Criminal liability for attempted crimes of moderate severity, grave or especially grave crimes, as well as for attempted terrorist crimes
By court Decision No. 2 of the Saryarkinsky district of Astana dated August 28, 2015, the case against M., who had no previous convictions, was terminated under part 1 of Article 187 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), and he was released from criminal liability on the basis of part 1 of Article 68 of the Criminal Code in connection with reconciliation with the victim's representative. In accordance with parts 2 and 3 of Article 169 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the proceedings in respect of a civil claim in the amount of 5,728 tenge have been terminated. The case was not considered on appeal. The court found M. guilty of secretly stealing 4 pieces of Tabasco sauce worth 1,432 tenge each from the 5 Minutes supermarket located at 55 Zhenis Avenue, Astana, causing material damage totaling 5,728 tenge. In the submission, the Chairman of the Supreme Court of the Republic of Kazakhstan indicates that M.'s actions lack the elements of a criminal offense provided for in part 1 of Article 187 of the Criminal Code. In this regard, he considers that the decision is subject to cancellation with the termination of the proceedings on the basis of paragraph 2) of part 1 of Article 35 of the CPC. The case materials established that on August 11, 2015, M. did indeed steal Tabasco sauce in the 5 Minutes supermarket located at 55 Zhenis Avenue, Astana, in the amount of 4 pieces, worth 1,432 tenge each, causing minor material damage totaling 5,728 tenge.
Criminal liability for attempted crimes of moderate severity, grave or especially grave crimes, as well as for attempted terrorist crimes
The actions of secretly stealing other people's property were recorded on a video surveillance camera, stopped by the security manager N. and the stolen property was seized until it could be disposed of at his discretion. The value of the stolen property did not exceed ten monthly calculation indices, therefore, according to paragraph 10) of Article 3 of the Criminal Code, it refers to an insignificant amount. This indicates that M. had a direct intention to secretly steal someone else's property, which was not completed due to circumstances beyond his control, that is, there was an attempt on a criminal offense. By virtue of part 4 of Article 24 of the Criminal Code, criminal liability is imposed for attempted crimes of moderate severity, grave or especially grave crimes, as well as attempted terrorist crimes. According to paragraph 7 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 8 "On judicial practice in cases of embezzlement", theft is considered completed if the property is seized and the perpetrator has a real opportunity to use or dispose of it at his discretion. The sanction of part 1 of Article 187 of the Criminal Code provides for punishment in the form of a fine, correctional labor, community service and arrest, therefore, the act committed by M. belongs to the category of criminal offenses. Since the criminal law does not provide for criminal liability for attempted commission of a criminal offense, M.'s actions do not constitute a criminal offense under part 1 of Article 187 of the Criminal Code, and he is subject to justification. Criminal liability for attempted crimes of moderate severity, grave or especially grave crimes, as well as for attempted terrorist crimes, In such circumstances, M.'s release from criminal liability in connection with reconciliation with the victim and making amends for the damage caused under part 1 of Article 68 of the Criminal Code, on non-rehabilitating grounds, is illegal. In view of the above, the Judicial Board for Criminal Cases of the Supreme Court overturned the decision of the court of first instance in respect of M. and the criminal proceedings on the basis of paragraph 2) of part 1 of Article 35 of the CPC were terminated due to the absence of elements of a criminal offense in M.'s actions, provided for in part 1 of Article 187 of the Criminal Code. In accordance with Chapter 4 of the CPC, M. is recognized as having the right to rehabilitation and compensation for damage caused by illegal actions of the bodies conducting the criminal process. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied.
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