A person found guilty of committing a crime must be given a fair punishment that is necessary and sufficient to correct him, taking into account the nature and degree of public danger of the crime to his personality, mitigating and aggravating criminal liability and punishment circumstances.

By the verdict of the Shcherbaktinsky District Court of the Pavlodar region dated January 28, 2015, A. was sentenced under part 2 of Article 296 of the Criminal Code to 4 years in prison to serve his sentence in a penal colony, with the deprivation of the right to drive a vehicle for a period of 3 years. By the verdict of the court, A. was found guilty of violating traffic rules while driving a motor vehicle, which negligently caused the death of R. By a decision of the Appellate Judicial Board for Criminal Cases of the Pavlodar Regional Court dated March 5, 2015, the sentence was changed, the sentence imposed under part 2 of Article 296 of the Criminal Code was reduced to 2 years in prison and, on the basis of Article 63 of the Criminal Code, a suspended sentence with a probation period of 2 years was imposed. He has been released from custody and probation control has been established. The rest of the verdict remains unchanged. By the decision of the Cassation judicial Board of the Pavlodar Regional Court dated June 18, 2015, the decision of the appellate judicial board regarding convicted A. was left unchanged. The Supervisory Judicial Board for Criminal Cases of the Supreme Court overturned the decisions of the appellate and cassation judicial boards against A. The verdict of the court of first instance was changed and, using part 2 of Article 55 of the Criminal Code, reduced the sentence imposed on A. under part 2 of Article 296 of the Criminal Code, up to 2 (two) years of imprisonment with deprivation of the right to drive a vehicle for a period of 3 years, while serving a sentence in a penal colony on the following grounds. A.'s guilt in the crime imputed to him was established not only by his confessions, but also by the testimony of the victim R., the representative of the victim D., witnesses Sh., K., G. and others, protocols of the inspection of the scene of the incident with the attached diagram, the conclusion of forensic examinations, checked in court for their reliability, admissibility and sufficiency to find him guilty of the crime charged against him, which the court gave a proper legal assessment in the verdict.

A.'s actions are correctly qualified under part 2 of Article 296 of the Criminal Code. At the same time, the court of appeal, when considering the criminal case against A., committed gross violations of the norms of criminal procedure legislation. According to part 1 of Article 414 of the CPC, the right to appeal a verdict belongs to the convicted, acquitted, their defenders, including representatives and legal representatives who entered into proceedings after the verdict was announced, the victim, their representatives and legal representatives. The civil plaintiff, the civil defendant, their representatives and legal representatives have the right to appeal the verdict in the part relating to the civil claim. As can be seen, a criminal case has been initiated into the death of the victim R. as a result of a traffic accident. The relatives of the deceased R. were recognized as victims in the case. In addition, an official car belonging to the Russian State Institution "Department of Justice of the Pavlodar region" was damaged in a traffic accident.

The case file contains a letter to the pre-trial inspection authorities from the Russian State Institution "Department of Justice of Pavlodar region" stating that the interests of the Department during the investigation of a traffic accident will be represented by bailiff B. However, the pre-trial inspection authorities have not issued a resolution against the representative of the Russian State Institution "Department of Justice of Pavlodar Region" and have not determined his legal status. During the main trial, the court, without clarifying the procedural status of the Department, unreasonably recognized B. as the representative of the victim. At the same time, in the case of the Russian State Institution "Department of Justice of the Pavlodar region", before and after the verdict came into force against A., he did not file a claim for damages with the court. Therefore, the representative of the Russian State Institution "Department of Justice of Pavlodar region" did not have the right to appeal to the board of appeal against the verdict of the court of first instance. However, the appellate judicial board, without determining the legal status of the Russian State Institution "Department of Justice of Pavlodar region", accepted an appeal from the Department as a representative of the victim, where they asked not to imprison A., and illegally reviewed the criminal case against convicted A., changed the verdict of the court on this appeal. At the same time, the board meeting was held without the participation of actual victims. The appellate instance, applying article 63 of the Criminal Code, did not take into account that during the court session, the victim's representative and close relatives of the deceased asked the court for strict punishment of the perpetrator.  The violations of the procedural law committed by the appellate instance were not eliminated by the cassation board of the regional court, the decision was left unchanged. In addition, the court of first instance, by imposing a 4-year prison sentence on convicted A., violated the norms of the substantive law. Thus, by virtue of paragraph 1 of part 2 of Article 55 of the Criminal Code, if there is a mitigating circumstance that is not provided for as a sign of a committed crime and there are no aggravating circumstances, the punishment for the convicted person may not exceed half of the maximum term, the most severe punishment provided for in part 2 of Article 296 of the Criminal Code, that is, no more than 2 years and 6 months of imprisonment. In accordance with article 52 of the Criminal Code, a person found guilty of committing a crime must be given a fair punishment, necessary and sufficient to correct it, taking into account the nature and degree of public danger of the crime, the identity of the perpetrators, mitigating and aggravating criminal liability and punishment circumstances. In this regard, discussing the nature and degree of public danger of the crime committed by A., the admission of guilt, as well as taking into account the opinion of the victim R. regarding the imposition of a custodial sentence on a convicted person, the supervisory judicial board considered it possible to apply part 2 of Article 55 of the Criminal Code when imposing punishment. 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases