Exemption from criminal liability in connection with reconciliation of the parties
By the verdict of the Sairamsky District Court of the Turkestan region dated May 30, 2019: M. was convicted under paragraphs 1), 2), 3) of part 3 of Article 188 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 3 years of restriction of liberty. D., previously not convicted, convicted under part 3 of Article 24, paragraph 3) of part 2 of Article 188 of the Criminal Code to 2 years of restriction of freedom, according to paragraphs 1), 2), 3) of part 2 of Article 188 of the Criminal Code to 3 years of restriction of freedom. Based on part 2 of Article 58 of the Criminal Code, by absorbing a less severe punishment with a more severe one, he was finally sentenced to 3 years of restriction of freedom. N., who had no previous criminal record, was sentenced under paragraphs 1), 2), 3) of part 2 of Article 188 of the Criminal Code to 3 years of restriction of liberty. L., who had no previous criminal record, was released from criminal liability under paragraphs 1), 2), 3) of part 2 of Article 188 of the Criminal Code in connection with the reconciliation of the parties. The case was not considered on appeal. In the protest, the Prosecutor General, without disputing the evidence of the convicts' guilt and the correctness of the qualification of their actions, believed that the court's verdict against M., D. and N. should be changed due to the incorrect application of the criminal law. Having studied the materials of the criminal case and the arguments of the protest, the judicial board concludes that the Prosecutor General's protest is justified and must be satisfied on the following grounds. It follows from the case file that the defendants M., D., N. and L. The pre-trial investigation body was accused of repeated theft of other people's property by a group of persons by prior arrangement, with illegal entry into residential, office or industrial premises, storage or vehicle, theft committed on a large scale, and unlawful possession of a car or other vehicle without the purpose of theft.
Exemption from criminal liability in connection with reconciliation of the parties
The court of first instance recognized the incorrect qualification of the defendants' actions under Part 3 of Article 188 of the Criminal Code, since the amount of damage caused to each of the victims does not exceed the limit of five hundred monthly calculation indices established by paragraph 38) of Article 3 of the Criminal Code and reclassified their actions to part 2 of Article 188 of the Criminal Code. When sentencing M., D. and N., in accordance with paragraphs 1), 3) of part 1 of Article 54 of the Criminal Code, the repeated occurrence of criminal offenses and the commission of a criminal offense as part of a group of persons were taken into account as circumstances aggravating responsibility and punishment. Meanwhile, according to part 2 of Article 58 of the Criminal Code, if an aggravating circumstance is provided for by the relevant article of the Special Part of the Criminal Code as a sign of a criminal offense, it cannot be re-considered as a circumstance aggravating responsibility and punishment. By the verdict of the court, M., D. and N. were found guilty of secret theft of other people's property, committed by a group of persons by prior agreement, repeatedly, with illegal entry into residential premises. In such circumstances, the specified qualifying features cannot be taken into account again as circumstances aggravating responsibility and punishment. In addition, his previous criminal record was unlawfully recognized by the court as a circumstance aggravating M.'s criminal responsibility and punishment. According to part 3 of Article 54 of the Criminal Code, when imposing punishment, the court cannot recognize as aggravating circumstances not specified in part 1 of Article 54 of the Criminal Code. The court did not establish any other aggravating circumstances in the actions of M., D. and N. The Court of First Instance as mitigating the criminal liability and punishment of M., D. and N. also acknowledged their youth, sincere confession of guilt and remorse for what they had done, positive characteristics from their place of residence and making amends for the harm caused. According to paragraph 1) of part 2 of Article 55 of the Criminal Code, if there is a mitigating circumstance that is not provided for as a sign of a committed crime and there are no aggravating circumstances, the term or amount of the main type of punishment may not exceed half of the maximum term or amount provided for in the relevant article of the Special Part of the Criminal Code.
The sanction of part 2 of Article 188 of the Criminal Code provides for a maximum term of imprisonment of up to 5 years, therefore, half of this period is 2 years and 6 months. In accordance with the requirements of part 3 of Article 56 of the Criminal Code, the term or amount of punishment for an attempted crime may not exceed three quarters of the maximum term or amount of the main type of punishment provided for in the relevant article, which is 3 years and 9 months from 5 years. Therefore, the size of the assigned d. The penalty may not exceed half of the maximum term, which is from 3 years 9 months to 1 year 10 months 15 days. Taking into account the above-mentioned norms of the law, the amount of punishment imposed on M. and N. in the form of restriction of liberty may not exceed 2 years 6 months, D. – 1 year 10 months 15 days. In the circumstances described, the court of first instance committed gross violations of the norms of the criminal law, which led to the incorrect application of the norms of criminal law. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the verdict of the court of first instance, excluded from the verdict the recognition of circumstances aggravating criminal responsibility and punishment of M., D. and N., the commission of a criminal offense as part of a group of persons and the repetition, as well as the recognition of M.'s previous criminal record as an aggravating circumstance. With the application of the provisions of paragraph 1) of part 2 of Article 55 of the Criminal Code, the sentence was reduced: - M. and N. under paragraphs 1), 2), 3) of part 2 of Article 88 of the Criminal Code to 2 years and 6 months of restriction of liberty; - D. under part 3 of Article 24, paragraph 3) of part 2 of Article 188 of the Criminal Code, up to 1 year 10 months 15 days of restriction of freedom, under paragraphs 1), 2), 3) of part 2 of Article 188 of the Criminal Code, up to 2 years 6 months of restriction of freedom. Based on part 2 of Article 58 of the Criminal Code, D. 2 years and 6 months of restriction of freedom were finally imposed by absorbing a less severe punishment with a more severe one. The rest of the verdict remains unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied.
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