Criminal Defense Lawyer in Almaty, Kazakhstan

By the verdict of the court No. 2 of the Baykonyr district of the city of Nur-Sultan dated June 5, 2020: Zh., previously convicted: 1) on February 17, 2016, under paragraph 2) of part 2 of Article 188 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), to 2 years in prison. On January 20, 2017, the unserved part of the sentence – 9 months and 23 days – was commuted to restriction of freedom; 2) on May 24, 2017, under part 1 of Article 188 of the Criminal Code, to 2 years of imprisonment; 3) on December 19, 2019, under part 1 of Article 188 of the Criminal Code, to 1 year and 6 months of restriction of freedom; 4) on April 16, 2020, under part 2 of Article 296 of the Criminal Code, he was sentenced to 40 hours of community service, and was sentenced to 1 year in prison under part 1 of Article 188 of the Criminal Code, and on the basis of part 6 of Articles 58, 60 of the Criminal Code, he was finally sentenced to 1 year and 6 months in prison, serving his sentence in an institution of the penitentiary system maximum security. The time of detention from May 1, 2020 until the entry into force of the sentence was counted towards the term of serving the sentence, based on one day of detention per one and a half days of serving the sentence in a medium-security facility. By a decision of the same court dated June 16, 2020, it was clarified that in the operative part of the sentence it should be considered correct to "set off the term of detention from May 1, 2020 until the sentence enters into force at the rate of one day of detention for one day of serving a sentence in a maximum security facility." By the decision of the Judicial Board for criminal Cases of the Nur-Sultan City Court dated August 5, 2020, the verdict was changed. It was decided to appoint J. serving a custodial sentence in a medium-security facility. The time of detention since April 30, 2020 has been clarified.

Criminal Defense Lawyer in Almaty, Kazakhstan

It is counted in the term of punishment of Zh. The period of detention from April 30, 2020 until the entry into force of the sentence is calculated at the rate of one day of detention for one and a half days of serving a sentence in a medium-security facility. In the protest, the Prosecutor General, without disputing the evidence of Zh.'s guilt and the correctness of the qualification of his actions, asks to cancel the board's decision, the verdict of the court of first instance and leave the decision unchanged. He believes that Zh., as a person who previously served his sentence in places of deprivation of liberty, should be assigned an institution of the maximum security penal system, as indicated in the court verdict. Having studied the case materials, the arguments of the protest, having listened to the prosecutor's statement in their support, and the lawyer, who believed that the board's decision should be left unchanged, the judicial board considers that the court's verdict and the decision of the judicial board for criminal cases of the Nur-Sultan City Court should be changed on the following grounds. The guilt of J. the commission of a crime under the circumstances set out in the verdict was established by the totality of reliable and admissible evidence examined at the court session. His actions were correctly qualified under part 1 of Article 188 of the Criminal Code, and the punishment was imposed in accordance with the requirements of Article 52 of the Criminal Code, taking into account the nature of the crime and the identity of the perpetrator. At the same time, when passing a sentence and determining the type of correctional institution, the court of first instance committed a gross violation of the law. In accordance with the requirements of Article 402 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the verdict or its introductory and operative parts are announced after the signing of the full text of the verdict by the presiding judge. According to paragraph 4 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On the court verdict", making any corrections to the verdict after its proclamation is unacceptable. However, when viewing the AVF recording of the minutes of the court session dated June 5, 2020, it was found that when the operative part of the verdict was announced, the chairman indicated the appointment of J. for serving a custodial sentence in an institution of the medium-security criminal executive system, with the time of detention counted against the term of punishment at the rate of one day for one and a half days of serving a sentence in an institution of medium security. Subsequently, in the full text of the verdict on paper, the presiding judge indicated the appointment of J. maximum security institutions for serving sentences. In addition, in violation of the requirements of paragraph 9) of part 1 of Article 390 of the Article and paragraph 7) of part 1 of Article 398 of the CPC, the decision of the same court dated June 9, 2020 clarified the omission in the operative part of the sentence about the offset of time in custody for the term of punishment at the rate of one day for one and a half days of serving the sentence in It was decided to clarify that the time of detention should be calculated at the rate of one day of detention for one day of serving a sentence in a maximum security institution. Due to the absence of petitions aimed at worsening the convict's situation, the court of appeal correctly adjusted the sentence in accordance with the proclaimed judicial act and appointed J. serving a sentence in a medium-security institution, the term of the convicted person's detention until the sentence enters into legal force has been offset.

However, according to part 2 of Article 487 of the CPC, the issue of reviewing a sentence that has entered into force for reasons that worsen the situation of the convicted person is allowed within one year after its entry into force. In this case, the specified period has not expired. Currently, in connection with the protest, the judicial board considers that judicial acts should be amended and J. should be designated, in accordance with paragraph 3) of part 5 of Article 46 of the Criminal Code, to serve his sentence in the institution of a maximum security penal system, since he previously served a prison sentence for committing an intentional crime. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in relation to Zh. Defined by J. to serve a custodial sentence, the institution of a maximum security penal system. The time of detention of Zh was counted towards the term of punishment. in custody from April 30, 2020, until the entry into force of the sentence, at the rate of one day of detention for one day of serving a sentence in a maximum security facility. The rest of the judicial acts remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan was partially satisfied. In addition, in violation of the requirements of paragraph 9) of part 1 of Article 390 of the Article and paragraph 7) of part 1 of Article 398 of the CPC, the decision of the same court dated June 9, 2020 clarified the omission in the operative part of the sentence about the offset of time in custody for the term of punishment at the rate of one day for one and a half days of serving the sentence in It was decided to clarify that the time of detention should be calculated at the rate of one day of detention for one day of serving a sentence in a maximum security institution. Due to the absence of petitions aimed at worsening the convict's situation, the court of appeal correctly adjusted the sentence in accordance with the proclaimed judicial act and appointed J. serving a sentence in a medium-security institution, the term of the convicted person's detention until the sentence enters into legal force has been offset.

Criminal Defense Lawyer in Almaty, Kazakhstan

However, according to part 2 of Article 487 of the CPC, the issue of reviewing a sentence that has entered into force for reasons that worsen the situation of the convicted person is allowed within one year after its entry into force. In this case, the specified period has not expired. Currently, in connection with the protest, the judicial board considers that judicial acts should be amended and J. should be designated, in accordance with paragraph 3) of part 5 of Article 46 of the Criminal Code, to serve his sentence in the institution of a maximum security penal system, since he previously served a prison sentence for committing an intentional crime. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in relation to Zh. Defined by J. to serve a custodial sentence, the institution of a maximum security penal system. The time of detention of Zh was counted towards the term of punishment. in custody from April 30, 2020, until the entry into force of the sentence, at the rate of one day of detention for one day of serving a sentence in a maximum security facility. The rest of the judicial acts remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan was partially satisfied. 

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