Criminal liability is imposed only for attempted crimes of moderate severity, grave or especially grave category, as well as for attempted terrorist crimes, but not for criminal offenses.
By the verdict of court No. 2 of the Zelenovsky district of the West Kazakhstan region dated February 24, 2015, K. was sentenced to 100 hours of community service under part 1 of Article 187 of the Criminal Code. K. was found guilty of taking a bottle of Label whiskey from the window on February 7, 2015, while in the Dina hypermarket in Michurinskoye village. 200 gr. in the amount of 1,000 tenge, hiding whiskey in his pants pocket, he went through the cash register to the exit, where he was detained by employees of the hypermarket. The criminal case was not considered on appeal. In the protest, the Prosecutor General asks the court to cancel the verdict and terminate the criminal case for lack of evidence of a criminal offense provided for in part 1 of Article 187 of the Criminal Code. After listening to the statement of the prosecutor who supported the arguments of the protest, having studied the materials of the criminal case, having discussed the arguments contained in the protest, the judicial board concluded that the protest should be satisfied on the following grounds. It is clear from the case file that K. tried to secretly take whiskey out of the hypermarket, but was unable to carry out this intention due to his detention at the exit. According to article 24 of the Criminal Code, an attempt is an act committed with direct intent, directly aimed at committing a crime, if the crime was not completed due to circumstances beyond the control of the person.
Paragraph 7 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 "On judicial practice in cases of embezzlement" states that 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. Without leaving the hypermarket, K. could not use or dispose of the stolen goods. His intent was to secretly steal property, and he could not use or dispose of alcoholic beverages in the hypermarket itself, as he would immediately be noticed by the service staff using surveillance cameras. The report on criminal misconduct dated February 10, 2015 stated that K. In order to realize his criminal intent aimed at committing petty theft, while in a retail premises for the sale of alcoholic beverages, he drew attention to a grocery cart containing whiskey called "LABEL"-5 and, taking advantage of the lack of attention from security personnel, secretly stole one bottle of whiskey with a capacity of 200 grams. he hid it in the right outer pocket of his jacket, with the aim of further disposing of it at his discretion, headed for the exit, where, passing the cash register, he was detained by the security staff of the Dina hypermarket. The convicted K. admitted his guilt and testified that on February 7, 2015, at about 18:40, while with friends in the area of the Dina hypermarket, he decided to commit the theft of alcoholic beverages. After going to the sales area where alcoholic beverages were located, he took 1 bottle of whiskey, with a capacity of 200 grams, worth 1,059 tenge and put it in his jacket pocket. When leaving the store, when he passed the cash register, he was detained and confessed everything. From the testimony of witness N. It was established that she works as a video surveillance operator. On February 07, 2015, at 6:40 p.m., she noticed a guy who, while in the sales area of the Dina hypermarket, committed theft by putting a bottle of whiskey in his pocket. She informed Controller A. Similar testimony was given by witness A. Thus, convicted K. did not complete the theft, which indicates the absence of a completed criminal offense. Therefore, his actions should be classified as attempted petty theft. According to part 4 of Article 24 of the Criminal Code, criminal liability occurs only for attempted crimes of moderate severity, grave or especially grave category, as well as for attempted terrorist crimes, he also committed an attempt to commit a criminal offense, therefore, there is no criminal offense in his actions. An innocent man was convicted. Based on the above, the judicial board of the Supreme Court for Criminal Cases overturned the verdict of the court of first instance, and the criminal case against K. was terminated for lack of evidence of a criminal offense. According to articles 37 and 39 of the CPC, K. is recognized as having the right to compensation for damage caused by unlawful criminal prosecution. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied.
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