Found guilty of violation of the rules of road traffic, causing the death of a person in possession of a vehicle and negligence

By the verdict of the Kordai District Court of Zhambyl region dated November 8, 2018: y.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 the imposition of a final, less severe punishment on a more severe one, with the deprivation of the right to drive a vehicle for 5 years. To serve the sentence, a moderately secure institution of the penitentiary 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. The prosecutor general did not dispute the evidence of guilt and the qualification of the criminal act of zh., convicted under the third part of Article 345 of the criminal code in the protest, stating that the court violated the norms of the criminal law regarding the qualification of his actions, which caused the victim major damage by illegal possession of a vehicle without the purpose of embezzlement, in the appeal sent to the prosecutor general's office, the victim M. the expert auto inspection conducted in the case showed that he did not agree with the conclusion of the study, that he did not receive major damage in the amount of 6,750,000 tenge in the specified road accident, that 987,800 tenge was actually spent on the restoration of the bus, drew attention to the fact that zh. asked to re-qualify his actions with the first part of Article 200 of the criminal code, and asked to cancel the last part of the court sentence convicted with 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. As it was clearly established 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 of the state registration number 913CVB/ 13 "s" brand (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 highway "Almaty-Tashkent", without choosing a safe speed of movement of transport "I don't know," he said.

Found guilty of violation of the rules of road traffic, causing the death of a person in possession of a vehicle and negligence

As a result, the passengers on the bus E. died, and B. and K. were hospitalized with physical injuries of varying degrees.  The court correctly concluded that Zh. is guilty of committing a criminal act covered by the third part of Article 345 of the criminal code, conducting a comprehensive judicial investigation in compliance with the requirements of the law in 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, which does not raise any doubts in terms of consistency. The guilt of G in the commission of this criminal offense, along with his answers with a full confession of his guilt in this crime, is fully determined by the answers of the victims M. And A, B. and K, a number of witnesses, as well as the Protocols of inspection of the scene of the accident, vehicle inspection, conclusions of forensic medical examination and other irrefutable evidence studied during 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 differentiated 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's 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, confirmed that he did not allow zh to drive the bus, that he secretly drove the bus and committed a traffic accident, but did not make any material claims to him. 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 about the differentiation of the actions of zh. by 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 for 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. Victim M. in the case, zh. did not make a civil claim to recover the damage caused to him, and in his answers he confirmed that he did not make any material claim to him, that is, there is no property damage in the case. 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, 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 fact that there is no need to re-examine the evidence, considered it necessary to make a specific decision and re-qualify his criminal offense act with the first part of Article 200 of the criminal code, without referring the criminal case against zh. Victim M. in the case, zh. did not make a civil claim to recover the damage caused to him, and in his answers he confirmed that he did not make any material claim to him, that is, there is no property damage in the case. In this case, in accordance with paragraph 1) of the first part of Article 55 of the Criminal Code of the Republic of Kazakhstan, since the penalty of imprisonment under the first part of Article 200 of this code is not subject to imposition, the judicial board considers it advisable to impose a penalty 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 respect of the convicted zh., the criminal offense act of zh. under the third part of Article 200 of the criminal code was again differentiated by 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 Victim Compensation Fund 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. 

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