Deprivation of liberty while serving a sentence in an institution of the minimum security penal system
By the verdict of the court No. 2 of the city of Semey, East Kazakhstan region, dated March 19, 2020: D., who had no previous convictions, was sentenced under paragraph 2) of part 3 of Article 89 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 2 years in prison to serve her sentence in an institution of the minimum security penal system, with life imprisonment positions in the civil service, judges, local government bodies, the National Bank of the Republic of Kazakhstan and its departments, government organizations and quasi-public sector entities. By the verdict of the Court of D. She was found guilty of embezzlement of the entrusted property in the amount of 1,650,340 tenge, committed by a person equated to persons authorized to perform state functions, using her official position. By the decision of the Judicial Board for Criminal Cases of the East Kazakhstan Regional Court dated May 13, 2020, the verdict of the court remained unchanged. In the protest, the Acting Prosecutor General of the Republic of Kazakhstan, without disputing the evidence of guilt and the qualification of actions, asks to change the sentence against D., cancel the additional punishment and impose it in accordance with the wording of Article 50 of the Criminal Code in force at the time of the crime.
D.'s guilt in committing embezzlement of the entrusted property was proved by the evidence collected in the case. Her actions are correctly qualified under paragraph 2) of part 3 of Article 189 of the Criminal Code. D.'s main punishment was imposed by the court in accordance with the requirements of Article 52 of the Criminal Code, taking into account the gravity of the crime and the identity of the perpetrator. At the same time, when imposing additional punishment by the court, the criminal law was incorrectly applied. Thus, the Law of the Republic of Kazakhstan dated December 27, 2019 "On Amendments and additions to certain legislative acts of the Republic of Kazakhstan on improving criminal and criminal procedure legislation and strengthening the protection of individual rights" amended the wording of part 2 of Article 50 of the Criminal Code with the expansion of the list of positions subject to a lifetime ban. In accordance with article 5 of the Criminal Code, the criminality and punishability of an act are determined by the law in force at the time of its commission. It has been established from the materials of the criminal case that the crime of D. committed in the period from 2017 to 2019, that is, before the amendments of December 27, 2019. By imposing an additional sentence in accordance with the new version of Article 50 of the Criminal Code, the court worsened the situation of the convict. Whereas a law that worsens the situation of a person who has committed an unlawful act is not retroactive. In such circumstances, D. must be given an additional punishment in the wording of article 50 of the Criminal Code in force at the time of the commission of the crime.
The Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan changed the verdict of the court of first instance against D. The additional punishment in the form of a lifetime ban on holding positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, the authorized body for regulation, control and supervision of the financial market and financial organizations, state organizations and entities of the quasi-public sector. Assigned to D. additional punishment in the form of life imprisonment of the right to hold positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, government organizations and organizations in whose authorized capital the state's share is more than fifty percent, including national management holdings, national holdings, national companies, national institutions development companies owned by the state and their subsidiaries, more than fifty percent of the voting shares (participation interests) of which belong to them, as well as in legal entities, more than fifty percent of the voting shares (participation interests) of which belong to these subsidiaries. The rest of the verdict was left unchanged. The protest of the Acting Prosecutor General of the Republic of Kazakhstan is satisfied.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
