Fraud, that is, deception and abuse of trust
By the verdict of the District Court No. 2 of the ESIL District of the city of Nur-Sultan dated March 2, 2020: A. earlier, by the verdict of the District Court No. 2 of the Saryagash District of the South Kazakhstan region dated February 23, 2018, he was sentenced to 3 years in prison under Paragraph 1 of part three of Article 190 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), with the application of Article 63 of this code; -Sentenced to 4 years of imprisonment by paragraphs 1), 4) of the third part of Article 190 of the Criminal Code, to 5 years of imprisonment on the basis of the first part of Article 60 of this code, to serve his sentence in a maximum security institution of the Penal correction system. In accordance with paragraph 1 of Article 14 of the criminal code, recidivism of crimes is recognized in the actions of A. 2,900,000 tenge in favor of A. B., 800,000 tenge in favor of U., 2,187,000 tenge in favor of M. material costs, 58,870 tenge state duty on state income, 50,500 tenge forced payment to the Victims Compensation Fund of the Republic of Kazakhstan, 840 tenge 50 tiyn procedural costs in favor of the state.
Fraud, that is, deception and abuse of trust
By a court verdict, A. was found guilty of repeatedly embezzling other people's property in large quantities by fraud, that is, deception and abuse of trust. By the decision of the judicial board for criminal cases of the Nur-Sultan City Court of April 22, 2020, the court verdict was left unchanged. In the protest of the Acting Prosecutor General, the court amended the acts and, in the actions of A., in accordance with the first part of Article 14 of the Criminal Code, asked to cancel the part of recognition of the recidivism of crimes and, accordingly, to exclude the recidivism of crimes in accordance with Article 54 of the criminal code from the The differentiation and proof of the actions of the convicted person is not disputed. The fact that convicted A. committed a crime in the circumstances recorded in the court verdict is based on the evidence objectively studied at the court session and given an appropriate assessment and corresponds to the actual circumstances of the case. The court correctly differentiated the criminal activity of A. by paragraphs 1), 4) of the third part of Article 190 of the criminal code. However, the court, in the process of imposing a sentence, recognizes a dangerous repetition of a crime in the actions of a convicted person and establishes him serving his sentence in the highest institution of the Penal correction system, opposes the requirements of the law. In accordance with the first part of Article 14 of the criminal code, the commission of a serious crime by this person is recognized as a repetition of crimes if a person has previously been sentenced to imprisonment for committing a serious crime. As follows from the materials of the criminal case, A. by the verdict of the District Court No. 2 of the Saryagash District of the South Kazakhstan region dated February 23, 2018, was sentenced to probation for a period of 3 years under Paragraph 1) of part three of Article 190 of the criminal code. According to this sentence, a fraud on a large scale, that is, convicted of a crime of a serious category. "The law of the Republic of Kazakhstan dated July 12, 2018 ""on amendments and additions to some legislative acts of the Republic of Kazakhstan on the issues of improving criminal, Criminal Procedure legislation and the activities of law enforcement and special state bodies"", paragraph 38) of Article 3 of the Criminal Code of the Republic of Kazakhstan, was redrafted and entered into force on July 31, 2018." In accordance with paragraph 38 of Article 3 of the criminal code, in Article 190 of the criminal code, the value of property or damage exceeding one thousand times the monthly calculation index is recognized as large damage and large amount. In accordance with Article 11 of the law of the Republic of Kazakhstan" on the Republican budget for 2016-2018 " from January 1, 2016, the monthly calculation index is set at 2,121 tenge, that is, the amount exceeding 2,121,000 tenge is a large amount.
Fraud, that is, deception and abuse of trust
In this regard, in accordance with the first part of Article 6 of the Criminal Code, a law that eliminates the criminality or punishability of an act, mitigates the responsibility or punishment of a person who has committed a criminal offense, or otherwise improves the situation, has retroactive effect, that is, it applies to persons who have committed an appropriate act before the introduction of such a law, including those who are serving a sentence or have served a sentence, but have a criminal record. In accordance with paragraph 16 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2007 No. 8" on the application of laws on recidivism of crimes", if the defendant was convicted of a crime committed by him and has a criminal record that has not been removed and canceled, in case of transfer of crimes to the category of less serious crimes due to a change in the law, their category should be determined in accordance with Article 6 of the criminal code and taken into account when recognizing recidivism of crimes under the new law. Since, according to the verdict of February 23, 2018, the amount of criminal acts of A. does not reach 2,121,000 tenge, when recognizing the recidivism of crimes in his actions, it should not be taken into account as a crime of a serious category. "In accordance with paragraph 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 ""on some issues of imposition of criminal punishment"", it is stated that if the court establishes in the sentence the presence of circumstances not specified in the indictment, aggravating liability, it aggravates the situation of the defendant in accordance with the requirements of Article 340 of the criminal code and is a violation of the limits of judicial proceedings."
In the indictment in a criminal case, the recidivism of crimes is not indicated as an aggravating circumstance. However, the courts of the first and appellate instance, without taking into account the requirements of the mentioned law, unreasonably recognized the repetition of crimes in the actions of A. As a result, he incorrectly established the regime of a correctional institution of the penitentiary system to serve his sentence. At the same time, unjustifiably recognized the recidivism of crimes as circumstances aggravating criminal liability and punishment. Since there is no recidivism of crimes in the actions of the convicted person, in accordance with paragraph 2) of the fifth part of Article 46 of the criminal code A. he must serve his sentence in moderately safe institutions of the Penal correction system. Therefore, in accordance with paragraph 2) of part three of Article 62 of the criminal code, one day of detention before the entry into force of the sentence shall be counted for one and a half days of serving a sentence in a medium-security institution. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan amended the judicial acts of local courts in relation to the convicted A. and canceled the part of recognition of recidivism of crimes in accordance with the first part of Article 14 of the criminal code in the actions of A. In accordance with Article 54 of the criminal code, "recidivism of crimes" is excluded from the descriptive and motivational parts of judicial acts from the number of circumstances aggravating criminal liability and punishment. It is established to serve his sentence in a moderately safe institution of the Penal correction system. In accordance with paragraph 2) of the third part of Article 62 of the criminal code, one day of detention before the entry into force of the sentence of convicted A. shall be counted as one and a half days of serving the sentence in a medium-security institution. The remaining parts of the judicial acts were left unchanged. The protest of the Acting Prosecutor General of the Republic of Kazakhstan was satisfied.
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