Exemption from criminal liability and punishment

Exemption from criminal liability and punishment on the basis of an amnesty act In accordance with paragraph 7 of Article 5 of the Law of the Republic of Kazakhstan "On Amnesty in connection with the twenty-fifth anniversary of Independence of the Republic of Kazakhstan" dated December 13, 2016, amnesty does not apply to persons previously released under amnesty and who again committed intentional crimes by the Verdict of the Auezovsky District Court of Almaty dated December 6, 2016. On March 2017, L., previously convicted, on August 10, 2000 under paragraphs "b, c" of part 2 of Article 175, part 1 of Article 259, Article 58 of the Criminal Code of the Republic of Kazakhstan (hereinafter – CC) to 4 years in prison; while serving the sentence, on the basis of part 2 of Article 9 of the Law of the Republic of Kazakhstan dated February 19, 2002 "On Amnesty in connection with the Decade of Independence of the Republic of Kazakhstan", the unserved part of the sentence was reduced by half.; - convicted under paragraph 3 of part 2 of Article 188 of the Criminal Code to 1 year and 6 months of imprisonment with confiscation of property, while serving his sentence in a general regime penal colony. Based on article 3 of the Law of the Republic of Kazakhstan dated December 13, 2016 "On Amnesty in connection with the twenty–fifth anniversary of Independence of the Republic of Kazakhstan" (hereinafter referred to as the Amnesty Law), the unserved part of the sentence of 1 year 4 months and 29 days of imprisonment was replaced by restriction of liberty for the same period.

Exemption from criminal liability and punishment

In accordance with part 3 of Article 62 of the Criminal Code, the period of detention from December 14, 2016 to March 6, 2017 was counted towards the term of punishment and was finally determined to serve 1 year, 2 months, and 9 days of restriction of liberty. 8,000 tenge were recovered from L. in favor of K. as compensation for material damage, and a state fee in the amount of 80 tenge and procedural costs in the amount of 2,374 tenge were transferred to the state income. By the verdict of the court, L. was found guilty of theft from a car interior with damage to the victim K. in the amount of 28,000 tenge. The verdict was not reviewed on appeal. In the protest, the Prosecutor General of the Republic of Kazakhstan, without disputing the qualification of the actions and the evidence of the convict's guilt, believes that the court's verdict should be changed due to the unjustified application of the amnesty act and violation of the requirements of the General Part of the Criminal Code of the Republic of Kazakhstan, which resulted in the incorrect imposition of additional punishment. Requests the verdict of the Auezovsky District Court of Almaty dated March 6, 2017 against L. to change and cancel the application of L. The Amnesty Law should exclude the imposition of additional penalties in the form of confiscation of property due to the failure to identify property of criminal origin. The court's conclusions about L.'s guilt in the crime are based on evidence comprehensively, fully and objectively examined at the court session, correspond to the actual circumstances of the case and are not disputed in the protest. L.'s actions were correctly qualified by the court under paragraph 3 of part 2 of Article 188 of the Criminal Code. At the same time, the protest arguments about the illegal application of the amnesty act are well-founded. It follows from the case file that L. Earlier, during the period of serving the sentence imposed by the court verdict of August 10, 2000, on the basis of part 2 of Article 9 of the Law of the Republic of Kazakhstan "On Amnesty in connection with the Decade of Independence of the Republic of Kazakhstan" dated February 19, 2002, the unserved part of the sentence was reduced by half. Amnesty, in accordance with paragraph 7 of article 5 of the Amnesty Law, is not applied to persons who have previously been granted amnesty and who have again committed intentional crimes. In such circumstances, the court, when sentencing L. He was not entitled to re-apply the above-mentioned amnesty act of December 13, 2016.

At the same time, discussing the issue of the measure of punishment, the judicial board considers the punishment imposed on the convicted person in the form of imprisonment to be excessively harsh, not corresponding to the public danger of the deed. In accordance with paragraph 5 of part 1 of Article 485 of the CPC, the basis for the review of judicial acts that have entered into force in cassation is the incorrect imposition of punishment or the discrepancy between the severity of the criminal offense and the personality of the convicted person. There are such grounds in this criminal case. As follows from the materials of the criminal case, the convicted L. He fully admitted his guilt and sincerely repented of what he had done. The above circumstance was recognized by the court as mitigating the criminal liability and punishment of the convicted person. No aggravating circumstances have been established in the case. In addition, beyond the judicial assessment, there was evidence that L. suffers from tuberculosis and HIV infection, and the damage not reimbursed in the amount of 8,000 tenge is insignificant. In total, property worth 28,000 tenge was stolen. The actions committed by the convicted person are classified as crimes of moderate severity. In accordance with part 2 of Article 39 and parts 2, 3 of Article 52 of the Criminal Code, punishment is applied in order to restore social justice, correct a convicted person and prevent the commission of new crimes by both convicted persons and others. When imposing punishment, the nature and degree of public danger of a criminal offense, the identity of the perpetrator, including his behavior before and after the commission of the offense, circumstances mitigating and aggravating responsibility and punishment, the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family or dependents, are taken into account. Based on the requirements of the law, it is obvious that all of these conditions, forming the general principles of sentencing, must be fulfilled in their entirety.

Only if this requirement is met can the court impose a fair punishment that meets its objectives set out in the criminal law. Under the established circumstances, the non-compensation of damage to the victim in the amount of 8,000 tenge and the information that L. is not engaged in socially useful work, he has been convicted several times before (criminal records have been expunged) do not indicate the need to impose the most severe punishment provided for by the sanction of part 2 of Article 188 of the Criminal Code. Under the established circumstances, the appointment of L. The punishment in the form of imprisonment is excessively harsh and does not meet the criteria of justice. Taking into account the above, the judicial board concludes that it is necessary to impose a punishment in the form of restriction of liberty on the convicted person with the establishment of probation control and the imposition of duties on the convicted person provided for in part 2 of Article 44 of the Criminal Code. There is no need to impose mandatory additional punishment in the form of confiscation of property, since property of criminal origin has not been established in the case. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the verdict of the court of first instance against L., abolished the application of the Amnesty Law. L. was sentenced to restriction of liberty for a period of 1 year and 6 months. The time of L.'s detention from October 7, 2016 to October 10, 2016, and from November 16, 2016 to March 6, 2017, calculated at the rate of one day of imprisonment for one day of restriction of freedom, was counted in the term of serving the sentence in the form of restriction of freedom. By the time of L.'s final departure, 1 year, 2 months, and 7 days of restriction of freedom were determined.  Probation control has been established for the entire period of restriction of freedom. L. is also charged with the performance of duties: do not change your permanent place of residence, work, or study without notifying the authorized state body responsible for monitoring the behavior of the convicted person; do not visit entertainment venues (nightclubs, cafes, bars, restaurants) where drinking alcohol is allowed. The court ordered L. to appear and register with the probation department at her place of residence. In accordance with Article 44 of the Criminal Code of L. He was involved in forced labor in places designated by local executive bodies, but not more than two hundred and forty hours per year. The rest of the verdict was left unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan was partially satisfied. 

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