Imposition of punishment Unjustified recognition of an aggravating circumstance influenced the imposition of a fair punishment

By the verdict of the specialized interdistrict Criminal Court of Almaty dated June 30, 2011, U., who had no previous criminal record, was sentenced under part 1 of Article 96 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 13 years in prison, under paragraph "b" of part 2 of Article 175 of the Criminal Code to 3 years in prison with confiscation of property. Based on part 3 of Article 58 of the Criminal Code, by partially adding up the imposed punishments, 14 years of imprisonment with confiscation of property, with serving the sentence in a high-security penal colony, were finally appointed for serving. The convict's sentence has been calculated since April 5, 2011. Material damage was recovered from the convicted U. in favor of the victims: Sh. - 210,000 tenge, A. - 2,045,476 tenge. A state duty in the amount of 22,555 tenge was collected from the convicted U. to the state revenue. By the verdict of the court, U. was found guilty of committing murder, that is, unlawfully intentionally causing the death of A., as well as repeated secret theft of other people's property. The case was not considered on appeal. In the petition, the convicted U., without disputing the evidence of guilt and the qualification of his actions, indicates that the court in the verdict unlawfully recognized as an aggravating circumstance the fact that the crime caused grave consequences in the form of human death. He is motivated by the fact that this circumstance is a qualifying feature of part 1 of Article 96 of the Criminal Code and cannot be re-considered as an aggravating circumstance. Taking into account the presence of mitigating circumstances and the absence of aggravating circumstances provided for in Article 54 of the Criminal Code, he requests a review of the judicial act.

Imposition of punishment Unjustified recognition of an aggravating circumstance influenced the imposition of a fair punishment

The court's conclusions on the proven guilt of the convicted person in the commission of criminal acts for which he was convicted, in the circumstances set out in the verdict, are based on evidence comprehensively, fully and objectively examined at the court session, correspond to the actual circumstances of the case and are not disputed by the convicts themselves. The evidence confirming the convict's guilt has been obtained in accordance with the procedure established by the Criminal Procedure Law, is reliable, acceptable and collectively sufficient to resolve the criminal case. The verdict gives them a proper assessment. The qualification of U.'s actions in the court verdict corresponds to the actual circumstances of the case. At the same time, the arguments of the convicted person's petition for the unlawful recognition of the fact that the crime caused grave consequences in the form of human death as an aggravating circumstance and punishment are well-founded. In accordance with part 3 of Article 52 of the Criminal Code, circumstances mitigating and aggravating responsibility and punishment, along with other information about the identity and behavior of the perpetrator, are taken into account when sentencing. The list of circumstances aggravating criminal liability and punishment is fixed in part 1 of Article 54 of the Criminal Code and is exhaustive. The second part of the said article prescribes that if the circumstance listed in the said list is provided for by the relevant article of the Special Part of the Criminal Code as a sign of a criminal offense, it cannot be re-considered as a circumstance aggravating responsibility and punishment. Motivating the conclusions in the verdict about the circumstances affecting the punishment, the court indicated that it takes into account the convicted person's admission of guilt and the fact that U. had not previously been brought to criminal responsibility as mitigating circumstances and punishment. At the same time, as a circumstance aggravating responsibility and punishment, the court recognized the infliction of serious consequences in the form of death by a crime. Meanwhile, the grave consequences of a person's death in the commission of premeditated murder, for which U. was convicted, are an element of the objective side of the composition of this criminal offense and therefore cannot be taken into account as a circumstance aggravating responsibility and punishment. The unjustified recognition of an aggravating circumstance influenced the appointment of a fair punishment for U., and its presence in the court verdict, along with a set of mitigating circumstances, prevents the application of Article 6 of the Criminal Code on the retroactive effect of the criminal law to the actions of the convicted.

Thus, according to paragraphs 1, 3 of part 2 of Article 55 of the Criminal Code, in the presence of a mitigating circumstance that is not provided for as a sign of a committed crime, and in the absence of aggravating circumstances, the term or amount of punishment for committing a medium-gravity crime may not exceed half, and in the case of a particularly serious crime may not exceed three quarters of the maximum term or amount of the most severe the type of punishment provided for in the relevant article of the Special Part of the Criminal Code. Part 1 of Article 96 of the Criminal Code provides for punishment in the form of imprisonment for a period of six to fifteen years. Paragraph "b" of part 2 of Article 175 of the Criminal Code provides for a penalty of up to five years in prison. The court sentenced the convicted person under part 1 of Article 96 of the Criminal Code to 13 years in prison, i.e. more than three quarters of the maximum term, under paragraph "b" of part 2 of Article 175 of the Criminal Code - to 3 years in prison, i.e. more than half of the maximum term of imprisonment provided for by the sanction of the article. The court's violation of the requirements of the law when imposing punishment, which resulted in the unlawful recognition of a circumstance aggravating responsibility and punishment, deprived convicted U. of the right to review the punishment in accordance with Article 6 of the Criminal Code, taking into account the requirements of paragraphs 1,3 of part 2 of Article 55 of the Criminal Code and worsened his situation. Based on the above, the collegium excludes the circumstance of "causing grave consequences in the form of human death" recognized by the court verdict as aggravating responsibility and punishment.

In addition, due to the introduction of a new criminal law on January 1, 2015, in accordance with the requirements of Article 6 of the Criminal Code, the appointed U. The penalty is subject to reduction according to the rules provided for in paragraphs 1,3 of part 2 of Article 55 of the Criminal Code. Based on the above, the judicial Board for Criminal Cases of the Supreme Court changed the verdict of the court of first instance against U. and excluded from the verdict the aggravating circumstance of responsibility and punishment - "the infliction of grave consequences by a crime in the form of human death." In accordance with paragraph 1.3 of part 2 of Article 55 of the Criminal Code, the sentence imposed on convicted U. was reduced: under part 1 of Article 96 of the Criminal Code - to 11 years and 3 months in prison, under paragraph "b" of part 2 of Article 175 of the Criminal Code - to 2 years and 6 months in prison. The imposition of additional punishment in the form of confiscation of property under paragraph "b" of part 2 of Article 175 of the Criminal Code has been abolished. On the basis of part 3 of Article 58 of the Criminal Code, by way of partial addition of punishments, U. was finally appointed. to serve 12 years and 6 months of imprisonment to be served in an institution of the maximum security penal system. In the rest of the sentence of the court was left unchanged, the petition of the convicted U. satisfied. 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases