Found guilty of illegal possession of a vehicle without the purpose of embezzlement, causing major damage and violation of traffic rules that led to the death of a person by negligence

           By the verdict of the Kordai District Court of Zhambyl region dated November 8, 2018: previously convicted, sentenced to imprisonment for 2 years and 6 months with deprivation of the right to drive a vehicle for 5 years with the third part of Article 200 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), 5 years with the third part of Article 345 of this code.  On the basis of the third part of Article 58 of the criminal code, zh. was sentenced to 5 years of imprisonment with a 5-year deprivation of the right to drive a vehicle, with the transfer of the final less severe punishment to a more severe one. To serve the sentence, a moderately safe institution of the Penal correction system is established. By the verdict of the court, zh.was found guilty of illegal possession of a vehicle without the purpose of embezzlement, causing major damage and violation of the rules of road traffic, which led to the death of a person by negligence. The criminal case was not considered on appeal. In his protest, the prosecutor general did not dispute the proof of guilt and the qualification of the criminal act of the convicted zh. under the third part of Article 345 of the criminal code, noting that the court violated the norms of criminal law regarding the qualification of his actions, which caused significant damage to the victim by illegal possession of a vehicle without the purpose of embezzlement. Victim M. in his application sent to the prosecutor general's office, he stated that he did not agree with the conclusion of the expert auto survey conducted in the case, that he did not receive major damage in the amount of 6,750,000 tenge from this accident, that he spent 987,800 tenge on the restoration of his bus, he asked to re – qualify the actions of zh. to the first part of Article 200 of the Criminal Code, and asked to cancel the last part of the court's sentence convicted by the third part of Article 200 of the Criminal Code and send the criminal case for consideration in the same court, in a different composition.

Found guilty of illegal possession of a vehicle without the purpose of embezzlement, causing major damage and violation of traffic rules that led to the death of a person by negligence

As clearly defined from the case materials G. On July 1, 2018, at about 19:00, from the "all-trade" market located in Almaty region, the victim M. boarded a bus with state registration number 913CVB/13 "Setra Kaessbohrer" (hereinafter referred to as the bus) and drove it into illegal possession without the purpose of embezzlement, in gross violation of the requirements of paragraph 10.1 of the traffic rules of the Republic of Kazakhstan on the 194th km of the "Almaty-Tashkent" highway, without choosing a safe driving speed "I don't know," he said, " but I don't know." As a result, the passengers of the bus E. died, and B. and K. were hospitalized with injuries of varying degrees.  The court conducted a comprehensive judicial investigation in compliance with the requirements of the law on the case, based on a set of factual evidence collected by the pre-trial investigation body and studied directly at the court session, objectively evaluated, without any doubts in terms of consistency, correctly concluded that Zh. is guilty of committing a criminal act covered by the third part of Article 345 of the criminal code. The guilt of zh. in committing this criminal offense, along with his answers with a full confession of his guilt in this crime, is fully determined by the answers of a number of witnesses of the victims M., A., B., K., as well as the Protocols of inspection of the scene of the accident, inspection of the vehicle, with the attachment of drawings and photos of the accident, the conclusions of the forensic examination and other irrefutable evidence studied in the main trial. In accordance with the requirements established by Article 125 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code), the court gave a reasonable assessment of each of the evidence in terms of their relevance, admissibility, reliability, and sufficiency to resolve a criminal case. In such a context of the case, a reasonable assessment from the point of view of the law is given of the criminal offense act of zh., which is correctly ranked by the third part of Article 345 of the criminal code. The proof of his guilt and the differentiation of his actions on this criminal offense are not disputed in the protest. And in relation to the part of the court verdict to find zh guilty by the third part of Article 200 of the criminal code, the victim M. in his response at the main trial, zh. affirmed that he did not allow driving a bus, that he secretly drove a bus and committed a traffic accident, but did not make any material claims to it.  Zh. himself also did not deny that this bus was secretly driven by the victim without the permission of M. in the circumstances set out in the sentence. In addition, his guilt in committing this criminal offense is fully confirmed by the convincing evidence accumulated in the case. According to the results of the forensic examination of motor vehicles dated August 17, 2018 No. 889, conducted during the pre-trial investigation, it was established that the market value of a technically serviceable bus belonging to the victim M. is 6,750,000 tenge.

In accordance with the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005 No. 1" on the consideration of a civil claim in criminal proceedings", it is specified that the court, if necessary, determines the amount of damage caused as a result of theft, damage or destruction of property on the basis of an expert opinion or information from specialists or a commission appointed by the court for this purpose. However, either the pre-trial investigation body or the court of first instance did not determine the restoration of the bus and its lost commodity value, that is, the amount of actual material damage caused to the victim in the case. He did not appoint a proper examination to determine it. On the contrary, based on the market value of a technically serviceable bus, which was determined by the above-mentioned expert opinion, in the amount of 6,750,000 Tenge, the court made an erroneous conclusion to rank the actions of zh. in the third part of Article 200 of the criminal code. The first part of Article 19 of the Criminal Code states that a person is subject to criminal liability only for socially dangerous actions in which his guilt is established and the occurrence of its socially dangerous consequences, that is, a person must be responsible only for his specific socially dangerous actions. In the certificate of IP "A", which does not raise any doubts, attached to the application of the victim M. to the prosecutor general's office, it is indicated that the cost of restoring his bus is 987,700 tenge. Criminal liability under the third part of Article 200 of the criminal code arises only in the case of illegal possession of a vehicle without the purpose of embezzlement with causing major damage, and major damage is considered to be damage caused to a citizen in the amount exceeding one thousand times the monthly calculation index in accordance with paragraph 3) of Article 38 of this code. The actual amount of material damage caused to the victim M. by the act of a criminal offense of zh. does not exceed this indicator (2,405 tenge x 1,000 MCI = 2,405,000 tenge). In this context of the case, the judicial board, due to the lack of the need to re-examine the evidence, considered it necessary not to refer the criminal case against zh to a new court for consideration, but to make a specific decision and re-qualify his criminal offense for the first part of Article 200 of the criminal code. The victim M. did not file a civil claim for the recovery of damage caused to him from zh. in the case, and in his responses confirmed that he did not file any material claim against him, that is, there is no property damage in the case.

In such a case, since in accordance with paragraph 1) of the first part of Article 55 of the criminal code, Zh. is not subject to the imposition of a sentence of imprisonment under the first part of Article 200 of this code, the judicial board considers it appropriate to impose a sentence of restriction of Liberty on him. Since the final punishment is subject to assignment on the basis of part two of Article 58 of the criminal code, in accordance with paragraph 1) of part five of Article 46 of this code, a low-security institution of the Penal correction system should be established for serving the sentence. Since both criminal offenses recognized as guilty of zh.belong to the category of less serious crimes in accordance with the second part of Article 11 of the criminal code, the amount of forced payment to the compensation fund for victims from it should be reduced to ten monthly calculation indices, i.e. 24,050 tenge. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan changed the verdict of the court of first instance in relation to the convicted zh. under the third part of Article 200 of the criminal code, the act of a criminal offense was again differentiated into the first part of Article 200 of the criminal code, under this article he was sentenced to 1 year of restriction of Liberty. The part of the sentence to find zh guilty by the third part of Article 345 of the criminal code and impose a penalty on it is left in force. On the basis of the second part of Article 58 of the criminal code, zh. was sentenced to 2 years and 6 months of imprisonment with the deprivation of the right to drive a vehicle for 5 years by absorbing the final less severe punishment into a more severe one. To serve the sentence, zh.was assigned a low-security institution of the penitentiary system. The amount of forced payment to the victims compensation fund from zh.was reduced to ten monthly calculation indices – 24,050 tenge. The remaining parts of the court's verdict were left unchanged. The protest of the prosecutor general of the Republic of Kazakhstan was partially satisfied. 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases