Appeal and review of the court's decision on the appeal motion of the prosecutor. Analysis of the reasons for cancellations and changes of court rulings

On appeal in 2020, a total of 1,556 materials on parole, or 15.4% of all reviewed materials on parole, 2,589 materials on parole, or 34% of all reviewed materials, of which 286 were reviewed at the request of the prosecutor, and 541 materials on parole. 169 or 11% of the total number of decisions reviewed on appeal were canceled, 206 or 8% of the total number of decisions reviewed on appeal, 5 or 0.3% were changed, 7 or 0.3% were changed. The largest number of cancellations of parole/parole decisions were made by the courts of Shymkent city – 23/15, East Kazakhstan region - 22/26, Nur Sultan city – 20/17, Akmola region – 15/33, Zhambyl region – 16/11, Almaty region – 5/18. The grounds for the cancellation of the decisions of the courts of first instance were a significant violation of the norms of the criminal procedure law, incorrect definition of the range of circumstances, application of substantive law, inconsistency of the court's conclusions with the factual circumstances and materials of the personal file. An analysis of the reasons for the cancellation of rulings on appeal showed that the unjustified rulings of the courts of first instance were canceled, both on the satisfaction of applications for parole and DMS, and their refusal, with the adoption of opposing decisions by the appellate instance. The cancellations were made due to the superficial examination by the court of the submitted materials and documents, the failure to ensure the completeness and objectivity of the review, as a result, without proper research and evaluation, there was data on the damage paid or its absence at all, as well as information characterizing the personality of the convicted person, including the presence or absence of violations, serious violations, little study of the personality by the institution, etc. As a result, the court came to an erroneous conclusion regarding the correction of personality or vice versa. There have been cases of cancellation of decisions, in violation of the explanations of paragraph 10 of the regulatory resolution, only on the grounds of non-compensation for damage and without giving other grounds, as well as errors in the application of the provisions of paragraph 2 of part 1 of Article 72 of the Criminal Code, when a convicted person is subject to parole without any additional conditions.

The decisions of the courts of first instance, according to which there was a parole of persons who are not subject to release by virtue of the law, were canceled. Thus, by the verdict of the Court of Justice for the West Kazakhstan Region dated June 21, 2017, R. was sentenced to 5 years in prison under part 2 of Article 256, Article 434, part 3 of Article 58 of the Criminal Code. By a decision of the Ural City Court dated April 15, 2020, the convicted person's petition for parole was granted and R. was released on parole for 10 months and 4 days. By the decision of the judicial board for criminal cases of the regional court dated May 28, 2020, the judgment against R. it was cancelled with the adoption of a new resolution on the refusal to satisfy the petition of the convicted person, the private petition of the prosecutor was satisfied. The reason for the cancellation of the court order was the failure of the court of first instance to comply with the requirements of paragraph three of part 1 of Article 72 of the Criminal Code, which states (a special condition) that a person serving a prison sentence imposed for a terrorist or extremist crime that did not result in the death of people and did not involve the commission of a particularly serious crime, after actually serving the terms specified in paragraphs three, four and five of this article, may be released by a court on parole if it actively assists in preventing, disclosure or investigation of terrorist or extremist crimes, exposure of members of a terrorist or extremist group. As established by the documents of the material, convicted R. has no disciplinary penalties during his sentence, has 2 incentives and 2 positive behaviors, is serving his sentence in light conditions, has served more than 3/4 of the sentence, but has not provided any assistance in preventing, uncovering or investigating crimes of these categories. For similar reasons, the Aktau City Court's decision of August 21, 2019 on parole against T. was canceled. Another example: by court decision No. 2 of Ust-Kamenogorsk on December 23, 2019, the petition of I., convicted by the verdict of the East Kazakhstan region Court of July 28, 2014 under part 2 of Article 145, paragraph "b" of Part 3 Article 120, part 3 of Article 58 of the Criminal Code to 8 years and 6 months of imprisonment, granted parole for an unserved term of 2 years, 9 months, and 2 days. Established, And. He was convicted of a crime against the sexual integrity of minors, and was of legal age at the time of the crime. It follows from the description that he is on preventive registration in the category of "prone to commit sexual crimes against minors," he has weakened volitional control of emotional reactions, may exhibit ambivalent behavior, is secretive, taking into account the above, the administration of the institution where he is serving his sentence considers it inappropriate to release him on parole from punishment.. By the decision of the judicial board for criminal Cases of the regional court of January 16, 2020, this decision was canceled, since, according to part 8 of Article 72 of the Criminal Code, parole does not apply to a person convicted of a crime against the sexual integrity of minors.

The decisions of the courts of first instance were canceled due to the fact that the convicts did not compensate for the damage caused and did not take real measures to compensate them. Example: by a resolution of the Kapshagai City Court of the Almaty region dated September 28, 2020, a petition for the conditional long-term release of convict F. satisfied. F. convicted by the verdict of the SMUS G. Almaty, dated February 22, 2017, under part 3 of Article 215, part 2 of Article 262, part 3 of Article 58 of the Criminal Code, to 4 years in prison with life imprisonment for holding senior positions related to organizational and administrative functions in government agencies and commercial organizations, with confiscation of property, and with serving sentences in a correctional colony of general regime. On September 8, 2020, the served sentence was 3 years, 9 months, 17 days, and the unserved part of the sentence was 2 months, 12 days. When considering the materials by the appellate instance, the board, based on the totality of the established circumstances, taking into account the personality and behavior of the convicted person for the entire period of serving the sentence, concluded that there were insufficient arguments to recognize him as having embarked on the path of correction, since it did not find positive changes in the behavior of the convicted person. In addition, according to the court verdict, 198,044,449,636 tenge were jointly recovered from F. and 31 persons to the state income, while F. No repayment measures are being taken. Based on the above, the board overturned the decision of the first instance on the conditional early release of convicted F. and she issued a new decision on the refusal of parole in the case. Another example: by a decision of the Turksib District Court of Almaty dated August 10, 2020, the petition of the convicted K. for parole for 5 years, 2 months, and 2 days was granted. The basis of the decision indicated that K. He was convicted of crimes in the field of economic activity, there is no damage in the case, he managed to prove his correction. On September 29, 2020, the Judicial Board for Criminal Cases of the Almaty City Court, at the request of the prosecutor of the year, canceled this decision with the issuance of a new decision, which denied the petition of convicted K. in connection with a gross violation of the norms of substantive law, expressed in the indication in the resolution of information that does not correspond to the circumstances actually established in the case. From the materials of the convict's personal file, it follows that by the verdict of the Almaty City Court of 11 May 2017, K. He was sentenced under part 3 of Article 24, part 5 of Article 312 of the Criminal Code (as amended in 1997) to 11 years in prison and, in conjunction with the verdict of the specialized interdistrict Military Court for Criminal Cases in Almaty dated April 12, 2014, on the basis of part 6 of Article 58 of the Criminal Code, finally to 17 years in prison. By the verdict of April 12, 2014, 164,726,109 tenge were recovered from the convicted person jointly with 45 persons: in favor of LLP "N" 164,726,109 tenge, in favor of JSC "K" - 9,533,565 tenge, in favor of LLP "S" 173,528,896 tenge, court costs in the amount of 18,161,513 tenge. According to the verdict of May 11, 2017, court costs in the amount of 151,621 tenge were collected. The LA-155/13 institution received a writ of execution for the recovery of 173 528 896 tenge from the convicted person in favor of LLP "S". It follows from the financial statement that K. repayment was made on the claim of "S" LLP, however, only in the amount of 18,744 tenge.

Thus, the conclusions of the court of first instance that there is no damage in the case do not correspond to the actually established circumstances. Another example: B. was sentenced to 17 years and 6 months in prison under paragraph "a" of part 2 of Article 96, part 1 of Article 251, and part 4 of Article 58 of the Criminal Code by the verdict of the East Kazakhstan region Court of Justice dated March 28, 2011. The term of punishment prescribed by law, granting the right to parole, B. has served, has 7 incentives, the 3rd positive degree of behavior, and previously imposed penalties have been repaid. However, it follows from the case file that with B. in favor of the representatives of the victims Zh. 1,224,100 tenge were collected for compensation of material damage, 1,000,000 tenge for compensation of moral damage, 455,000 tenge for compensation of material damage, 1,000,000 tenge for compensation of moral damage, 425,000 tenge for compensation of moral damage - 1,000,000 tenge, total 5,104,100 tenge.The specified amounts have not been repaid to the convicts. Despite these circumstances, by a decision of the Shemonaikha District Court of the East Kazakhstan region dated January 16, 2020, the petition of convict B. was granted, and he was released on probation for an unserved term of 3 years and 22 days. By the decision of the Judicial Board for Criminal Cases of February 27, 2020, this decision was canceled at the private request of the prosecutor. Another example: by court order No. 2 of Taraz dated July 9, 2020, B.'s petition was granted, and the convict was released on probation for an unserved term of 4 years, 3 months, and 23 days. The court motivated its decision by the fact that the convicted person at the place of serving his sentence is characterized positively, has embarked on the path of correction, has 3 incentives, has no penalties, and has been assigned the 2nd positive degree of behavior. However, the court, when granting the petition, did not take into account that B. was sentenced to 9 years in prison as a member of an organized criminal group that caused damage to the state in the amount of 1,313,801,818 tenge, and this damage was not compensated. Therefore, the judicial board for criminal cases of the Zhambyl Regional Court of December 11, 2020, overturned the decision of the court of first instance, and issued a new decision on refusal.

There were also unjustified refusals to satisfy the petitions of convicts for parole. Example: by a decision of the Shet Court dated February 28, 2020, the application for the conditional early release of A., convicted under paragraph 2) of part 2 of Article 190 of the Criminal Code to 2 years of restriction of liberty with deprivation of the right to engage in activities in the field of public procurement for a period of 3 years, was denied. The court refused the application for parole, arguing that at the time of consideration of the application, the convicted person had not served 1/3 of the additional sentence, which does not meet the requirements of paragraph 1 of part 3 of Article 72 of the Criminal Code, since in the presence of additional punishment, the period of actual serving of the sentence is calculated from the date of serving the main and additional punishments. In this regard, the court concluded that it is impossible to consider the above concepts separately, therefore, the court does not have the right to partially resolve the issue of exemption from basic punishment. By a resolution of the judicial board for Criminal Cases of the Karaganda Regional Court dated April 15, 2020, the court's decision against A. was canceled, the latter was released on parole for 1 year, 1 month, and 11 days. Another example: by a decision of the Mendykarinsky District Court of Kostanay region dated March 21, 2020, the petition of convicted S. for parole was denied. convicted by the verdict of court No. 2Kostanay, dated April 17, 2019, under part 2 of Article 24, paragraph 3) of part 2 of Article 188, parts 2, 3 of Article 188, part 1 of Article 60 of the Criminal Code, to 2 years and 4 months of restriction of liberty with the establishment of probation control. As the basis for the refusal of the petition, the court indicated that S. had been convicted several times before. By the decision of the appellate instance, the decision of the court of first instance was annulled with the issuance of a new decision on the satisfaction of the convicted person's petition for his parole. At the same time, the court of appeal reasoned the decision as follows: the sentence provided for in paragraph 3 of part 3 of Article 72 of the Criminal Code was served by the convicted person, the court of first instance took into account grounds that did not meet the requirements of the law when resolving the petition. At the same time, the court of first instance, without a thorough study and proper assessment of the data characterizing the convicts for the entire term of serving their sentences, unreasonably decided to satisfy the convicts' petitions for parole and DMS, which were subsequently canceled. Thus, by the decision of the judicial board for Criminal Cases dated January 14, 2020, at the request of the prosecutor, the decree of the court No. 2 of Pavlodar dated November 26, 2019, which D., convicted on April 23, 2018 under paragraphs 1), 2) of part 2 of Article 191, paragraph 3) of part 2 of Article 188, part 3 of Article 58, was canceled. Sentenced to 3 years in prison, released on parole for an unserved term. A new decision has been made to refuse parole. At the same time, the board indicated that it follows from the submitted materials that D., although he has served the term of punishment prescribed by law, has been working in the leisure and self-education section since May 2, 2019, and received one encouragement. However, he did not show any more positive behavior, the degree of behavior has not been determined, and he is under the usual conditions of serving his sentence. According to the description, the management of the institution and the members of the SVO consider it inappropriate to release him. In addition, D. did not take any measures to compensate for the damage. I did not apply to the administration of the institution for employment. There is no information about further employment, about Z.'s consent. to stay with him.

In this regard, the conclusions of the court of first instance were reasonably recognized as not based on the submitted materials. Judicial practice of full or partial release from serving an additional type of punishment upon parole from the main punishment. On appeal, one decision was changed to satisfy the application for parole, regarding the unjustified non-application of the requirements of the law to additional punishment. Thus, by the decision of the judicial Board for Criminal Cases dated September 30, 2020, the decree of the court No. 2 of Pavlodar dated August 12, 2020 was amended to convict on February 19, 2020, under Article 254 of the Criminal Code, to 1 year and 6 months of restriction of liberty with deprivation of the right to hold managerial positions in commercial organizations, in the field of electric networks, for a period of 3 years., K., who was released for an unserved period of 9 months and 22 days. The application for release from an additional type of punishment was refused due to the fact that he served a short term of punishment for a crime that entailed grave consequences on the following grounds. The Judicial Board pointed out that it follows from the content of paragraph 4 of Article 72 of the Criminal Code that a person may be fully or partially released from serving an additional type of punishment. By the time he was released from the main punishment, he had not served an additional punishment in the form of deprivation of the right to hold managerial positions in commercial organizations in the field of electric networks. At the same time, he was positively characterized for the entire term of serving his sentence, including at his place of residence, he was not brought to administrative or other responsibility, and he compensated for the damage. The court's reference to the fact that K. He served his sentence for a short time, and the crime he committed caused serious consequences, which did not comply with paragraph 12 of the regulatory decree. In view of this circumstance, the court of appeal released K. completely from further serving additional punishment. There are facts of non-establishment of probation control over a conditionally released person, for which the materials were reviewed on appeal. For example: A. was sentenced by the verdict of the Arkalyk city Court dated February 16, 2011 under part 3 of Article 103 of the Criminal Code to 8 years of imprisonment in a high-security penal colony. By the decree of the court No. 2 of the city of Kostanay dated January 31, 2018, the petition of the convicted A. was satisfied, he was conditionally released from further serving his sentence by the verdict of the Arkalyk city Court dated February 16, 2011 for an unserved term of 7 months and 22 days. In the appeal motion, the prosecutor, without challenging the court's decision, asked the court to change the decision due to the incorrect application of the criminal law, to establish probation control for convicted A. with the imposition of duties provided for in part 8 of Article 169 of the Criminal Code for the remainder of the unserved sentence. By the resolution of the Judicial Board for Criminal Cases of the Kostanay Regional Court dated March 6, 2018, Court decision No. 2Kostanay was amended on January 31, 2018, for convict A. Probation control has been established with the assignment of duties provided for in part 8 of Article 69 of the Criminal Code, and the prosecutor's appeal has been granted. There is a cancellation of judicial acts due to newly discovered circumstances that have received a wide public response in the Republic. So, in 2020, there was a case of gross violation of the law by the courts of first and appellate instances, when the fact of compensation for the damage caused by the crime was not verified, which led to an unjustified decision to grant the petition for parole of the convicted U. On August 19, 2020, the judicial board for Criminal Cases of the Kostanay Regional Court granted the petition of the Acting Prosecutor of the Kostanay region for a review of judicial acts against convicted U. on parole due to newly discovered circumstances.

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