If the court does not indicate in the evidential part of the sentence the decision to recognize the appropriate type of recidivism of the crime in the actions of the defendant in the resolution part of the sentence, giving grounds for recognizing the recidivism of the crime, then it is necessary to consider that the court did not recognize the recidivism of the crime by this sentence

By the verdict of the Mugalzhar District Court of Aktobe region dated December 22, 2016, A. previously sentenced to: 1) 3 years of imprisonment under Part 3 of Article 257 of the criminal code on December 19, 2000; 2) 9 years of imprisonment under Part 3 of Article 103 of the criminal code on February 16, 2004.  3) on June 17,2009, with the application of Article 60 of the criminal code by paragraphs "a, B" of Part 2 of Article 188 of the criminal code, sentenced to 8 years in prison, and on June 30, 2015, on the basis of Article 72 of the criminal code, released on parole from serving a sentence of 1 year 8 months 28 days. -Under Paragraph 1 of Part 2 of Article 106 of the Criminal Code, 8 years of imprisonment are established, on the basis of Article 60 of the criminal code, the sentence of June 17, 2009 is finally sentenced to 9 years of imprisonment by partial addition of the unserved part of the sentence, serving a sentence in a correctional colony of a special regime. By the verdict of the court, the victims of A. K. and N. were found guilty of intentional infliction of serious harm to their health.  By the resolution of the judicial board for criminal cases of the Aktobe Regional Court of February 23, 2017, the verdict was changed: convicted A. is prescribed to serve a sentence in a general regime correctional colony. The rest of the sentence is left unchanged. Defense lawyer T. supported the petition of the convicted person, heard the opinions of the prosecutor P., applying to the convicted person paragraph 2) of Part 2 of Article 55 of the criminal code and Part 1 of Article 60 of the Criminal Code, asked for a final sentence of 7 years and 8 months, got acquainted with the materials of the criminal case, studied the arguments in the petition, the judicial board came to the following decision.  On the basis of the provisions of the Constitution of the Republic of Kazakhstan, everyone is equal before the law and the court, until the guilt of a person is recognized by a court verdict that has entered into legal force, he is considered not guilty of a crime committed. The court of first instance undoubtedly determined the criminal behavior of the convicted person by the evidence collected in the case and studied in the main trial in detail, fully, objectively evaluated and studied.

If the court does not indicate in the evidential part of the sentence the decision to recognize the appropriate type of recidivism of the crime in the actions of the defendant in the resolution part of the sentence, giving grounds for recognizing the recidivism of the crime, then it is necessary to consider that the court did not recognize the recidivism of the crime by this sentence

According to the evidence collected and studied in the case, there was a fight between the convicted A. and the victim N. while drinking, as a result of a head feud, the convicted A. beat the victims K. and N. in the abdomen with a kitchen knife, inflicted severe physical injuries on them and left the scene.  The guilt of the convicted A. in the main trial with a response that fully recognized his guilt, the victims K. and N., witnesses G., G. and fully approved by the answers of zh., protocols of inspection of the scene, receipt of evidence, conclusions of forensic medical examinations, as well as other evidence accumulated in the case. The court of first instance correctly assessed the accumulated evidence in the context of the law and correctly ranked the criminal behavior of the convicted A. By Paragraph 1 of Part 2 of Article 106 of the criminal code. As it was established in the case, the court of first instance, when imposing a sentence on A., recognized his full confession of guilt as circumstances mitigating criminal liability and punishment, sincere remorse for his actions, as well as dangerous repetition of crimes as circumstances aggravating the responsibility of the convicted A. At the same time, in the descriptive and motivational part of the sentence, it is indicated that A. is subject to recognition of a dangerous repetition of a crime in accordance with paragraph 1 of Part 2 of Article 14 of the criminal code in his actions, having previously been sentenced to twice imprisonment for committing a serious crime.

However, in the resolution part of the sentence, no decision was made on the recognition of a dangerous repetition of a crime. Paragraph 2 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 by courts "States:" if the court does not specify the decision on the recognition of the appropriate type of recidivism in the actions of the defendant in the resolution part of the sentence, giving grounds for recognition of recidivism of crimes in the evidential part of the sentence, then it is necessary to consider that the court did not recognize the recidivism of crimes by this sentence." The court of first instance, when considering this case, allowed a violation of the requirements of the above-mentioned norms of the law and did not indicate a dangerous recidivism of the crime in the resolution part of the sentence, that is, it did not recognize a recidivism of the crime in accordance with the law. And the appellate judicial board, having identified this flaw, changed the sentence only in terms of serving the sentence in a correctional colony of the general regime. Consequently, the non-recognition of a dangerous repetition of a crime in accordance with the requirements of the above-mentioned norms of the law indicates the absence of circumstances aggravating criminal liability and punishment in the actions of convicted A. Also, in accordance with Part 4 of Article 11 of the Criminal Code, criminal acts committed by A. belong to the category of serious crimes. When committing a serious crime in accordance with paragraph 2) of Part 2 of Article 55 of the criminal code, in the presence of mitigating circumstances that are not provided for as a sign of a committed crime and in the absence of aggravating circumstances, the term or amount of punishment may not exceed two-thirds of the maximum term or amount of the most severe type of punishment provided for in the relevant article of the special part of this code.  Convicted A. in the sanction of Paragraph 1) of Part 2 of Article 106 of the Criminal Code, which is found guilty, the maximum term of punishment is imprisonment for up to 10 years. Therefore, the term of punishment imposed on convicted A. By Paragraph 1) of Part 2 of Article 106 of the criminal code should not exceed 6 years and 8 months in accordance with paragraph 2) of Part 2 of Article 55 of the criminal code. 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 relation to the convicted A. and excluded from the actions of A. a dangerous repetition of a crime, indicated as a circumstance aggravating criminal liability and punishment. The term of punishment imposed on convicted A. By Paragraph 1) of Part 2 of Article 106 of the criminal code is applied to Paragraph 2) of Part 2 of Article 55 of the criminal code and reduced to 6 years and 8 months. The sentence imposed on the basis of Part 1 of Article 60 of the criminal code was imposed by a court verdict of June 17, 2009 with partial inclusion of the unserved part of the sentence, with a final sentence of 7 years and 8 months in prison. The rest of the judicial acts were left unchanged, and the petition letter of convicted A. was partially satisfied. 

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