Imprisonment with confiscation of property
By the verdict of the specialized interdistrict Criminal Court of the Mangystau region dated October 29, 2013: G., who had no previous criminal record, was sentenced under paragraphs "a, b" of part 3 of Article 259 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 13 years in prison with confiscation of property, while serving his sentence in a high–security penal colony. The term of G.'s punishment was calculated from April 26, 2013. In accordance with paragraph "d" of part 1 of Article 88 of the Criminal Code, compulsory drug addiction treatment was prescribed at the place of serving the sentence. B., previously convicted: 1) on January 28, 2003, under paragraph "a" of part 2 of Article 257 of the Criminal Code, to 2 years of imprisonment with the application of Article 63 of the Criminal Code on probation for 1 year. By a court decision of September 16, 2003, the case was sent for additional investigation; 2) on January 16, 2004, under part 3 of Article 103, under paragraph "a" of part 2 of Article 257, under part 3 of Article 58 of the Criminal Code, to 7 years in prison; 3) on March 12, 2007, under Article 360 of the Criminal Code, to one According to article 60 of the Criminal Code, the unserved part of the sentence of January 16, 2004 was added.; He was finally sentenced to 3 years and 8 months in prison, and was sentenced under paragraphs "a, b" of part 3 of Article 259 of the Criminal Code to 12 years in prison with confiscation of property, while serving his sentence in a high-security penal colony.
Imprisonment with confiscation of property
B.'s sentence was calculated from April 21, 2013. The same verdict convicted M., in respect of whom a petition for judicial review has not been filed. By the verdict of the court, G., B., M. were found guilty of the illegal acquisition and possession of the narcotic drug "heroin" on an especially large scale, by prior agreement of a group of persons. By the decision of the Appellate Judicial Board for criminal cases of the Mangystau Regional Court of December 19, 2013, the verdict against G., B., M. was upheld. By the decision of the cassation judicial board of the Mangystau Regional Court dated March 5, 2014, the judicial acts against G. were left unchanged. In the submission, the Chairman of the Supreme Court of the Republic of Kazakhstan indicates that judicial acts are subject to change in connection with the improper application of criminal law, which led to the incorrect imposition of punishment on convicted G. Motivates his arguments by the fact that the court, when imposing punishment, did not establish mitigating and aggravating circumstances of the convicted; At the same time, he did not take into account the circumstances of being dependent on K.'s young daughter, born on June 29, 2012, as a mitigating punishment. On these grounds, he considers that the judicial acts against G. are subject to change with a reduction in punishment based on paragraph 3 of part 2 of Article 55 of the Criminal Code. In relation to B., the judicial board is considering the case in accordance with part 18 of Article 494 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC). In accordance with part 18 of Article 494 of the CPC, upon the proposal of the Chairman of the Supreme Court of the Republic of Kazakhstan, the cassation instance, based on the materials available in the case and additionally submitted by the parties, fully verifies the correctness of establishing the factual circumstances of the case and the application of the criminal law, compliance with the norms of the criminal procedure law during the proceedings, the legality and validity of the verdict or decision of the court of first instance, appellate and cassation instances. The court's conclusions on the proven guilt of the convicted persons in the incriminated act under the circumstances set out in the verdict are based on evidence comprehensively, fully and objectively examined at the court session and correspond to the actual circumstances of the case.
The evidence confirming the guilt of the convicted persons was 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 legal assessment of the deed was given correctly. At the same time, it follows from the case file that the court, in violation of the requirements of the law, sentenced the convicts G. and B. without taking into account their mitigating circumstances. Thus, when imposing punishment, the court should proceed not only from a general assessment of the social danger of this type of crime, but also be obliged to examine the identity of the defendant and the living conditions of his family. A differentiated approach should be applied to each defendant, taking into account the established mitigating and aggravating circumstances of the perpetrator, which should be comprehensively, fully and objectively investigated, bearing in mind their essential importance for determining the type and amount of punishment. As follows from the verdict, the court, when imposing punishment, did not consider circumstances mitigating and aggravating the punishment and responsibility of convicts G., B.. Meanwhile, as can be seen from the case file, G.'s dependent is K.'s young daughter, born on June 29, 2012. Convict B. also has a young daughter, K., born on December 23, 2011. The information is documented. In accordance with paragraph 4 of part 1 of Article 53 of the Criminal Code, the presence of minor children by the perpetrator is a circumstance mitigating criminal liability and punishment. However, the court, discussing the issue of sentencing G. and B., contrary to the requirements of Article 53 of the Criminal Code, unreasonably failed to consider the existence of mitigating circumstances and punishment. The criminal offense committed by convicts G. and B., provided for in paragraphs "a, b" of part 3 of Article 259 of the Criminal Code, belongs to the category of particularly serious crimes. In accordance with paragraph 3 of part 2 of Article 55 of the current criminal law, 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 may not exceed three quarters of the maximum term or amount of the most severe type of punishment provided for in the relevant article of the Special Part of the Criminal Code. The sanction of part 3 of Article 259 of the Criminal Code provides for punishment in the form of imprisonment for up to 15 years with confiscation of property. Three quarters of this term is 11 years and 3 months of imprisonment. The court of first instance sentenced convicts G. to 13 years in prison, B. to 12 years in prison, which exceeds three quarters of the maximum term provided for by the sanction of the specified article. In this regard, the judicial board considered it necessary, recognizing the existence of circumstances mitigating the responsibility and punishment of G. and B. and based on the principle of individualization of punishment, to reduce the sentence imposed on the convicted: G. - up to 11 years and 3 months in prison, B. - up to 11 years in prison.
Based on the above, the judicial Board for Criminal Cases of the Supreme Court amended the judicial acts of the local courts in respect of Ch. and recognized the presence of a minor child in each of the convicts as mitigating the responsibility and punishment of G. and B. In accordance with the requirements of paragraph 3 of part 2 of Article 55 of the Criminal Code, the sentence of imprisonment imposed on G. and B. under paragraphs "a, b" of part 3 of Article 259 of the Criminal Code was reduced: G. - to 11 years and 3 months of imprisonment; B. – to 11 years of imprisonment. The rest of the judicial acts remained unchanged. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied.
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