Criminal offenses, criminal liability is imposed only for attempted crimes of moderate severity, grave or especially grave, as well as for attempted terrorist crimes. The law does not provide for criminal liability for attempted commission of a criminal offense.
By the resolution of the District Court No. 2 of the Almaty district of Astana dated February 6, 2015, D., previously convicted, on June 12, 2013 under paragraph "a" of part 2 of Article 178 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), was released from prison for 3 years, conditionally, with a probation period of 2 years. criminal liability under part 1 of Article 187 of the Criminal Code for reconciliation with the victim through mediation. D. was accused of secretly stealing two chocolates worth 308 tenge from the Bacchus-2 supermarket on January 23, 2015, but was detained by a security officer on his way out. The case was not considered on appeal. In the submission, the Chairman of the Supreme Court points out that D.'s release from criminal liability in connection with reconciliation with the victim and making amends for the damage caused on non-rehabilitating grounds is illegal, since he attempted to commit a criminal offense, which does not constitute a criminal offense. In accordance with 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. 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 theft", 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.
Criminal offenses, criminal liability occurs only for attempted crimes of moderate severity
In the case, it was reliably established that D., having stolen the chocolate, tried to secretly take it out of the store without paying, but could not carry out his intention, as he was detained by a security officer. The value of the property that D. tried to steal does not exceed ten monthly calculation indices and, according to paragraph 10) of Article 3 of the Criminal Code, refers to an insignificant amount. Thus, the factual circumstances of the case indicate that D. He was unable to complete his plan aimed at the secret theft of property due to circumstances beyond his control. Consequently, his actions lack the elements of a completed criminal offense and his act should be qualified as an attempt at petty theft of other people's property. According to part 3 of Article 10 of the Criminal Code, the offense provided for in part 1 of Article 187 of the Criminal Code refers to misconduct. At the same time, according to part 4 of Article 24 of the Criminal Code, criminal liability is imposed only for attempted crimes of moderate severity, grave or especially grave, as well as for attempted terrorist crimes. The law does not provide for criminal liability for attempted commission of a criminal offense. Accordingly, D.'s actions lacked the elements of a criminal offense provided for in part 1 of Article 187 of the Criminal Code, and he was subject to justification. Termination of proceedings on the basis of part 1 of Article 68 of the Criminal Code by way of mediation, that is, on non-rehabilitating grounds, is illegal, as it worsens the situation of D.
Based on the above, the judicial Board for Criminal Cases of the Supreme Court overturned the decision of the court of first instance in respect of D., the proceedings were terminated due to the absence of elements of a criminal offense in his actions. In accordance with chapter 4 of the Criminal Procedure Code of the Republic of Kazakhstan, the right to rehabilitation and compensation for harm caused by illegal actions of the bodies conducting the criminal process is recognized for D. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied.
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