
result in full or partial serving of the prescribed
sentence. The first condition for its application is the
existence of circumstances established by the court
regarding the recovery of the sentenced convict and
the fact that the convict has served a certain part of the
sentence. According to articles 73 and 89 of the
Criminal Code of the Republic of Uzbekistan,
conditional release may be applied to persons serving
certain types of punishment [1]. Conditional release
Research Article
CONDITIONAL RELEASE OF MINORS FROM SERVING THE SENTENCE
Submission Date:
February 04, 2024,
Accepted Date:
February 09, 2024,
Published Date:
February 14, 2024
Crossref doi:
https://doi.org/10.37547/ijlc/Volume04Issue02-04
Ziyoda Turabaeva
Lecturer of Criminal law, criminology and anticorruption Department, Tashkent State University of Law,
Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
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may also be released from an unexecuted additional
sentence. The provision of parole in the criminal law is
the practical application of an important humanitarian
principle of the criminal law. In practice, there are cases
of reoffending of a person who has been released from
punishment on this basis. This is primarily due to the
imperfection of the legal norm regulating parole.
Disagreements remain in the jurisprudence regarding
the understanding of what factors and how the parole
decision is affected. This situation not only leads to
judicial errors in the implementation of the specified
norm, but also has a negative impact on compliance
with the principles of legality, justice, humanity, has a
negative impact on the fate of prisoners, and also
hinders the process of their re-socialization.At the
same time, the convicts themselves should have a
clearer idea of the requirements imposed on them for
early parole by law. It plays an important role in
motivating individuals to engage in law-abiding
behavior. In addition, the ineffectiveness of parole is
related to the lack of appropriate control over the
actions of persons to whom the above-mentioned
institution of criminal law is applied by the state div,
which also negatively affects the safety of the entire
society.
In addition to the above, there are other problems that
need to be solved in the application of the institution
of parole. Currently, there is still no consensus on the
nature of parole, which makes it difficult to understand
its place and role in criminal law, and also causes
problems with the application of this type of release. In
addition, the issue of grounds for parole is
controversial. The criminal law does not disclose the
criteria by which a sentence can be issued that a person
does not have to complete the sentence imposed by
the court for recovery. In addition, the concept of
"honest attitude" in the Criminal Code itself is
evaluative, which allows the courts to make mistakes
in applying a conditional sentence. We should not
forget that another peculiarity of this institution is that
it is simultaneously regulated by three areas of law:
criminal, criminal executive and criminal procedural
law.
According to M.K. Rustamboev, conditional release
from serving the sentence is the release of the
defendant from continuing to serve the sentence on
the condition that the defendant fulfills the obligations
assigned to him/her by the court and maintains social
order and does not commit a new crime [2]. According
to Neilya. X. N, parole is an interdisciplinary institution
that regulates the early release of a wide range of
prisoners, and as an incentive measure applied to
them, it is manifested in the fact that, according to the
grounds provided by law, the court will release the
person from the sentence before serving the sentence
[3]. The Russian scientist D.A.Sherba said that the given
opportunity contributes to the early return of the
convict to society, ensures a gradual transition from
serving the sentence to a law-abiding lifestyle. At the
same time, it emphasizes that not only the negative
impact of the punishment on the prisoner, but also the
negative consequences that he experiences will be
mitigated [4]. Continuing the scientist's opinion,
according to the Russian criminal law, conditional
release from serving a sentence is applied to any
category of persons. However, it seems appropriate to
limit this possibility. This restriction should not be
applied to persons whose personality and criminal
behavior show that they are a danger to society and
require isolation for the entire term of the sentence.
In our opinion, parole is an institution that encourages
convicts to quickly transition to an honest way of life,
and is important for the formation of skills to comply
with the procedures and requirements of serving the
sentence, work and study honestly. According to the
content of part 1 of Article 73 of the Criminal Code,
imprisonment, sending to a disciplinary unit, restriction
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on service or correctional punishment can be applied
only after completing the part of this punishment
specified by the law. In Article 89, the unserved part of
the sentence against the person sentenced to
imprisonment, restriction of freedom or correctional
work may be replaced by a lighter punishment. Parole
does not apply to those serving other types of
punishment, and it is not appropriate to do so. Parole
is recognized as one of the effective institutions in
criminal law. The Criminal Codes of the Republic of
Uzbekistan adopted in 1926 and 1959 also provided for
this type of impunity, and this institution has been
continuously developed. The Criminal Code adopted in
1959 (Article 50) required that the prisoner prove his
recovery by exemplary behavior and honest work to be
eligible for parole. The current Criminal Code, adopted
on September 22, 1994, does not require the convict to
prove his recovery, but the law stipulates certain
conditions, the existence of which is the basis for
parole. In order to be paroled from serving the
sentence, it is enough to fulfill the requirements of the
established procedure for serving the types of
punishment provided for in the first part of Article 89
of the Criminal Code and to have an honest attitude to
work or study. For parole of persons who have not
reached the age of eighteen at the time of committing
a crime, the following are the grounds for parole,
applied only to those who are serving deprivation of
liberty, restriction of liberty and correctional work:
1) fulfilled the requirements of established procedures;
2) that he/she had an honest attitude to work or study
while serving these punishments;
3) having served the part of the punishment specified
by law.
Only the presence of all these conditions at the same
time is the basis for the conditional release of a person
from punishment. Absence of any of these conditions
excludes parole. The procedure for early conditional
release from punishment is defined in Article 536 of the
Criminal Code of the Republic of Uzbekistan and is
applied by the judge based on the submission of the
administration of the penal institution. It is used by the
judge on the basis of the joint submission of the
administration of the penal institution and the National
Commission on Children's Issues against persons who
have committed a crime under the age of eighteen, or
on the basis of the petition of the prisoner or his
defender. One of the grounds for early parole is the
completion of the statutory portion of the sentence
imposed by the court. According to the third part of
Article 89 of the Criminal Code, the convicted person
must have actually served the following part of the
sentence: a) at least a quarter of the term of the
sentence imposed by the court for a crime with a low
or low social risk; b) for a serious crime, as well as one
third of the term of punishment for a crime committed
intentionally; c) for a serious crime, as well as for a
crime committed with intent, if the person was
previously sentenced to imprisonment for a crime
committed with intent, shall be applied after actually
serving at least half of the term of the prescribed
sentence. In connection with the liberalization of
criminal punishments of the Republic of Uzbekistan,
amendments were made to Articles 73 and 89 of the
Criminal Code with the Law on Amendments and
Supplements to the Code of Criminal Procedure and
Code of Administrative Responsibility of the Republic
of Uzbekistan. Prior to these changes, the unserved
portion of a sentence eligible for parole was much
longer. For example, in the case of minors at the time
of committing a crime, it was required that they had
passed one-third, one-half, two-thirds. Amendments
made to Articles 73 and 89 of the Criminal Code made
it possible to release parole before the term of the
sentence for those who have passed the path of
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recovery. In Article 73 of the current Criminal Code, it is
sufficient to have the grounds provided for in the
second and third parts of this article, without the
requirement that the prisoner is strictly cured.
However, Criminal Code does not provide that these
persons may be imposed any obligations or any
obligations limiting their legal status during the
conditional release from punishment. Persons released
on parole before the term, if they do not commit a new
crime, are held responsible for any offense on other
general grounds (disciplinary, administrative). Article
93 of the Criminal Code of the Russian Federation
provides for the establishment of special conditions for
conditional release of minors from serving a sentence.
This is related to the individual approach to
determining the rules of criminal responsibility of
minors. It is recognized by some scientists that the
most optimal periods were determined based on
international standards. The Beijing Rules recommend
that "relevant authorities should apply parole as widely
as possible and as soon as possible". In the criminal
code of some countries of the Commonwealth of
Independent States, special bodies have been
established to monitor the behavior of persons who
have been paroled. During parole, the court imposes
certain obligations on the prisoner. If a person who has
been released on parole before the term does not fulfill
these obligations imposed by the court, or if an
administrative punishment has been applied to a
suspended sentence for violation of public order, the
court shall cancel the parole and send him to actually
serve the sentence with the submission of the div
entrusted with the supervision of the parolee. The
Criminal Code of Uzbekistan does not provide for such
provisions. It would be useful to include similar norms
in the Criminal Code of Uzbekistan. Because a person
kept in conditions of deprivation of liberty for a long
time may have lost his previous job, some even lost his
family, forgotten his profession or knowledge, serious
changes may have occurred in the society during his
sentence. In the conditions of the market economy
system, deepening of conflicts, high unemployment,
difficulties in finding a job for convicted persons, etc.,
can cause serious problems for persons who have been
paroled, and the person cannot solve these problems
on his own, and as a result, he may go back to the path
of crime [5]. If a minor in Article 89 of the current
Criminal Code is not required to prove his recovery in
order to be released on parole, then the process of
educating him will be continued during the period of
parole. But according to the law, who or which div is
responsible for educational work with them, who helps
them in solving problems in work, study, and marriage?
A person who has been released on parole before the
term of the sentence is fully released from serving the
rest of the sentence without any conditions. When
paroling a person early, the court must take into
account the living conditions of the person after the
release from the sentence, family situation, support
and attitude of close relatives, opportunities to get a
job or study. Article 563 of the Code of Criminal
Procedure of the Republic of Uzbekistan states that
"when sentencing a minor defendant, the court, in
addition to the issues specified in Article 457 of this
Code, shall discuss the necessity of appointing a public
educator to the minor, if the minor is given a
conditional sentence and is sentenced to a punishment
not related to deprivation of liberty. forced to do". In
most judgements, the chairman of the NCM
(Neighborhood Citizens Meeting) is appointed as a
community educator. We believe that having Juvenile
Probation fully regulate this process will have positive
results. The fact that the probation service helps to
regulate the child's future life, studies, work, and life
activities based on a clearly developed program has a
positive effect on the child's protection from external
influences and his avoidance of criminal behavior. The
draft law "On Probation Service" has been developed,
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but these issues are not included in the draft law.
Courts do not have the right to refuse to accept an
application for parole on grounds not provided by the
law, for example, the lightness of the sentence, the
fact that the part of the sentence served corresponds
to the requirement of the term established by the law,
but only a small part of it has been served, or the fact
that he spent a short time in a correctional
(educational) colony [6]. He is obliged to consider the
application for parole before the term of the sentence.
Only if there are insufficient grounds for parole, the
case can be returned until the grounds are sufficient.
Conditional release of minors before serving the
sentence has features related to partial limitation of
some general rules governing the order of release from
punishment.
Parole has the following features:
1) allows a person to adapt to social life;
2) ensures that he is controlled so that he does not
commit a crime again;
3) removes the negative influence in the prison.
Parole for minors, provided for in Article 89 of the
Criminal Code, is similar in many ways to parole for
adults (Article 73 of the Criminal Code). At the same
time, according to the principle of humanitarianism,
the law establishes preferential conditions for the early
release of persons who have committed crimes under
the age of 18. In other words, Article 89 of the Criminal
Code deals with early parole, which is applied to
persons who have committed a crime under the age of
eighteen. The provisions of this article should be
considered as a special norm in relation to Article 73 of
the Criminal Code, which regulates the general issues
of parole before serving the sentence. In accordance
with Article 89 of the Criminal Code, the following are
the grounds for applying conditional early release from
serving the sentence:
Parole for minors, provided for in Article 89 of the
Criminal Code, is similar in many ways to parole for
adults (Article 73 of the Criminal Code). At the same
time, according to the principle of humanitarianism,
the law establishes preferential conditions for the early
release of persons who have committed crimes under
the age of 18. In other words, Article 89 of the Criminal
Code deals with early parole, which is applied to
persons who have committed a crime under the age of
eighteen. The provisions of this article should be
considered as a special norm in relation to Article 73 of
the Criminal Code, which regulates the general issues
of parole before serving the sentence. In accordance
with Article 89 of the Criminal Code, the following are
the grounds for applying conditional early release from
serving the sentence:
Parole may be used if the court is satisfied that the
person has morally improved and that it is not
necessary to have a corrective effect by means of
coercive measures. The fact that such recovery is
taking place in a person may be evidenced by the fact
that he is fulfilling the requirements of the established
regime of deprivation of liberty or correctional work
and is conscientiously working or studying [7].
According to the statistics at this point will clarify the
situation. Statistics on the use of conditional release of
minors who committed crime show that in 2018, 98
people were used in 2019, 133 people in 2020, 236
people in 2021, and 378 people in 2022. This indicator is
the number of persons who committed crimes under
the age of 18 in 2018, 677 in 2019, 728 in 2020, 1688 in
2021, and 1947 in 2022. The share of parolees is 7.9%,
14.5% in 2019, 18.2% in 2020, 14% in 2021, 19.4% in 2022.
The court may release the minor from serving the
sentence on parole only if the grounds and conditions
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for the application of this type of punishment are
present together.
Early parole is applied to persons who have committed
a crime under the age of eighteen, based on a joint
submission of the administration of the penal
institution and the National Commission on Children's
Affairs, or based on the request of the convict or his
defense attorney. It should be noted as additional
information that when a motion for early parole is
denied, a new motion may be filed 6 months after the
first motion is filed. It is desirable to shorten this term
for minors, because the term on general grounds is for
adults, and for minors, doubling it will contribute to the
child's early release from punishment and return to
social life [8].
An example of the features of the conditional release
of minors from serving a sentence can be seen in the
example of the decision of the Zangiota District Court
on criminal cases. In the decision, the court discussed
the petition of the prisoner A. Inamova, listened to the
petition of the prisoner for early parole from the
unserved sentence, the opinions of the assistant
special prosecutor of Tashkent and the head of the
colony on the satisfaction of the petition, and the
prisoner A. Inamova fulfilled the requirements of the
established procedure and had an honest attitude to
work. and taking into account the fact that the
appropriate part of the sentence imposed by the court
has passed and that it was positively described by the
colony administration, it is necessary to satisfy the
request and to release the prisoner A. Inamova from
the sentence of deprivation of liberty that has not yet
been served. These cases indicate that the person has
recovered. In some rulings, the fact that a disciplinary
measure was not applied to the convict, and that an
incentive measure was applied, is also cited as a
reason. According to Article 88 of the Criminal Code of
Kyrgyzstan, conditional release is applied to a prisoner
if all the following conditions are met:
1) achieved positive results of recovery and
resocialization;
2) compensated at least half of the damage caused as
a result of the crime;
3) not subject to disciplinary punishment;
4) had a conscientious attitude to work and studies
while serving the sentence;
5) it is required to be treated for alcoholism, drug
addiction, psychotropic or toxic addiction.
In this Code, Article 90 is called the appointment of a
probationary period in the case of conditional release
before serving the sentence, according to which the
court assigns a probationary period to a person who
has been released on parole before serving the
sentence, within the unexpired part of the sentence,
but not more than three years. The court makes a
decision on the supervision of parolees during the
probationary period.
During the supervision of the prisoner, the court
imposes supervision requirements on him during the
probationary period [9]. If the convict does not comply
with the prescribed control requirements and
obligations imposed on him during the probationary
period, the court may make a decision on the
cancellation of parole and the execution of the rest of
the sentence imposed on him based on the submission
of the probation authority. It is worth noting that the
probation service is a responsible organization and
staff that helps prevent a person from committing a
new crime, helps him adapt to society, and obey the
requirements of supervision [10].
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In our opinion, there are cases of misunderstandings
related to the application of this institution, in
particular, there are cases of refusal of early release
from serving the sentence by the courts for reasons
not specified in the law (for example, the lightness of
the imposed sentence, the lack of time in the
institution for the execution of the sentence, etc.). But
in these situations, there should be no cases of denying
parole to convicts who have proven that they have
changed. In another interpretation, it is impossible to
refuse to solve the issue of unjustified release of a
convict from serving his sentence when there are
circumstances proving that he has recovered [11]. If a
person who has been released on parole before
serving the sentence commits a new crime on purpose
during the unserved part of the sentence, he will be
punished based on several sentences (Article 60 of the
Criminal Code) and on the basis of the general rules for
imposing punishment on minors defined in Article 86.
The current Code does not specify the conditions for
early release from serving the sentence, and the
procedure for controlling the behavior of a juvenile
convict in case of parole is not specified. In order to
eliminate this gap, it is proposed to establish a
probation service and improve this institution. For
example, on October 19, 2022, the Zangiota district
court on criminal cases explained that if a person who
was released on parole before the term of the
sentence to A. Inamova commits a new crime during
the unserved part of the sentence, it should be
explained that the punishment will be imposed on him
based on Article 60 of the Criminal Code, only this the
condition is set.
The Beijing Rules provide for a wide range of measures
to address the legal impact on minors. In particular,
paragraph 18.1 of the Beijing Rules states: “In order to
provide as much flexibility as possible and to avoid
placement in correctional institutions as much as
possible, the competent authority should be able to
use a wide range of measures of influence in the case.
Such measures, which can be applied in conjunction
with each other, are the following: a) a decision on
guardianship, leadership and control; b) probation; c)
decisions on working for the welfare of society; g)
decisions on participation in group psychotherapy and
other similar activities; d) decisions on giving a place of
residence for education and other educational
mea
sures” and others. In the Republic, there are no
special
programs
aimed
at
facilitating
the
reconciliation of juvenile offenders with victims, public
supervision of released juveniles, although their
necessity is overlooked in paragraph 11.4 of the Beijing
Rules: “Temporary supervision within the community
to help ensure the discretionary content of juvenile
proceedings” it is necessary to implement certain
programs that provide for making and managing,
restitution and compensation of the victim". State
authorities often consider crime prevention to be the
sole responsibility of law enforcement agencies and
therefore do not pay enough attention to this work.
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Criminal Code of the republic of Uzbekistan.
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of the National Guard of the Republic of
Uzbekistan, 2018. -P. 225.
3.
Khibina Neylya Nurmakhanovna “Conditional
release of minors from serving the sentence”
12.00.08 - criminal law and criminology
4.
D. A. Sherba. Conditional exemption from gratuity:
theory and practice. Specialization 12 00 08 -
criminal law and criminology, criminal and
executive law.
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