Exemption from punishment on the basis of the amnesty law
By the verdict of the Kapshagai City Court of Almaty region dated June 26, 2017, M. previously: 1) on November 23, 2001, under Paragraph "B" of Part 2 of Article 175 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code), the sentence imposed in accordance with Article 63 of the criminal code is considered conditional and a probationary period of 2 years is established. Released from serving a sentence in accordance with Article 12 of the law of the Republic of Kazakhstan dated February 19, 2002 "on amnesty in connection with the tenth anniversary of independence of the Republic of Kazakhstan" (hereinafter referred to as the law on Amnesty) ; 2) on November 15, 2003, Part 1 of Article 175 of the criminal code is sentenced to 2 years of imprisonment, the punishment imposed in accordance with Article 63 of the criminal code is considered conditional and a probationary period of 2 years is established; 3) on July 19, 2006, in accordance with Paragraph "B" of Part 2 of Article 177 of the criminal code, in accordance with Article 60 of the criminal code, the execution of the sentence on the basis of Part 1 of Article 72 of the Criminal Code of 2020 postponed until May 6. On September 2, 2009, he was sent to a general regime correctional colony to serve his sentence, and on June 15, 2011, he was released from serving his sentence on parole for 1 year 7 months 6 days;
Exemption from punishment on the basis of the amnesty law
4) sentenced to 4 years of restriction of liberty by paragraphs "a,B" of Part 3 of Article 177 of the criminal code on February 22, 2013; 5) sentenced to 4 years of imprisonment by paragraph 1) of Part 3 of Article 190 of the criminal code on February 29, 2016, to 4 years of imprisonment with partial inclusion of the unserved part of the sentence of restriction of liberty for 4 years, established by the sentence of February 22, 2013 in accordance with Part 1 of Article 60 of the Criminal Code-with confiscation of property under Paragraph "B" of Part 3 of Article 177 of the criminal code, sentenced to 3 years of imprisonment. In accordance with Article 60 of the criminal code, the sentence of February 29, 2016 established by partial addition of the sentence with the confiscation of the final property, imprisonment for 5 years and serving the sentence in a medium-safe institution of the Penal correction system. From M. in favor of the victim E. 1,638,120 tenge of material damage, 16,381 tenge of state duty in favor of the state and 17,945 tenge of procedural costs were collected. By the verdict of the court, M. was found guilty of conspiracy with a group of people in advance and possession of a large amount of other people's property by reliable abuse. By the resolution of the Judicial Board of the Almaty Regional Court on criminal cases dated September 5, 2017, the sentence was changed, and in accordance with paragraph 2 of Part 1 of Article 4 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", half of the unserved part of the sentence (3 years 10 months 20 days) was reduced, and M. was sentenced to imprisonment for 1 year 11 months 10 days. Instead of Article 60 of the criminal code in the resolution part of the court sentence, Part 6 of Article 58 of the criminal code is applied. The rest of the sentence is left unchanged. The criminal activity of the convicted M. is fully substantiated by the answers of the victim E., witnesses T., zh. and S. in the course of the pre-trial investigation and the main trial, and by the materials of the criminal case.
The court correctly ranked the criminal activity of M. in Paragraph "B" of Part 3 of Article 177 of the criminal code. The court of first instance, when imposing a penalty on M., based on the requirements of Article 52 of the criminal code, took into account the nature and degree of public danger of his crime, personality, behavior before and after the crime, criminal liability and mitigating and aggravating circumstances, correctly assigned the punishment to him. However, during the consideration of this case, the court of Appeal allowed violations of the norms of criminal and criminal procedure laws. In particular, the court of Appeal, referring to Paragraph 2 of Part 1 of Article 1 of the amnesty law, illegally reduced half of the outstanding part of the sentence assigned to it (3 years 10 months 20 days). As it was established in the case, M. was previously released from serving a sentence in accordance with Article 12 of the law of the Republic of Kazakhstan dated February 19, 2002 "on amnesty in connection with the tenth anniversary of independence of the Republic of Kazakhstan" by the resolution of the Urdzhar District Court of East Kazakhstan region dated June 26, 2002. However, in accordance with paragraph 7 of Article 5 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", this law does not apply to persons who have previously applied amnesty or pardon, again committed a deliberate crime. In accordance with paragraph 20 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4" on some issues of imposing criminal penalties", property subject to confiscation must be clearly indicated in the resolution part of the sentence. Confiscation may be applied to property that is in the property of a convicted person, found by illegal means or sold for funds found by illegal means. Confiscation of property is not prescribed if the case does not contain information about the criminal nature of the origin of the property or the property is not established at all. From the materials of the criminal case, the property of the convicted M., found illegally or acquired at the expense of illegally discovered funds, was not found. At the same time, the property subject to confiscation is not specified in the resolution part of the sentence. In this regard, confiscation of property is subject to exclusion from the resolution part of the sentence, although it is mandatory to impose an additional penalty under Paragraph "B" of Part 3 of Article 177 of the criminal code (as amended in 1997). On the basis of the above, the Judicial Board of the Supreme Court of the Republic of Kazakhstan on criminal cases amended the decision of the court of Appeal in respect of M., applying paragraph 2 of Part 1 of Article 4 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", canceling the part of the reduction of half of the outstanding part of the sentence imposed. An additional punishment imposed by a court verdict - confiscation of property-is excluded. In accordance with Paragraph "B" of Part 3 of Article 177 of the criminal code (as amended in 1997), Part 6 of Article 58 of the criminal code was applied to M., who was sentenced to 5 years of imprisonment by partial addition of the sentence imposed by the sentence of February 29, 2016, and the remaining part of the court decision was left unchanged.
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