Forced payment from the guilty party

When passing a guilty verdict on a set of criminal offenses, a compulsory payment corresponding to the category of the most serious criminal offense is collected from the guilty person by the Verdict of the Arshaly District Court of the Akmola region dated September 25, 2020: M., previously convicted under paragraphs 1), 2), 3) of part 3 of Article 188 of the Criminal Code of the Republic of Kazakhstan (hereinafter – CC) to 2 years and 8 months of imprisonment, - sentenced under paragraph 3) of part 4 of Article 188 of the Criminal Code to 5 years of imprisonment, part 3 of Article 24, under paragraphs 2), 3) of part 3 of Article 188 of the Criminal Code to 3 years of restriction of liberty, on the basis of part 6 of Article 58 of the Criminal Code by absorbing a less severe punishment with a more severe one to 5 years of imprisonment, on based on part 6 of Article 58 of the Criminal Code, by absorbing the less severe punishment imposed by the sentence of September 15, 2020, to a more severe one, finally to 5 years of imprisonment with serving the sentence in an institution of the medium-security penal system. The term of punishment is calculated from the date of entry into force of the sentence. The time of detention from February 28, 2020 to the entry into force of the sentence was calculated at the rate of one day of detention per one and a half days of imprisonment. A compulsory payment of 20 monthly calculation indices in the amount of 53,020 tenge was collected from M. to the Victims Compensation Fund. The fate of the physical evidence has been resolved. By the verdict of the court M. He was found guilty of theft committed in a group of persons by prior agreement, repeatedly, with illegal entry into a residential building, on an especially large scale, as well as attempted theft by a group of persons by prior agreement, repeatedly, with illegal entry into a residential building. By the decision of the judicial board for Criminal Cases of the Akmola Regional Court dated December 2, 2020, the verdict of the court remained unchanged. In the petition, the defense attorney is lawyer N. He asks to cancel the verdict, to terminate the case on the episodes of the victims due to lack of proof of guilt: T., K., Zh., on the episode of the victim S. – to apply Articles 63 of the Criminal Code in connection with the absence of damage. He provides the following arguments in support. There are no signatures of the investigator, specialist, verification and clarification of testimony on the spot in the protocols of the inspection of the scene - the names of the lawyer involved, the suspect, are incorrectly indicated. In the protocol of M.'s interrogation, the time of the investigative action was changed. M.'s guilt in committing crimes is confirmed by the evidence collected in the case. The court reliably established that M., acting in a group of persons by prior agreement, illegally entered the residential premises and committed the theft of J.'s property. in the amount of 5,839,000 tenge, K. – 30,000 tenge, T. - 2,182,000 tenge, as well as attempted theft of property of S. These circumstances are confirmed by M.'s testimony given during the main trial.

Forced payment from the guilty party

So, in court, M. testified that he was engaged in private transportation. An acquaintance named N. suggested that he travel to the village of Zhibek Zholy to commit thefts. Magzhan and an acquaintance of the latter named Ruslan went into the houses, he stayed outside. In one house, gold products and money were taken, in the second – a box with the Koran, which was left, in the third – 400 US dollars. When they tried to enter the fourth house, he was detained, the others ran away. M. gave these statements in court with the participation of his advocate advocate. According to three episodes of thefts of M. he turned himself in, which was written by him in his own hand, signed by the person who accepted it. In addition, M.'s testimony is consistent with other evidence. In particular, M., during interrogation on February 29, 2020, described in detail the circumstances of the thefts, which were not known. Namely, that they left the box with the Koran (episode of victim K.) on the ground near the house, and the metal safe (episode of victim T.) was thrown along the road. These circumstances were confirmed during further investigative actions. The victim K. During the interrogation on April 14, 2020, she testified that she had found the box on March 17. During an inspection conducted on April 12, 2020, the safe was found. N., questioned in the case, testified that he and M. had committed the thefts mentioned above. The fact of the thefts in a group of persons was established by the verdict of the district court No. 2 of the Saryarkinsky district of Nur-Sultan dated September 15, 2020, which entered into force against M.'s accomplices. Thus, M.'s confessions were confirmed by other evidence and, therefore, were reasonably recognized by the court as reliable. This set of evidence is sufficient to conclude that M.'s guilt has been proven. However, when collecting some factual data relevant to the case, which the court refers to in the verdict, the requirements of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) were violated. In accordance with part 7 of Article 199 of the CPC, the protocol is signed by the official who drafted it. This requirement of the law was violated during the inspection of the accident site (car) on February 28, 2020, the interrogation of victim K. on January 5, 2020, victim J. January 6, 2020. There are no signatures of the inquirer or investigator in the protocols.

In this regard, on the basis of paragraph 5 of part 1 of Article 112 of the CPC, the factual data obtained is subject to recognition as inadmissible as evidence, and the reference to the inspection report is excluded from the court verdict. At the same time, there are no grounds for recognizing the verification protocol and clarifying the testimony on the spot as inadmissible evidence due to the fact that lawyer B. is listed on the first page and lawyer E. on the last. Also on the first page, the suspect's details are listed as K. The court viewed the video recording of the investigative action, it was established that it was conducted with the actual participation of suspect M. and lawyer E. The latter signed the protocol, the contents of the protocol, the course and results of the investigative action are not disputed by them. For other violations identified that are not grounds for recognizing the factual data obtained as unacceptable (the absence of a signature from a forensic specialist, instructions to seal items during the inspection, and corrections to the beginning and end of the interrogation time), the court of appeal reasonably issued a private ruling. M.'s punishment was imposed taking into account the gravity of the crime and the personality of the convicted person, as required by article 52 of the Criminal Code. The presence of mitigating and non-aggravating circumstances of responsibility and punishment is taken into account. The rules of part 2 of Article 55 of the Criminal Code have been observed.

At the same time, the court made a mistake regarding the recovery of a compulsory payment from M. In accordance with part 2 of Article 10 of the Law of the Republic of Kazakhstan dated January 10, 2018 No. 131-VI SAM "On the Compensation Fund for Victims", in the event of a conviction against a guilty person on a set of criminal offenses, a compulsory payment corresponding to the category of the most serious criminal offense is collected from him. It follows from this rule that in the case of a combination of criminal offenses, including the application of part 6 of Article 58 of the Criminal Code, a single compulsory payment is collected, and repeated collection is unacceptable. This requirement is also fixed in paragraph 36-1 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 40 "On judicial sentence", according to which, when sentencing for a set of criminal offenses, according to the rules of part six of Article 58 of the Criminal Code, the court must decide to collect a single compulsory payment for two sentences. If, according to the first sentence, a person was convicted of the most serious criminal offense with the collection of a corresponding compulsory payment, then the compulsory payment is not collected again by the last sentence. By the verdict of September 15, 2020 with M. A compulsory payment in the amount of 20 monthly calculation indices was collected for a serious crime committed. Consequently, the compulsory payment was unlawfully collected again in the same amount by the appealed verdict. The Judicial Board for Criminal Cases of the Supreme Court annulled judicial acts of local courts in part and excluded the recovery from M. to the Compensation Fund for victims of forced payment in the amount of 53,020 tenge. She excluded from the verdict and court order a reference to the protocol of inspection of the scene of the accident – a car dated February 28, 2020, and declared inadmissible as evidence the factual data recorded in the protocols of inspection of the scene and interrogation of victim K. dated January 5, 2020, victim J. dated January 6, 2020. The rest of the judicial acts remained unchanged. The petition of the defender, lawyer N., was partially satisfied. 

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