Committing acts of a sexual nature with the threat of violence, using a helpless state

By the verdict of the specialized interdistrict Criminal Court of Almaty dated June 5, 2020, decided with the participation of jurors: O., who had no previous convictions, was sentenced under part 4 of Article 121 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) with the application of part 7 of Article 81, parts 2, 4 of Article 55 of the Criminal Code to 5 years in prison freedom, with life imprisonment for the right to hold teaching positions and positions related to work with minors, with serving a sentence in an institution of the medium-security penal system for the detention of minors. The term for serving the sentence is calculated from September 25, 2019. Based on paragraph 2) of Part 3 of Article 62 of the Criminal Code, convicted O. was credited with the time of detention before the sentence entered into force at the rate of one day per one and a half days of serving a sentence of imprisonment in an institution of the medium-security penal system for the detention of minors. Recovered from O. in favor of P. due to compensation for moral damage, 1,500,000 tenge, a compulsory payment in the amount of 30 monthly calculation indices in the amount of 75,750 tenge was made to the Compensation Fund for Victims. By the decision of the Judicial Board for Criminal Cases of the Almaty City Court dated August 25, 2020, the court's verdict against O. remained unchanged. According to the verdict of the court with the participation of jurors, O. was found guilty of committing other sexual acts with the threat of violence, using the victim's helpless state, against a known minor. In the protest, the Prosecutor General of the Republic of Kazakhstan, without disputing the qualifications and evidence of the convict's guilt, believes that the judicial acts that have entered into force are subject to change due to incorrect application of the criminal law when imposing additional punishment. Since O. committed the crime at a minor age, the deprivation of the right to engage in certain activities in accordance with the requirements of part 2 of Article 81 of the Criminal Code could be imposed for a period of one to two years. Requests to review the case regarding the appointment of Fr. additional punishment by canceling the additional punishment imposed in the form of a lifetime ban on holding teaching positions and positions related to work with minors and imposing an additional punishment in the form of deprivation of the right to hold teaching positions and positions related to work with minors for a period of two years.

Committing acts of a sexual nature with the threat of violence, using a helpless state

In the rest, he asks to leave the judicial acts unchanged. The court considered the case against O. with the participation of jurors in accordance with the provisions of Section 14 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC). According to the requirements of Article 665 of the CPC, the cassation review of sentences and decisions rendered in cases considered with the participation of jurors is carried out by the collegium of the Supreme Court of the Republic of Kazakhstan on the grounds provided for in paragraph 1) parts one and two of Article 485 of this Code, or in connection with the improper application of the norms of the General and Special parts of the Criminal Code of the Republic of Kazakhstan when imposing punishment. The court's verdict was made taking into account the specifics provided for in article 658 of the CPC. The descriptive and motivational part of the conviction against convicted O. contains a description of the criminal act of which he was found guilty, the qualification of what he had done, the motives for sentencing and the justification of the court's decision regarding the civil claim. Based on the circumstances of the criminal case established by the conviction, the criminal acts of convicted O., recognized as proven by the court with the participation of jurors, are correctly qualified under part 4 of Article 121 of the Criminal Code. At the same time, the arguments of the protest about the incorrect application of the criminal law when imposing additional punishment deserve attention. According to the provisions of paragraph 9 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of criminal punishment", when sentencing minors, courts should take into account that only those types of criminal punishment specified in Article 81 of the Criminal Code can be applied to them, and their terms and amounts are not they may exceed the limits set by this article. According to part 2 of Article 81 of the Criminal Code, deprivation of the right to engage in certain activities is imposed on minors for a period of one to two years. o. a crime was committed at a minor age. At the same time, the board notes the competition of criminal law norms when imposing additional punishment, provided for by the sanction of part 4 of Article 121 of the Criminal Code, in the form of life imprisonment for the right to hold certain positions or engage in certain activities. Since the law contains special rules governing the criminal liability of minors, these rules for the imposition of additional punishment, contained in the second part of Article 81 of the Criminal Code, are subject to application. In such circumstances, convicted O. must be given an additional punishment in the form of deprivation of the right to hold teaching positions and positions related to work by minors for a period of two years. Thus, the judicial acts that took place in the case are subject to change due to the incorrect imposition of additional punishment. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court amended the judicial acts of the local courts in relation to O. Abolished the additional punishment of life imprisonment for the right to hold teaching positions and positions related to work with minors. She imposed an additional punishment in the form of deprivation of the right to hold teaching positions and positions related to work with minors for a period of two years. The rest of the judicial acts remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied. 

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