Exemption from criminal liability is not a criminal offense for an act or omission that does not pose a public danger due to its insignificance.
By the verdict of the Kazybekbi District Court of the city of Karaganda dated November 3, 2017, S., who had no previous convictions, was found guilty of stealing other people's property and sentenced under part 1 of Article 188 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 1 year and 6 months of restriction of freedom with the establishment of probation control and forced labor in places determined by local authorities. executive bodies, for a period of 180 hours per year. With the convict S. The amount of material damage in the amount of 60,000 tenge was recovered in favor of K., a state duty in the amount of 600 tenge was paid to the state revenue. By the resolution of the Judicial Board for Criminal Cases of the Karaganda Regional Court dated January 4, 2018, the verdict of the court was changed. S.'s actions were reclassified to part 1 of Article 189 of the Criminal Code with the imposition of punishment in the form of restriction of liberty for a period of 1 year and 6 months, with the establishment of probation control and forced labor in places designated by local executive bodies for 180 hours per year. In the petition, convict S. indicates that she had no intent to embezzle, she took the money owed to her in the amount of 60,000 tenge as wages from the cash register. The convict asks to cancel the sentence and dismiss the case for lack of her guilt. The court of first instance, having correctly established the circumstances of the case, gave an incorrect legal assessment to the actions of the convicted S. Thus, it follows from the materials of the criminal case that on September 10, 2016, S. got a job as a salesman at a building materials store owned by an individual entrepreneur K. At the same time, the employment relationship between them was not formalized in writing.
Due to the fact that K. refused to pay S. her wages on time, she decided to unilaterally terminate the contract, took 60,000 tenge as her salary, and left the rest of the money from the proceeds of the day, along with an explanatory note and the key to the store's front door, at the store's cash desk. In such circumstances, the conclusions of the court of first instance on the commission of S. theft of someone else's property entrusted to her are not based on the law. C. Actions. They contain formal signs of a criminal offense provided for in Part 1 of Article 389 of the Criminal Code (arbitrariness), that is, unauthorized, contrary to the procedure established by the legislation of the Republic of Kazakhstan, the exercise of one's actual or alleged right disputed by another person or organization. At the same time, it is clear from the materials of the criminal case that S.'s actions were forced and committed due to the fact that the victim K. refused to pay her wages, whereas S. she has a difficult financial situation, she alone supports and brings up a minor child, while she does not have any other income than her earnings from her place of work. S., having taken 60,000 tenge from the store's cash register, actually acted within the framework of the agreement with K. an oral employment contract and did not go beyond it. Taking into account these circumstances, the court of cassation considers that the act committed by S. is insignificant and does not pose a public danger. According to part 4 of Article 10 of the Criminal Code, an act or omission is not a criminal offense, although it formally contains signs of an act provided for in the Special Part of the Criminal Code, but because of its insignificance it does not pose a public danger. As a result of the above, the judicial Board for Criminal Cases of the Supreme Court annulled the judicial acts of the local courts against S. and, on the basis of part 4 of Article 10 of the Criminal Code, the criminal case was terminated due to the insignificance of the act she had committed and therefore did not pose a public danger. The convicted woman's petition has been granted.
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