Application of the retroactive effect of the law the case is subject to termination, regardless of the stage of consideration, if the new law eliminates the criminality and punishment of the act
By the verdict of the District Court No. 2 of Saryarka District of Astana dated September 4, 2017: X. not previously convicted, found guilty by Article 393 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), with expulsion outside the Republic of Kazakhstan for a period of 5 years, a fine in the amount of 25 monthly calculation indices – 56 725 tenge was imposed. By the verdict of the court X. By the resolution of the Specialized Interdistrict Administrative Court of Astana dated October 7, 2015, he was found guilty of not executing a judicial act, that is, not leaving the Republic of Kazakhstan, although he was expelled outside the Republic of Kazakhstan. The verdict was not reviewed on appeal. In his submission, the chairman of the Supreme Court asked for a review of the court's verdict, indicating that he was subject to exemption from criminal liability, since the period of bringing H. to criminal responsibility has expired when sentencing, without questioning the evidence of H.'s guilt and the qualification of his actions. In accordance with paragraph 1) of the first part of Article 71 of the Criminal Code, a person is released from criminal liability if one year has passed since the day of the commission of a criminal offense after the commission of a criminal offense. In addition, in accordance with paragraph 4) of the first part of Article 35 of the Criminal Procedure Code (hereinafter referred to as the CPC), a criminal case is terminated upon expiration of the limitation period for bringing to criminal responsibility.
Application of the retroactive effect of the law the case is subject to termination, regardless of the stage of consideration, if the new law eliminates the criminality and punishment of the act
The judicial board considers the arguments of the chairman of the Supreme Court that when passing the sentence given in its submission, the term of bringing H. to criminal responsibility has expired, he is subject to exemption from criminal liability in connection with the expiration of the statute of limitations from the charge of Article 393 of the criminal code as valid. However, Article 393 of the criminal code is excluded by the above law. In accordance with Article 6 of the criminal code, the retroactive effect of the law, which eliminates the criminality or punishability of an act, applies to persons who have committed the relevant act before the law is put into effect. In accordance with paragraph 6 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 15" on judicial practice on the application of Article 6 of the Criminal Code of the Republic of Kazakhstan", courts of Cassation instance may bring previous sentences in relation to persons subject to the requirements of Article 6 of the Criminal Code (Article 476
In addition, in accordance with the requirements of the said normative resolution, the courts of Cassation instance directly apply the law, which has retroactive effect on criminal cases in their proceedings. At the same time, if the new criminal law eliminates criminality and punishment of actions, then in accordance with the requirements of paragraph 6 of the first part of Article 35 of the CPC, the proceedings on these grounds must be terminated, regardless of the stage of consideration of the case. The judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan canceled the verdict of the court of first instance against the convicted X. And terminated the criminal case against the convicted X. under Article 393 of the criminal code in accordance with paragraph 6) of the first part of Article 35 of the criminal code.
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