Appointment of punishment, circumstances aggravating criminal liability and punishment
By the verdict of the Specialized Interdistrict court for juvenile affairs of Mangistau region dated November 4, 2016, E. not previously convicted, Part 2 of Article 135 of the Criminal Code 1), 2), 8), 12) he is sentenced to 8 years of imprisonment, part 24 of Article 3, Part 2 of Article 135 of 1), 2), 12) with confiscation of property and 7 years of imprisonment, on the basis of part 58 of Article 3 of the criminal code with the final confiscation of property and imprisonment for 8 years, serving a sentence in the general regime of a correctional colony. Convicted persons E., K., P., S. jointly collected procedural costs in the amount of 350,686 tenge in favor of the state. A petition for the revision of judicial acts in Cassation procedure in relation to K., S., P. convicted by this sentence was not submitted. By the court verdict E. by prior collusion of a group of persons, repeatedly using his official position, he is found guilty of the purchase and sale or other transactions related to him of a knowingly minor known to be in an insolvent state, and by prior collusion of a group of persons, repeatedly, of attempting to commit the purchase and sale or other transactions related to him of a minor known to be in an insolvent state to the guilty person. By the decision of the Judicial Board of the Mangistau regional court for criminal cases dated December 22, 2016, the verdict was left unchanged. The guilt of E. in committing these criminal offenses is determined by his own, convicted persons K., S., P. with the answers given during the pre-trial investigation, the representative of the victims I., witnesses E., G., R., B., M., Ch.,.It is fully substantiated by the answers of zh., Sh., d., protocols of other investigative actions carried out in the case and other data. The motive of E. for the differentiation of his actions by Part 2 of Article 137 of the criminal code on the episode in relation to U. in the petition is unfounded.
Appointment of punishment, circumstances aggravating criminal liability and punishment
Under the mentioned article of the criminal code, adoptive parents of a child, persons who transferred him to guardianship (guardianship), foster care are indicated as subjects of a crime, and E. is not included in the list of these subjects. Actions in the form of transferring a child to a foster caregiver using an official position, without judicial transfer of a child to a foster caregiver, without signing a contract with him, regardless of the presence of the child's parents, and actions related to the transfer of a minor child under guardianship (guardianship) between the ages of 14 and 18 are subject to illegal actions specified in the disposition of Part 2 of Article 137 of the criminal code. In this criminal case, E., along with his accomplices, were looking for buyers of the child. Therefore, the criminal actions of E. Part 2 of Article 135 of the Criminal Code 1), 2), 8), 12) it is correctly differentiated by paragraphs, Part 3 of Article 24, Part 2 of Article 135, paragraphs 1), 2), 12). However, the court incorrectly applied the requirements of the criminal law in the process of imposing a sentence on E. When imposing a punishment in accordance with Part 3 of Article 52 of the criminal code, along with data related to the personality and behavior of a person, liability and circumstances mitigating and aggravating punishment must be taken into account. The court of first instance, when imposing a sentence on E., took into account his criminal liability and the state of family and health as mitigating circumstances of his punishment, the fact that he had not previously been brought to criminal responsibility. He recognized that E. played a particularly active role in committing a criminal offense as circumstances aggravating criminal liability and punishment, and caused serious consequences by committing criminal offenses. However, the court, although referring to the fact that E. played a particularly active role, did not specify what the convicted person was reflected in when committing a criminal offense in the descriptive and motivational part of the sentence. Also, the court indicated that E. caused serious consequences by committing criminal offenses, and did not justify what exactly consequences occurred as a result of the actions of the convicted person in the descriptive and motivational part of the sentence. In the main trial and from the materials of the case, it is established that no serious consequences were caused by the actions of the convicted person. Therefore, the circumstances aggravating the criminal liability and punishment of E. are subject to exclusion. In the presence of mitigating circumstances and in the absence of aggravating circumstances that are not provided for as a sign of a crime committed in accordance with paragraph 2) of Part 2 of Article 55 of the criminal code, the term or amount of punishment may not exceed two-thirds of the maximum term or amount of a more severe type of punishment provided for in the relevant article of the special part of the criminal code.
The criminal offense committed by E. belongs to the category of serious crimes. The sanction of Part 2 of Article 135 of the Criminal Code provides for a sentence of imprisonment from seven to ten years. In this regard, taking into account the requirements of Paragraph 2) of Part 2 of Article 55 of the criminal code, the term of imprisonment imposed on E. by Part 2 of Article 135 of the criminal code should not exceed 6 years and 8 months. In accordance with Part 3 of Article 56 of the criminal code, the term or amount of punishment for attempted crime may not exceed three quarters of the maximum term or amount of the most severe type of punishment provided for by the relevant article of the special part of the criminal code. For this reason, the penalty imposed on E. by Part 3 of Article 24, Part 2 of Article 135 of the Criminal Code must be established with the application of the requirements of Part 3 of Article 56 of the criminal code, Part 2 of Article 55 of the criminal code. That is, the term of imprisonment imposed under this article should not exceed 5 years. In accordance with paragraph 20 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "on some issues of imposing criminal penalties", the property subject to confiscation must be clearly specified in the resolution part of the sentence and it is indicated that confiscation can be applied only to property that is in the property of a convicted person and (or) third parties, illegally found or sold for funds illegally found. In this criminal case, there is no data on the existence of property in the personal property of E., which was sold for illegally acquired funds, and the case documents also record the decision of the bailiff to terminate the enforcement proceedings against him due to the absence of any property in the property of E. Therefore, an additional penalty in the form of confiscation of property assigned to E. is subject to exclusion. The judicial board, guided by the above requirements of the law, took into account the commendation certificates received by E. from the place of work, positive characteristics received from the place of serving a sentence, employees with whom he worked, neighbors, his increased age (age 57), health, and concluded that the term of punishment assigned to the convicted E. is subject to reduction. Based on the above, the Judicial Board of the Supreme Court of the Republic of Kazakhstan on criminal cases has changed the judicial acts of local courts in relation to the convicted E. In other words, the circumstances aggravating the criminal liability and punishment for E.: severe damage and a particularly active role were excluded, and the term of imprisonment imposed by Part 2 of Article 135 of the criminal code on the basis of Part 2 of Article 55 of the criminal code was reduced to 4 years and 6 months. And the term of imprisonment imposed by Part 3 of Article 24 of the criminal code, Part 2 of Article 135 of the criminal code was reduced to 4 years on the basis of articles 56, 55 of the criminal code, and on the basis of Part 3 of Article 58 of the criminal code, E. was finally sentenced to 4 years and 6 months of imprisonment. The part of the confiscation of additional punitive property of judicial acts was canceled, and the remaining parts were left unchanged. The petition of E. was partially 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
