Circumstances aggravating criminal liability and punishment

By the verdict of the baizak District Court of Zhambyl region dated May 24, 2018: K. previously sentenced to 3 years of imprisonment under paragraphs "a, g" of the second part of Article 178 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code) on November 22, 2010, released on parole on April 3, 2012 from serving a sentence for 1 year 4 months 30 days, – by Paragraph 2) of the third part of Article 192 of the Criminal Code of the Republic of Kazakhstan, sentenced to serve in the institution of maximum security of the executive system.  On the basis of the first part of Article 14 of the criminal code, recidivism of crimes in the actions of K. is recognized. K., S. and Sh. in common, the victims were charged 2,200,000 tenge in favor of B., 32,500 tenge in favor of T., 22,325 tenge of state income, 900,000 tenge of material damage in favor of the victim K., 9,000 tenge of state income. As found out in court, K., S. on December 10, 2017, at about 03:30 am, with their accomplices "Nurik" and "Nurlan", who were not identified by the investigation, went to the farm on the pasture "camel Baz", located near the village of Kayyndy, T. Ryskulovsky district, Zhambyl region, to create a situation that threatens the life and health of the victim, at night wearing masks on their faces and illegally breaking into the house where the victim lived, weighing 2 kg as a weapon. 905 GR. it was a brick-like, solid object, armed with the animal's Mane, a vital body part of the latter. - 81 sheep of B. and a mobile phone "Samsung" worth 10,000 tenge, belonging to the herder T., a SIM card of 500 tenge, black jeans worth 5,000 tenge, a beaver Berk worth 10,000 tenge, a green military jacket worth 7,000 tenge and illegal possession of trousers for a total amount of KZT 2,200,000, Caused material damage to T. in the amount of 32,500 tenge.

The court conducted a comprehensive 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 analyzed directly at the court session, which does not raise any doubts in terms of consistency, correctly came to the conclusion that K. is guilty of committing the above-mentioned criminal act. The guilt of K. in committing this criminal offense, along with his answers with a confession of guilt, is fully proven by the answers of other convicts in this case, the victim T., The Protocols of conducting an inspection of the scene, taking and examining things, and other case documents. According to the conclusion of the forensic medical examination, minor damage to the health of the victim T. was caused. In this case, the court gave a legally sound assessment of the criminal offense act of K. and correctly differentiated it by Paragraph 2) of Part 3 of Article 192 of the criminal code. In accordance with paragraph 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4" on some issues of imposition of criminal penalties", the limits of judicial proceedings are limited to the charges formulated at the time of drawing up the indictment. Circumstances mitigating and aggravating liability and punishment are included in the content of the charge. Therefore, if the court establishes in the sentence the presence of circumstances not specified in the indictment, aggravating liability, it aggravates the situation of the defendant in accordance with the requirements of Article 340 of the Criminal Procedure Code of the Republic of Kazakhstan and is a violation of the limits of judicial proceedings. Therefore, the recidivism of crimes recognized as aggravating the responsibility and punishment of K. specified in the sentence is subject to exclusion due to the fact that it is not specified in the indictment. In the case of committing a serious crime in which there is a mitigating circumstance and aggravating, which is not provided for as a sign of a crime committed in accordance with part two of Article 55 of the criminal code, no more than two-thirds of the maximum term or amount of the main type of punishment. Therefore, the imposed punishment is subject to reduction. In accordance with paragraph 1 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005 No. 1" on the consideration of a civil claim in criminal proceedings", courts must ensure the correct resolution of civil claims filed during the consideration of criminal cases in compliance with the requirements of material and procedural laws. However, the court committed violations when deciding on a civil claim in the case. During the pre-trial investigation, the victim recognized as a victim in the case is K. he filed a claim for the recovery of material damage in the amount of 2,300,000 tenge caused to him as a result of a criminal offense. In the case, it was established that the cattle belonging to the victim K. were stolen by convicted persons Sh., S. and ZH., who were found guilty by a court verdict under Paragraph 2) of part three of Article 192 of the criminal code.

During the pre-trial investigation, the involvement of K. in the incident of this crime was not established, the charges were not brought at all. Despite this, the court, taking into account the fact that 2 heads of cows worth 900,000 tenge and 250,000 tenge were returned to compensate for the material damage caused to the victim K., the rest of the material damage in his favor 900,000 tenge was illegally recovered from K. along with Zh., s. and Sh.  Therefore, the judicial board on criminal cases considers that 900,000 tenge of material damage collected in favor of the victim K. as a result of a criminal offense and 9,000 tenge of state duty collected for state income are jointly subject to recovery only from convicted persons Zh., s. and Sh.  The judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan changed the judicial acts of local courts in relation to the convicted K. and excluded from the verdict of the court of first instance the recidivism of crimes recognized as aggravating the liability and punishment of K. K.in accordance with paragraph 2) of the third part of Article 192 of the criminal code, paragraph 2) of the second part of Article 55 of the Criminal Code, a sentence of 8 years of imprisonment was imposed. In favor of the victim K. the part in which the convicted K. was jointly charged with material damage in the amount of 900,000 tenge and the state duty on state income in the amount of 9,000 tenge was canceled, and the rest of the judicial acts were left unchanged. The petition of the convicted K. was partially satisfied. 

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