Illegal entry into residential premises, open embezzlement of other people's property, as well as several times, having conspired with a group of people, illegally entering residential premises, using weapons or objects used as weapons
In connection with the failure to prove the guilt of the convicted person in committing this criminal offense in relation to the episode of robbery of the victim, the court of Cassation suspended the proceedings on the criminal case and changed the judicial acts of local courts in connection with the violation of the requirements of part two of Article 55 of the criminal code in the process of imposing a sentence by the verdict of the Specialized Interdistrict court for juvenile affairs of Mangistau region dated December 9, 2016 K. previously: 1) on January 27, 2015, under Paragraph "A" of the second part of Article 178 of the Criminal Code, he was sentenced to 3 years of imprisonment, on the basis of Article 63 of the Criminal Code, the punishment is considered conditional and a probationary period of 2 years is established; 2) on April 6, 2015, sentenced to restriction of freedom for 3 years under Paragraph "A" of Part 2 of Article 178 of the Criminal Code, - with confiscation of property by paragraphs 1), 4) of Part 2 of Article 191 of the Criminal Code, to imprisonment for 4 years, Part 2 of Article 192 of the Criminal Code 1), 2), 3), 4) on the basis of Part 3 of Article 58 of the Criminal Code, Property is confiscated and sentenced to 7 years of imprisonment by imposing a less severe punishment on the totality of crimes with a more severe punishment. In accordance with Article 64 of the criminal code, the suspended sentence imposed by the sentence of January 27, 2015 is canceled. In accordance with Article 60 of the criminal code, he is sentenced to 7 years and 6 months of imprisonment with confiscation of property with partial inclusion of the outstanding part of the sentences and deprivation of the right to hold a certain position or engage in a certain activity for life, serving the assigned sentence in a correctional colony of the general regime. In this sentence, convicted in K., S., K., etc., the petition against them is not filed.
Illegal entry into residential premises, open embezzlement of other people's property, as well as several times, having conspired with a group of people, illegally entering residential premises, using weapons or objects used as weapons
Convicted by a court verdict, A. is found guilty of illegal entry into a residential room, open embezzlement of other people's property, using force that is not dangerous to the life or health of the victim, or of threats of such force, as well as of several counts of conspiracy with a group of people, illegal entry into a residential room, using weapons or objects used as weapons, accompanied by the use of force dangerous to the life or health of a person subjected to an attack for the purpose of embezzlement of other people's property, or directly threatening the use of such force. By the resolution of the judicial board for criminal cases of the Mangistau Regional Court of February 2, 2017, the sentence was changed, and the words "to lose the right to hold a certain position or engage in a certain activity for life" were removed from the resolution part of the sentence in relation to A. Having heard the conclusion of the prosecutor on the need to amend the judicial acts and satisfy the petition of the convicted person, having studied the arguments presented in the petition of the convicted person and the materials of the criminal case, the judicial board considers that the judicial acts in relation to the convicted Person A. are subject to change on the basis of the following circumstances. Convicted A. in the case specified in the sentence, the victims B., A. A robbery attack against M., B. is proved by the evidence comprehensively studied and objectively evaluated in the main trial, in particular, the answer of the convicted person with a full confession of guilt in the main trial, the answers of the victims A., B., M., witness S., convicted persons K., U., K., T. and a set of written documents collected in the case: inspection of the crime scene, receipt of the evidence, The court gave an appropriate assessment of all evidence collected in accordance with the requirements of the law and their admissible receipt and accuracy on the basis of Article 125 of the CPC.
However, the arguments of the convicted A. about the non-commission of the crime in relation to the victim P. are justified. In accordance with Article 19 of the CPC, unresolved doubts about the guilt of the defendant are interpreted in his favor. In accordance with the requirement of Part 3 of Article 393 of the CPC, a guilty verdict cannot be based on assumptions, and it is issued only if the defendant's guilt in committing a criminal offense during the trial is confirmed by a set of evidence studied by the court. Similarly, in paragraph 12 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 4 "on some issues of evaluation of evidence in criminal cases", except for cases of consideration of the case in the abbreviated manner provided for in Article 382 of the CPC, if the verdict of the court is made only on the basis of evidence of the defendant and the victim that is not analyzed, , it is said that it cannot be recognized as legal. However, on the part of the court of first instance, the above requirements were not met at the required level. As it is established from the materials of the criminal case, the convicted A. during the pre-trial investigation of the crime against the victim P. and during the judicial investigation, he did not recognize his own involvement in this crime, he was at work on the day of the crime and had witnesses who testify his motives. Witness L. noted at the court session that he was working as a director in LLP "B", on May 10, 2016, the specified LLP was transferred to A. he indicated that he went to work for one day as a Porter, there was a freight forwarder and a driver with him, and on the day of his departure, he was filled with a plate for 8 hours. Witness R. said at the court session that he works as a driver in LLP "B", A. called among themselves "Kolya", came to work on May 10, 2016 at 08:00, loaded the car with Kolya, he himself, A. and the forwarder were in the car, about 11:00 he went to the first supermarket "O" and handed over the goods, then distributed the goods to other grocery stores, A. he showed that he was there that day and did not go anywhere. Witnesses showed that zh., R., F., Yu., O., R. and G. work as administrators in various stores, on May 10, 2016, the goods brought to them by "B" LLP were accepted by the store employees, but they did not know exactly from whom they received the goods, because at the moment these employees have quit, there are no audio and video recordings stored in the stores.
Illegal entry into residential premises, open embezzlement of other people's property, as well as several times, having conspired with a group of people, illegally entering residential premises, using weapons or objects used as weapons
In addition, the presence of convicted A. at work in LLP "B" on May 10, 2016 is confirmed by official documents issued by this place of work (statements, invoices). The victim, P., in his testimony as the first victim, showed that he could recognize the robber if he saw him, he was about 30-35 years old, tall, with a stocky body, and had sunglasses in his eyes. However, in the process of showing for recognition, the victim showed that P. recognized the convicted A. in the middle body and eyes. As it turned out from the case documents, at the time of the crime, the convicted A. The victim, P., who was 27 years old, in his testimony indicated that the age of the criminal was about 30-35 years with the draft. In such a situation, the claim that the victim P. recognized the convicted person without writing at the time of recognition is questionable. And in its decision of the court of appeal, the conclusion that the convicted A. was not at work on the same day, that is, on the day of the robbery of P., is confirmed by the testimony of the witness L. is not confirmed by the case materials, but is refuted, because according to the verdict, the witness indicated that the convicted at the main trial was at work on the same day. In accordance with paragraph 5 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated August 15, 2002 No. 19" on a court verdict", if the Court unconditionally determines the occurrence of a crime, its commission by the defendant, his guilt in committing a crime, his guilt confirmed by evidence collected in compliance with the requirements of the law, as well as the court, guided by the presumption of innocence,, The guilt of a person in committing a crime is recognized as proven only if he answers all the questions specified in Article 390 of the CPC.
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