Circumstances aggravating criminal liability and punishment
By the verdict of the Court No. 2 of Kyzylorda city of Kyzylorda region dated July 22, 2019: E. was found guilty by the second part of Article 394 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code), he was sentenced to 2 years and 6 months, the second part of Article 385 of the Criminal Code – 1 year of restriction of freedom, the third part of Article 385 of the criminal code-160 hours of public work. On the basis of the second part of Article 58 of the criminal code, he is sentenced to a final restriction of freedom of 2 years and 6 months by absorbing a less severe punishment into a more severe one. By the court verdict T. he was found guilty of organizing illegal migration through preliminary collusion with a group of people, issuing forged documents to foreigners, providing them with other services for illegal entry and relocation to the territory of the Republic of Kazakhstan, and using a deliberately forged document, repeatedly passing a forged official document that gives rights or exempts them from duties, in advance collusion with a group of people. By the decision of the Judicial Board of the Kyzylorda regional court for criminal cases dated September 3, 2019, the verdict was left unchanged. Convicted T. the petition states that he does not agree with the sentencing part of the judicial acts, that Article 65 of the Criminal Code did not apply to him during the sentencing, that he is the sole breadwinner of his family, that he has minor children, elderly parents and entrepreneurial work that requires traveling on business trips, as well as that he was found guilty by the court's verdict of June 17, 2019 with the second part of Article 394, Article 28, the second and third parts of Article 385 of the Criminal Code and sentenced to 2 years of restriction of freedom, however, the decision of the Appellate Judicial Board dated September 11, 2019 changed the sentence of the court No. 2 of Kyzylorda on July 22, 2019, indicating that the sentence of the sentence was imposed and a fine was imposed on it, therefore, the sentence of the sentence is subject to change, that is, the penalty should be imposed on the sentence, and changed the sentence of the Court No. 2 of Kyzylorda on July 22, 2019, in accordance with the verdict of this court dated June 17, 2019 and the resolution of the judicial board for criminal cases of the Kyzylorda Regional Court dated September 11, 2019, the final sentence of restriction of freedom for a period of 2 years was changed and the penalty was imposed.
Circumstances aggravating criminal liability and punishment
The conclusion of the court on the commission of criminal offenses by the convicted T. in the circumstances set out in the descriptive and motivational part of the sentence is based on the evidence thoroughly, fully and objectively studied at the court session and corresponds to the actual circumstances of the case. The guilt of T. is fully substantiated by the answer to the confession of the crimes committed, the answers of the convicts K., K., witnesses A., S., protocols of investigative actions, conclusions of forensic examinations and other case materials. The court gave a legally justified assessment of the criminal acts of T. and correctly ranked them with the second part of Article 394 of the criminal code, the second part of Article 385 of the criminal code, and the third part of Article 385 of the criminal code. However, when imposing a sentence on the convicted T., the court unreasonably recognized the commission of a criminal offense by a group of persons by preliminary conspiracy as a circumstance aggravating his criminal liability and punishment. Because in accordance with the second part of Article 54 of the Criminal Code, if the circumstance specified in the first part of this article is provided for in the relevant article of the special part of this code as a sign of a criminal offense, it is not taken into account again as a circumstance aggravating liability and punishment. In accordance with paragraph 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 (hereinafter referred to as the normative resolution)" on some issues of the imposition of criminal penalties", if the circumstances provided for in Article 53 or Article 54 of the Criminal Code as one of the features qualifying the crime, the court may not recognize it as As it turned out in the case, when imposing a sentence on T., The Court of first instance took into account his criminal liability and sincere repentance for his actions as circumstances mitigating his punishment, the presence of young children. At the same time, as a circumstance aggravating criminal liability and punishment, a criminal offense was committed by a group of persons by preliminary conspiracy. And in the article of the Criminal Code, which recognized him guilty by a court verdict, it is provided as a sign of a criminal offense. In this regard, the judicial board on criminal cases came to the conclusion that the commission of a criminal offense by a group of persons by preliminary conspiracy as a circumstance aggravating the criminal liability and punishment of the convicted T. is not subject to re-consideration. When committing a criminal offense in accordance with paragraph 1) of part two of Article 55 of the criminal code, in the presence of mitigating circumstances that are not provided for as a sign of a committed crime and in the absence of aggravating circumstances, the term or amount of the main type of punishment may not exceed half of the maximum term or amount provided for in the relevant article of the special part of this code.
At the same time, the sanction of the second, third parts of Article 394, article 385 of the Criminal Code provides for an equivalent punishment in the form of a fine as a type of other punishment. However, in the verdict of July 22, 2019, the court did not justify the imposition of a fine on the convicted T. In accordance with the regulatory decree, if the sanction of an article of the criminal code that found a person guilty provides for alternative types of punishments, the courts should discuss the possibility of imposing a lighter type of punishment from them, considering that the stricter type of punishment will be applied only if the milder type of punishment in accordance with the second part of Article 52 of this code cannot ensure the achievement of the goal of punishment. The court decision must be motivated by the verdict. In this regard, the judicial board considers it necessary to impose a penalty in the form of a fine with the second part of Article 394, the second and third parts of Article 385 of the criminal code in accordance with the requirement of Paragraph 1) of the second part of Article 55 of the Criminal Code, taking into account the presence of circumstances mitigating the criminal liability and punishment of T. Also, judging by the petition of the convicted person, he was previously convicted by the verdict of this Court of June 17, 2019 for such actions before the verdict of the Court No. 2 of Kyzylorda city dated July 22, 2019. From the criminal case requested by the court, according to the verdict of the Court No. 2 of Kyzylorda city dated June 17, 2019, it was established that T. was sentenced to 2 years of imprisonment for a set of crimes, using the second part of Article 394, the fifth part of Article 28, the second and third parts of Article 385, the second part of Article 58 of the criminal code. By the resolution of the judicial board for criminal cases of Kyzylorda region dated September 11, 2019, this sentence was changed, the convict was sentenced to the second part of Article 394 of the criminal code in the amount of 500 monthly calculation indices (hereinafter referred to as MCI), i.e. a fine of 1,202,500 Tenge, the fifth part of Article 28, the second part of Article 385, 150 MCI, i.e. a fine of 360,750 Tenge, the fifth part of Article 28, the third part of Article 385 in the amount of 100 MCI, i.e. a fine of 240,500 tenge was imposed.
Circumstances aggravating criminal liability and punishment
According to the totality of crimes, in accordance with the second part of Article 58 of the Criminal Code, a fine of 500 MCI is finally imposed by absorbing a less severe punishment into a more severe one. According to the materials of the criminal case, the crime committed by T. in the period from August 2017 to June 2018 by the verdict of July 22, 2019, and the crime committed by the verdict of June 17, 2019 in August 2018. In accordance with the sixth part of Article 58 of the Criminal Code, if, after the verdict in the case of the convicted person, the court finds that he is guilty of another criminal offense committed before the verdict in the first case, the punishment is imposed according to the rules of this article. In this case, the sentence served by the first verdict of the court is calculated for the term of the final sentence. In this regard, the convicted T. should be punished according to the totality of the sentences of June 17, 2019 and July 22, 2019 in accordance with part six of Article 58 of the criminal code. The judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan amended the judicial acts of local courts in relation to the convicted T., eliminating the recognition of the convicted T. in the case of committing a criminal offense by a group of persons by preliminary conspiracy as a circumstance aggravating his criminal liability and punishment. In accordance with paragraph 1) of the second part of Article 55 of the criminal code, he imposed a separate penalty for each article:-with the second part of Article 394 of the Criminal Code-a fine of 550 MCI, that is, 1,322,750 tenge, with the second part of Article 385 of the Criminal Code-a fine of 200 MCI, that is, a fine of 481,000 tenge, with the third part of Article 385 of the Criminal Code - a fine of 80 MCI, that is, 192,400 tenge. In accordance with the second part of Article 58 of the Criminal Code, a fine of 550 MCI, that is, 1,322,750 tenge, was imposed by absorbing a less severe punishment into a more severe one. On the basis of the sixth part of Article 58 of the Criminal Code of the Kyzylorda region, by the verdict of the Court No. 2 of the city of Kyzylorda dated June 17, 2019 and the resolution of the judicial board for criminal cases of the Kyzylorda Regional Court dated September 11, 2019, by absorbing the punishment imposed by this resolution, T. finally imposed a fine in the amount of 550 MCI, that is, 1,322,750 tenge. By the verdict of the court of first instance, the remaining parts of the decision of the appellate court were left unchanged. The petition of the convicted T. was granted.
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