Forgery and production of official documents, namely identity cards out of self-interest, in the commission of a crime by a group of persons by prior agreement and fraud, that is, theft of other people's property by deception and abuse of trust on an especially large scale
By the verdict of the Karasai District Court of the Almaty region dated September 16, 2014, I. was sentenced under part 2 of Article 325 of the Criminal Code to 2 years in prison, under paragraph "b" of part 4 of Article 177 of the Criminal Code to 5 years in prison, on the basis of part 3 of Article 58 of the Criminal Code by absorbing a less severe punishment with a more severe one, finally to 5 years imprisonment, based on Article 63 of the Criminal Code, suspended, with a probation period of 3 years, with the establishment of probation control. Regarding the civil claims of the victims, G., T. and A., the case was discontinued due to the refusal of the civil plaintiffs from the claim. O. was convicted by the same verdict, but the case against him was not filed. By the verdict of the court, the convicted I. was found guilty of committing forgery and fabrication of official documents by a group of persons in prior agreement, namely identity cards out of self-interest, and of committing fraud by a group of persons in prior agreement with O., that is, theft of other people's property by deception and abuse of trust on an especially large scale. By the decision of the Appellate Judicial Board for Criminal Cases of the Almaty Regional Court dated November 10, 2014, the verdict against the convict was changed: Bulletin of the Supreme Court of the Republic of Kazakhstan No. 8/2015 34. Article 63 of the Criminal Code was abolished in respect of I. and the penalty was imposed in the form of imprisonment, with confiscation of property personally belonging to her. The term of serving the sentence is calculated from November 10, 2014. By the decision of the Cassation Judicial Board of the Almaty Regional Court dated February 17, 2015, court decisions were changed on the basis of Article 6 of the Criminal Code in connection with the amendment of the criminal law: the actions of convicted I. were reclassified from part 2 of Article 325 of the Criminal Code to part 2 of Article 385 of the Criminal Code, which imposed a sentence of 2 years of restriction of liberty. Based on part 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment with a more severe one imposed under paragraph "b" of part 4 of Article 177 of the Criminal Code, 5 years of imprisonment with confiscation of property personally belonging to her were finally determined to be served.
Forgery and production of official documents, namely identity cards out of self-interest, in the commission of a crime by a group of persons by prior agreement and fraud
The rest of the judicial acts remained unchanged. The Supervisory Judicial Board for Criminal Cases of the Supreme Court changed the decisions of the appellate and cassation judicial boards in respect of I. regarding the imposed punishment, while upholding the verdict of the court of first instance. I. was immediately released from prison, the petition of K.'s lawyer satisfied on the following grounds. Conclusions of the court on the guilt of convicted I. the charges of forgery and fabrication of official documents, theft of other people's property, by deception and abuse of trust on an especially large scale by a group of persons by prior agreement under the circumstances set out in the verdict are correct and based on evidence comprehensively and fully investigated during the main trial. It can be seen from the case materials that the convicted person in a group of persons committed several crimes by prior agreement, including the serious crime of fraud on an especially large scale, causing damage in the amount of 9,000,000 tenge. The fact that convicted I. committed crimes by the lawyer is not disputed. The evidence that formed the basis of the convict's accusation is given in detail by the court in the verdict. The convict's guilt is confirmed by her testimony, the testimony of the convicted O., the victims G., T., witnesses K., B., A., H., S., U., E., as well as the contract of sale of the house dated 02/01/2013, the receipt G. dated 02/21/2013, a copy of a forged certificate, protocols of seizure of documents, inspection of objects, confrontations, the search and other evidence examined during the main trial. In such circumstances, the actions of the convicted I. are correctly qualified under part 2 of Article 385, under paragraph "b" of part 4 of Article 177 of the Criminal Code. At the same time, the conclusions of the court of appeal regarding the amendment of the penalty and the imposition of punishment in the form of actual imprisonment are insufficiently substantiated. According to paragraph 9 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 1 dated April 30, 1999 "On the observance by courts of legality in the imposition of criminal punishment", courts must take into account that the suspended sentence provided for in Article 63 of the Criminal Code, as a rule, can be applied to persons who have committed crimes of minor or moderate severity, in the past not convicted. The application of a suspended sentence to individual participants in crimes of other gravity is allowed only in cases where the Bulletin of the Supreme Court of the Republic of Kazakhstan No. 8/2015 35 establishes the secondary role of these persons, as well as if the data characterizing the identity of the perpetrator and the circumstances under which the crime was committed give reason to consider it possible to apply the rules of Article 63 of the Criminal Code when sentencing. It should also be borne in mind that the criminal law does not link the application of a suspended sentence to the category of crimes, but only restricts the application of article 63 of the Criminal Code to persons whose actions are recognized as dangerous or especially dangerous recidivism. As can be seen from the case file, convict I. She received only $ 200 from the sale of the house, while sincerely admitting her guilt and repenting of what she had done, has a positive characteristic at her place of residence, voluntarily compensated for property damage, her personality does not pose an increased danger to society, her role in the crime is secondary, she has not previously been prosecuted, there are no aggravating circumstances..
Forgery and production of official documents, namely identity cards out of self-interest, in the commission of a crime by a group of persons by prior agreement and fraud
In connection with the above, the supervisory judicial board concluded that the courts of appeal and cassation instances had misapplied the criminal law, which resulted in the imposition of a punishment that did not correspond to the gravity of the crime committed, the consequences resulting from the commission of crimes, and, guided by the principles of proportionality of punishment to the committed act, the board considered it possible to apply a suspended sentence (Articles 63 of the Criminal Code), as sufficient for the restoration of social justice and the correction of the convict.
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