Cassation appeal to the Supreme Court on the theft
Attention! The Law and Law Law Company draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you in drafting any legal document that suits your situation. For more information, please contact lawyer Kenesbek Islam by phone.; +7 (708) 971-78-58; +7 (727) 971-78-58.
Judicial Board for Criminal Cases of the Supreme Court
Courts of the Republic of Kazakhstan Lawyer ............. legal address: .............
Tel. 8 ........... acting in the interests of the convicted person ........... 02.09.19... G.R.,
convicted under Part 2, paragraph 3, Article 188 of the Criminal Code of the Republic of Kazakhstan to 1 year and 6 months of imprisonment
THE PETITION
on the revision of the judgment of the district court that entered into force No.2 of the Bostandyk district of Almaty dated 06/25/20.. year, resolution of the Judicial Board for Criminal Cases of the Almaty City Court dated 08/01/20.. year
By the verdict of the district court No. 2 of the Bostandyk district of Almaty ............ He was found guilty of committing a crime under Article 188, part 2, paragraph "3" of the Criminal Code of the Republic of Kazakhstan, and was sentenced to 1 (year) 6 (six) months of imprisonment with confiscation of property and serving his sentence in a correctional colony. minimum security. By the decision of the judicial Board for Criminal Cases of the Almaty City Court dated 08/01/20..., the verdict was left unchanged, the appeal was dismissed. Without disputing the qualification of my client's actions, I consider the court's verdict regarding the imposition of punishment for the crime committed to be excessively harsh and unfair, I consider it illegal and unfounded, subject to change on the following grounds.
Cassation appeal to the Supreme Court on the theft
The punishment for the crime for which my client was found guilty by the verdict of the district court No. 2 of the Bostandyk district of Almaty, i.e. for the crime provided for in art. 188, part 2, paragraph "3" of the Criminal Code of the Republic of Kazakhstan provides for restriction of liberty for up to five years or imprisonment for the same period with or without confiscation of property. The crime committed by my client on the basis of art. 11 of the Criminal Code of the Republic of Kazakhstan belongs to the category of moderate severity, at the place of residence and at the place of work my client is characterized positively. The court did not take into account the fact that this crime belongs to the crimes of moderate gravity, does not belong to the category of serious crime. Despite the above, the District court No. 2 of the Bostandyk district of Almaty imposed an excessively harsh punishment and the court of appeal upheld the decision. I agree. 1 of the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated April 30, 1999 "On the observance by courts of legality in the imposition of criminal punishment", which states that when imposing criminal punishment, courts should strictly observe the general principles of sentencing specified in art. 52 of the Criminal Code of the Republic of Kazakhstan, that is, take into account the nature and degree of public danger of the crime, the identity of the perpetrator, This includes his behavior before and after the commission of the crime, circumstances mitigating and aggravating responsibility and punishment, as well as the impact of the imposed punishment on the correction of the convicted person. When determining the type and amount of my client's punishment, the courts of first instance and the court of appeal did not take into account circumstances mitigating criminal liability and punishment: confession of guilt, remorse for what he had done, his marital status, my client was brought up in an orphanage, his difficult financial situation, lack of permanent work and a source of livelihood, pushed him to commit a crime. Thus, in accordance with art. 52 Part 2 of the Criminal Code of the Republic of Kazakhstan, a person who has committed a crime must be given a punishment necessary and sufficient to correct it and prevent new crimes. A more severe type of punishment from among those provided for a committed crime is imposed only if a less severe type fails to achieve the objectives of the punishment.
Cassation appeal to the Supreme Court on the theft
Taking into account the totality of the above mitigating circumstances and punishment, I believe that a non-custodial sentence will be sufficient to correct my client, given that my client has not been tried before and is being prosecuted for the first time. Thus, it is unclear what negative characterizing materials of the case the court refers to, concluding that it is impossible to correct it without isolation from society and imposing a measure of punishment in the form of imprisonment. There are no circumstances aggravating criminal liability and punishment for the crime for which he was found guilty by this court verdict. My client, the victim's civil claim ........ He admitted and explained that he was ready to compensate for the damage after his release and employment. He also asked the court not to punish him severely. However, the court finally appoints for 1 (year) 6 (six) months of imprisonment with confiscation of property and serving the sentence in a correctional colony of general regime. Based on the above, I believe that, given the totality of all the above mitigating circumstances and the absence of aggravating circumstances, my client was given an excessively severe punishment in the form of imprisonment under art. 188 part 2 of paragraph "3" of the Criminal Code of the Republic of Kazakhstan. In accordance with part 8 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan No. 13 dated December 19, 2003 "On the practice of considering criminal cases on appeal", "taking into account the requirements of Part 1 of Article 424 of the CPC, the court of appeal, when considering a case on a complaint or protest, is obliged, within its competence, to check how comprehensively, fully and objectively the circumstances of the case have been investigated. in relation to each convicted person, the correctness of the qualification of the crime, the conformity of the punishment to the deed. In accordance with part 2 of Article 426 of the CPC, the appellate instance, upon detection of violations of the rights and legitimate interests of convicted persons, regardless of the arguments of the complaint and protest, has the right to make appropriate changes to the verdict (resolution) aimed at improving the situation or to recognize the verdict (resolution) as illegal and cancel. In cases where there are grounds for revoking or changing a sentence (resolution) against persons about whom a complaint or protest has not been filed, the court of second instance is obliged in the introductory part of the resolution to provide information about the identity of this convicted person, indicate under what law, to what measure of punishment he was sentenced, with reference that the case against him It is considered in accordance with part 2 of Article 426 of the CPC. The Judicial Board for Criminal Cases of the Almaty City Court did not pay due attention to this case, contrary to the requirements of the law obliging the higher authority to eliminate the violations and make up for the shortcomings, ignored the arguments of the defense set out in the appeal and duplicated the conclusions of the court of first instance, issued an unlawful ruling, finding no grounds to change the illegal and unjustified verdict of the district court..
Cassation appeal to the Supreme Court on the theft
Thus, the court of first instance and the court of appeal, when sentencing my client, allowed the incorrect application of the criminal law. 53 of the Criminal Code of the Republic of Kazakhstan unreasonably failed to apply the provisions of Article 53 of the Criminal Code of the Republic of Kazakhstan as circumstances mitigating criminal liability and punishment.: the commission of a criminal offense for the first time or a crime of minor or moderate severity for the first time due to an accidental combination of circumstances, which led to the imposition of an unfair, excessively harsh punishment by the court. According to ch. 24 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On the procedure for criminal proceedings in the Cassation instance" No. 5 dated June 29, 2017, "the grounds for revoking or changing the verdict are the circumstances specified in Article 433 of the CPC. The court of cassation instance, without sending the case for a new judicial review, has the right to change the verdict based on the arguments set out in the prosecutor's protest or the victim's petition."
Based on the above, guided by Articles 484, paragraph 3 of Part 1 of Articles 485, 486, 488, paragraph 1 of Part 1 of Article 491, paragraph 2 of Part 7 of page 494 of the Criminal Procedure Code of the Republic of Kazakhstan,
ask:
To conduct a preliminary examination of the petition with the request for materials of the criminal case.
2. To submit the petition with the case for consideration at the court session of the cassation instance
3. The decision of the Judicial Board on Criminal Cases of the Almaty City Court dated 08/01/20.. year - to cancel,
Verdict of the district court No. 2 of the Bostandyk district dated 07/25/20.. of the year in respect of ..............according to art.188, part 2, paragraph 3, to amend, to impose punishment in the form of a minimum term of restriction of liberty.;
4. Consider the petition with the participation of a defense lawyer .....; Lawyer .... I have read and support the defense attorney's petition ... "__" August 20...
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
