Found guilty of fraudulent embezzlement, possession and fraud of the victim's property by abuse of trust
By the verdict of the Mugalzhar District Court of March 6, 2017, left unchanged by the resolution of the judicial board for criminal cases of the Aktobe Regional Court of May 3, 2017: S. previously not convicted, with confiscation of property by Paragraph 2) of Part 4 of Article 189 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), with deprivation of the right to engage in activities related to material liability for life, with imprisonment for 8 years, with imprisonment for 4 years by paragraph 1) of Part 3 of Article 190, 58 – sentenced to 8 years in prison in accordance with Part 3 of Article. The sentence is prescribed to be served in a moderately safe institution of the Penal correction system. By the resolution of the Mugalzhar District Court of Aktobe region dated June 5, 2017, in the descriptive, motivational and review parts of the sentence against S. in accordance with Part 3 of Article 58 of the criminal code, the final punishment should be imposed with the imposition of a less severe punishment with a more severe punishment, confiscation of property and deprivation of the right to engage in activities related to material liability for 8 years of imprisonment, the sentence should be established in a moderately safe institution of the Penal correction system; R. previously convicted, sentenced to 7 years in prison with confiscation of property under Paragraph 2) of Part 4 of Article 189 of the criminal code and deprivation of the right to engage in activities related to material liability for life. He is assigned to serve his sentence in a medium-safe institution of the Penal correction system.
Found guilty of fraudulent embezzlement, possession and fraud of the victim's property by abuse of trust
By the verdict of the court, S. and R. (hereinafter referred to as the convicted persons) were found guilty of conspiracy with a group of persons in advance, appropriation of other people's property entrusted to them, looting, embezzlement of particularly large amounts, as well as fraud, embezzlement, appropriation and fraud of 9 victims ' property by misuse of S. Trust. The guilty persons of the convicted persons are presented with their answers in the main trial, in which they admit their guilt, the victims are H., D., Sh., M. and so on, fully substantiated by the answers of witnesses, Pages, searches, receipt of physical evidence, protocols of their examination, forensic expert opinion, as well as other case documents. The actions of S. and R. are correctly differentiated by Paragraph 2) of Part 4 of Article 189 of the criminal code, as well as by paragraph 1) of Part 3 of Article 190 of the criminal code. When imposing sentences on convicted persons, guided by the requirements of Article 52 of the criminal code, the court correctly assigned the main punishment within the framework of the law, taking into account the nature and degree of public danger of their crimes, their identity, liability and mitigating circumstances. However, the additional punishment provided for by the sanction of Part 4 of Article 189 of the criminal code for convicts was incorrectly assigned. In accordance with the requirements of Article 50 of the criminal code, the penalty for life deprivation of the right to hold a certain position or engage in a certain activity should be imposed only for crimes of a certain category, in particular, corruption crimes, a certain category of economic crimes, as well as crimes against the sexual inviolability of minors and adolescents. Criminal offenses committed by convicted persons do not belong to the categories of this crime, therefore, depriving them of the right to engage in activities related to material liability for life is contrary to the requirement of the law. At the same time, considering that the deprivation of the right to hold a certain position or engage in a certain activity provided for in Part 2 of Article 50 of the criminal code is established only for a period of one to ten years, lower courts should be guided by the general rules for imposing a penalty when determining the conditions and procedure for imposing this additional penalty.
Therefore, the Judicial Board of Cassation, guided by the requirements of this law, considers it necessary to amend judicial acts and impose an additional penalty of ten years of deprivation of the right to engage in activities related to material liability for convicted persons. In addition, the court of first instance, when imposing a penalty on S., in accordance with Part 3 of Article 58 of the Criminal Code, decided to impose a final penalty on him with full inclusion, but on the contrary, the final penalty was imposed by absorbing a less severe punishment into a more severe one. The court of Appeal promptly corrected this contradiction of the lower court, did not bring it into line with the requirements of the law, and left the court's verdict against S. unchanged. After the sentence entered into legal force, the court of first instance, in its ruling of June 5, 2017, clarified that the final sentence imposed on S. was imposed by absorbing the less severe punishment into a more severe one. This decision of the court of first instance is also illegal, since it does not belong to the number of issues related to the interpretation of doubts and ambiguities of any kind that arose during the execution of the sentence in accordance with the requirement of Article 476 of the CPC. Therefore, this decree is subject to cancellation, and the main punishment assigned to S., in accordance with the requirements of the law, for final repayment, is subject to appointment on the basis of Part 3 of Article 58 of the criminal code by absorbing a less severe punishment into a more severe punishment. During the pre-trial investigation, the presence of property in the property of convicted persons, found by criminal means or acquired with funds found by criminal means, was not established. According to the requirements of Article 48 of the Criminal Code, confiscation of property is the compulsory gratuitous seizure and conversion into the property of the state of property owned by a convicted person, acquired with funds found by criminal means or found by criminal means. In accordance with the requirement of Paragraph 20 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 20, 2015 No. 4" on some issues of imposing criminal penalties", confiscation may be applied only to property owned by a convicted person and (or) third parties, illegally found or sold for funds illegally found. 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, confiscation of property is not appointed, including under the articles of the special part of the Criminal Code, which provides for the mandatory appointment of this type of additional punishment. The decision taken by the court to confiscate property must be motivated in all cases, referring to the presence or absence of grounds provided for in Article 48 of the criminal code in the sentence. Therefore, convicted persons are not subject to mandatory additional punishment in the form of confiscation of property. On the basis of the above, the Judicial Board of the Supreme Court of the Republic of Kazakhstan on criminal cases amended the judicial acts of local courts in respect of convicted S. and R., and approved the judicial acts of the Supreme Court of the Republic of Kazakhstan. cancellation of the decision of the Mugalzhar District Court of Aktobe region dated June 05, 2017 on the appointment of an additional sentence of life deprivation of the right to engage in activities related to material liability assigned to R., on the explanation of the parts of the assignment of penalties on the basis of Part 3 of Article 58 of the Criminal Code for final "no," he said., Depriving S. and R. of the right to engage in activities related to material liability for 10 years, canceling the additional punishment for confiscation of property assigned to them, leaving the remaining parts of the judicial acts unchanged.
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