Appeal complaint on the fact of robbery
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Judicial Board for Criminal Cases of the Almaty City Court
Lawyer ................ legal address: Almaty ............ Phone number 8 ……………
acting in the interests of the convicted person ............ 02.09.1982 G.R., convicted
Article 191, part 2, paragraphs 1, 2 of the Criminal Code of the Republic of Kazakhstan to 5 years of imprisonment
THE APPEAL
on the verdict of the district court no.2 Bostandyk district of Almaty city dated 07/25/20.. year
By the verdict of the district court No. 2 of the Bostandyk district of Almaty from 25.07.20... .......... He was found guilty of committing a crime under Part 2, paragraphs 1,2 of Article 191 of the Criminal Code of the Republic of Kazakhstan and sentenced to 5 years of imprisonment in an institution of the medium-security penal system. I do not agree with this court verdict against my client regarding the imposition of punishment for the crime committed, since it is incorrect due to excessive severity, as well as regarding the qualification of the crime committed. When imposing punishment, the court unreasonably and unlawfully recognized a previous criminal record as an aggravating circumstance. The list of circumstances aggravating criminal liability given in art.54 of the Criminal Code of the Republic of Kazakhstan is exhaustive, and in accordance with Part 3 of this article, when imposing punishment, the court cannot recognize aggravating circumstances not specified in the first part of this article. In this regard, my client's criminal record for a previously committed crime cannot be recognized as an aggravating circumstance, since a criminal record for a previously committed crime is not listed as an aggravating circumstance in Article 54 of the Criminal Code of the Republic of Kazakhstan.
One of the circumstances aggravating criminal liability is repetition. If the Bostandyk District Court No. 2 of Almaty, recognizing the defendant's previous criminal record as an aggravating circumstance in sentencing him, had in mind the recurrence of crimes, I believe that there is no recurrence of crimes in the case in question, since...... he was convicted of a previously committed crime by the verdict of the district court No. 2 of the Zhetysu district of Almaty dated 07/06/20.. year, and in accordance with Part 2 of art. 12 of the Criminal Code of the Republic of Kazakhstan, a crime is not recognized as having been committed repeatedly if a person has been convicted of a previously committed crime. In addition to the above violations, the actions of my client were incorrectly qualified by the court under art.191, part 2, paragraphs 1,2 of the Criminal Code of the Republic of Kazakhstan. The qualifying feature provided for in paragraph 2 of Part 1 of Article 191 of the Criminal Code of the Republic of Kazakhstan, namely the use of violence that is not dangerous to the life or health of the victim, or with the threat of such violence, was not proven either during the pre-trial investigation or during the judicial investigation. By virtue of art. 393 h. 3 of the Criminal Procedure Code of the Republic of Kazakhstan, a conviction cannot be based on assumptions and is decided only on condition that during the trial the defendant's guilt in committing a crime is confirmed by the totality of evidence examined by the court.
The victim ............ During the trial, she testified to the court that the defendant did not beat her, did not use violence against her, and did not threaten to use it. The initial testimony of the victim was given by her in a stressful state with inaccuracies, which she had repeatedly stated to the investigator earlier during the pre-trial investigation. However, for unknown reasons, this statement of the victim was not taken into account by the investigator. At the same time, according to the conclusion of the forensic medical examination № .......... on 04/20/20.. no traces of beatings were found on the victim's body.
Thus, the actions of the defendant are qualified incorrectly, they should be qualified under art.191 part 1 of the Criminal Code of the Republic of Kazakhstan. Also, when sentencing, the court did not take into account such mitigating circumstances as voluntary compensation for damage caused by a crime, positive characteristics from the place of work, from the place of residence, as well as a sincere confession provided for in art. 53 of the CPC RK. Thus, the district court No. 2 of the Bostandyk district of Almaty, when passing sentence, allowed the incorrect application of the criminal law. The court unreasonably applied art. 54 of the Criminal Code of the Republic of Kazakhstan, incorrectly qualified the committed .............. He committed a crime, applied the wrong part of the article of the Special Part of the Criminal Code of the Republic of Kazakhstan, which led to the imposition of unfair, excessively harsh punishment by the court. In accordance with paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 4, c (with amendments and additions dated 06/25/2010) "On certain issues of evidence assessment in criminal cases", a court verdict cannot be recognized as lawful if it is made only on the basis of the testimony of the defendant or victim, which have not been analyzed, They have not been compared for reliability and are not supported by other evidence: witness statements, protocols of procedural actions, expert opinions, physical evidence and other documents., except in cases of consideration of the case in an abbreviated manner provided for in Article 382 of the Criminal Procedure Code of the Republic of Kazakhstan).
In addition, according to paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated 04/20/2018 "On judicial verdict", a guilty verdict is issued if the court has indisputably established that a criminal offense has been committed, this criminal offense was committed by the defendant, he is guilty of its commission, his guilt is confirmed by evidence collected in compliance with the requirements of the law. At the same time, there should be no grounds for terminating the proceedings and no grounds for referring the case to the prosecutor provided for in article 323 of the CPC. A person's guilt in committing a criminal offense is recognized as proven only in cases where the court, guided by the presumption of innocence, examined all the evidence directly, interpreting all the irremediable doubts in favor of the defendant, and within the framework of due process of law gave answers to all the questions specified in article 390 of the CPC. Based on the above and in accordance with Articles 414, 423,431,433,437 of the Criminal Procedure Code of the Republic of Kazakhstan
ask:
Verdict of the district court No. 2 of the Bostandyk district of Almaty dated July 25, 2018 in respect of .............. according to art. 191, part 2, paragraphs 1, 2, to amend and reclassify actions from Part 2, paragraph 1,2, Article 191 of the Criminal Code of the Republic of Kazakhstan to Part 1, Article 191 of the Criminal Code of the Republic of Kazakhstan to impose punishment in the form of minimum restriction of freedom.
Lawyer ......... I have read and support the complaint of the defender. ........ "____" August 20..
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