Appointment of a penitentiary institution assignment of the regime of a penitentiary institution of the Penal correction system to a person sentenced to imprisonment

By the verdict of the Abay District Court of Shymkent dated September 23, 2020: N. was previously convicted, deprived of the right to drive a vehicle for 10 years by the third part of Article 345-1 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), sentenced to 3 years of imprisonment, serving his sentence in a medium – safe institution of the Penal correction system, the term of serving the sentence is calculated from September 23, 2020.  From N.: - 2,550,500 tenge of material damage and 4,000,000 tenge of moral damage in favor of the victim R.; - state duty in favor of the state in the amount of 26,894 tenge, procedural costs in the amount of 7,841 tenge; – forced payment to the Victims ' Compensation Fund in the amount of 15 monthly calculation indices-41,670 tenge. The issue of physical evidence is resolved in accordance with the procedure established by Article 118 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code). By the verdict of the court, N. was found guilty of driving a vehicle under the influence of alcohol, violating the requirements of traffic rules and committing an accident that caused the death of a person by negligence. By the decision of the Judicial Board of the Shymkent City Court for criminal cases dated November 11, 2020, the court verdict was left unchanged. In protest, the Acting Prosecutor General of the Republic of Kazakhstan, in connection with the incorrect application of the criminal law in determining the institution of the penitentiary system in relation to the convicted N., changed the judicial acts, canceled the part of the appointment of serving sentences in medium-security institutions of the penitentiary system, and asked to appoint the lowest-security institutions of this system for serving sentences. The court conducted a thorough judicial investigation in compliance with the requirements of the law on the case, based on a set of convincing evidence collected by the pre-trial investigation body and directly examined and objectively evaluated at the main trial, which does not raise any doubts in terms of consistency, correctly concluded that N. is guilty of committing a criminal offense described in the sentence.  The guilt of N. in committing the above-mentioned criminal offense, along with his answers with a full confession of his guilt, is fully proven by the answer of the victim R., The drawing of the accident and its attached photographs, the protocol of the scene of the incident, the conclusions of forensic, forensic chemical, forensic Narcological and forensic transport trasological examinations, as well as other irrefutable evidence collected in the case.

Appointment of a penitentiary institution assignment of the regime of a penitentiary institution of the Penal correction system to a person sentenced to imprisonment

These evidence are presented in detail in the descriptive and motivational part of the sentence, combined with a complete, objective and objective study of all the circumstances in the case. When investigative actions are carried out in the case, the requirements of the CPC are observed, so the legality of this evidence does not raise any doubts. In accordance with the requirements of Article 125 of the criminal code, the court gave a reasonable assessment of each of the evidence in terms of their relevance, admissibility, reliability, and sufficiency of all the accumulated evidence to resolve the criminal case and correctly ranked the criminal offense of N. by the third part of Article 345-1 of the criminal code. The court justly assigned the punishment to N., guided by the requirements of Article 52 of the Criminal Code, taking into account the nature and degree of public danger of his unlawful act, information regarding his personality, criminal liability in the case and circumstances mitigating and aggravating punishment. The substantiation and differentiation of the guilt and actions of N. in the criminal offense committed, as well as the type, size of the criminal punishment assigned to him and the legality of the mandatory additional punishment, are not disputed in the protest. And the arguments of the court's protest against N. for the wrong assignment of the regime of a correctional institution of the penal system provided for by the criminal law for serving a sentence, and for the fact that the lower courts committed a violation of the criminal law, are justified. The criminal offense provided for in the third part of Article 345-1 of the criminal code, in which N. is found guilty by a court verdict, belongs to the category of criminal offenses committed by negligence.  In accordance with paragraph 1) of part five of Article 46 of the criminal code, persons convicted of crimes committed by negligence are assigned to serve imprisonment in the lowest security institutions of the Penal correction system. However, the court incorrectly determined the regime of the Correctional Institution of the Penal correction system when imposing a sentence of imprisonment on N.

Therefore, it is necessary to partially change the judicial acts in relation to N. and assign him a low-security institution of the Penal correction system in order to serve the sentence of imprisonment imposed by a court verdict. The basis for the Cassation review of judicial acts that have entered into legal force in accordance with paragraph 3) of part one of Article 485 of the criminal code is violations committed during the investigation or judicial review of the case, including improper determination of the regime of correctional institutions of the Penal correction system. The judicial collegium for criminal cases of the Supreme Court of the Republic of Kazakhstan partially changed the judicial acts of local courts in relation to the convicted N., that is, the parts of the judicial acts on the appointment of a medium-sized institution of security of the penal system for serving a sentence to N. were canceled. N. was assigned a low-security institution of the Penal correction system for serving a sentence of imprisonment for 3 years and 6 months, established by a court verdict under the third part of Article 345-1 of the criminal code. In accordance with paragraph 3) of part three of Article 62 of the criminal code, the time of detention from September 23, 2020 until the entry into force of the sentence shall be counted as two days for the term of imprisonment in a low-security institution-one day. The remaining parts of the judicial acts were left unchanged. The protest of the Acting Prosecutor General of the Republic of Kazakhstan was satisfied. 

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