If there is a circumstance mitigating criminal liability and punishment that is not provided for as a sign of a committed crime, and there are no aggravating circumstances, the term and amount of punishment for committing a serious crime may not exceed two thirds of the maximum term or amount of the most severe type of punishment.

By the verdict of the Medeu District Court of Almaty dated August 9, 2013, Zh., who had no previous criminal record, was sentenced under paragraph "b" of part 3 of Article 177 of the Criminal Code to 6 years in prison with confiscation of property, while serving his sentence in a correctional colony of general regime. By the verdict of the court of J. He was found guilty of embezzlement of other people's property by deception and abuse of trust, on a large scale, committed repeatedly. By the decision of the Appellate Judicial Board for Criminal Cases of the Almaty City Court dated October 7, 2013, the verdict of the court remained unchanged. By the decision of the Cassation judicial Board of the Almaty City Court dated June 23, 2014, the verdict of the court and the decision of the appellate instance remained unchanged. After listening to the statement of Prosecutor N., who supported the arguments of the protest, having studied the materials of the criminal case, having discussed the arguments contained in the protest, the judicial board considers that the protest should be satisfied on the following grounds. The court's conclusions on the guilt of convicted Zh. The charges against the commission of the alleged act are based on evidence comprehensively, fully and objectively examined at the court session and correspond to the actual circumstances of the case. The court has given the convicted person's actions a correct legal assessment. At the same time, the arguments of the protest about the incorrect imposition of punishment by the court are well-founded. As can be seen from the materials of the criminal case, at the time of sentencing, the convict had three young children: S., born on December 12, 1999, D., born on March 30, 2001, and A., born on July 26, 2013. In accordance with part 1 of Article 53 of the Criminal Code, both as amended in 1997 and as amended in 2014, the presence of minor children by the perpetrator is recognized as a circumstance mitigating criminal liability and punishment. But the courts of all instances did not recognize this mitigating circumstance in relation to the convicted person.

 If there is a circumstance mitigating criminal liability and punishment that is not provided for as a sign of a committed crime, and there are no aggravating circumstances, the term and amount of punishment for committing a serious crime may not exceed two thirds of the maximum term or amount of the most severe type of punishment.

The court did not establish any circumstances aggravating Zh.'s criminal liability and punishment. According to paragraph 2) of part 2 of Article 55 of the Criminal Code, as amended in 2014, if there is a circumstance mitigating criminal liability and punishment that is not provided for as a sign of a committed crime, and there are no aggravating circumstances, the term and amount of punishment for committing a serious crime 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 parts of the Criminal Code. The sanction of part 3 of Article 177 of the Criminal Code, as amended in 1997, provides for a penalty of imprisonment for a term of 3 to 7 years, two thirds of the maximum term is 4 years and 8 months. In such circumstances, the punishment in relation to the convicted Zh. may not exceed 4 years and 8 months of imprisonment. Serving a sentence to a convicted person in accordance with paragraph 2) Part 5 of Article 46 of the Criminal Code should be assigned to an institution of the medium-security penal system. In addition, according to part 1 of Article 48 of the Criminal Code, as amended in 2014, confiscation of property is the forced gratuitous seizure and conversion into State ownership of property owned by a convicted person, obtained by criminal means or acquired with funds obtained by criminal means.  According to part 1 of Article 6 of the Criminal Code, as amended in 2014, a law that eliminates the criminality or punishability of an act, mitigates responsibility or punishment, or otherwise improves the situation of a person who has committed a criminal offense is retroactive, that is, it applies to persons who committed the relevant act before the introduction of such a law, including persons who serving a sentence or those who have served a sentence but have a criminal record. Thus, in terms of the additional penalty imposed in the form of confiscation of property, judicial acts must be amended to apply confiscation not to all of the convicted person's property, but only to the property listed in article 48 of the Criminal Code. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in relation to Zh. and in accordance with paragraph 4) Part 1 of Article 53 of the Criminal Code recognized the mitigation of criminal liability and punishment of convicted Zh. the fact that he has young children. On the basis of part 1 of Article 6, paragraph 2) of part 2 of Article 55 of the Criminal Code, Zh. 4 years and 8 months of imprisonment with confiscation of property owned by the convicted person, obtained by criminal means or acquired with funds obtained by criminal means, with serving the sentence in an institution of the medium-security penal system. The rest of the judicial acts remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied. By the verdict of the specialized interdistrict criminal Court of the East Kazakhstan region dated October 18, 2016, I., who had no previous criminal record, was sentenced under part 3 of Article 24, part 1 of Article 99 of the Criminal Code to 8 years in prison to serve his sentence in a high-security penal colony. The sentence was calculated from July 4, 2016. The costs of the victim's medical treatment in the amount of 458 527 tenge and the state fee in the amount of 4,585 tenge were collected from the convicted I. to the state income. By the verdict of the court, I. was found guilty of attempted unlawful intentional infliction of death on the victim Zh. The verdict was upheld by the decision of the Judicial Board for Criminal Cases of the East Kazakhstan Regional Court of December 8, 2016. After hearing the statement of Prosecutor N., who supported the arguments of the protest, the opinion of lawyer M., who objected to his satisfaction, having studied the materials of the criminal case, having discussed the arguments of the protest, the judicial board considered the protest of the Prosecutor General of the Republic of Kazakhstan to be satisfied on the following grounds. The court of cassation, in accordance with paragraph 14 of Article 494 of the CPC, verifies the legality, validity and fairness of the court's verdict in full. The grounds for revoking or changing the sentence in cassation under paragraph 10 of Article 494 of the CPC are the circumstances specified in Article 433 of the CPC. In the present case, there are such grounds for changing the sentence. The court's conclusions do not correspond to the actual circumstances of the case, in addition, the criminal law was incorrectly applied by the court, and the actions of convicted I. constitute a more serious crime. The court of first instance, based on the evidence presented, reliably established that I., stabbing the sleeping Zh. with a knife in the chest area, acted with direct intent, wanting his death.

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