Improper application by the court of appeal of the law governing the imposition of punishment in case of active repentance.
By the verdict of the Aktobe city Court No. 2 dated November 16, 2012: D.- sentenced under part 1 of Article 269-1 of the Criminal Code to a fine of 1,000 MCI in the amount of 1,618,000 tenge. In accordance with part 1 of Article 13 of the Criminal Code, the presence of a recidivism of crimes was recognized in D.'s actions. By the decision of the Court of Appeal for Criminal Cases of the Aktobe Regional Court of January 16, 2013, the sentence was changed, in accordance with paragraph "a" of part 2 of Article 13 of the Criminal Code, D.'s actions were recognized as a dangerous recidivism of crimes. Based on the rules of Article 59 of the Criminal Code, he was sentenced to 1 year and 5 months of imprisonment with confiscation of property and serving his sentence in a high-security penal colony. The rest of the verdict was left unchanged. By the decision of the Cassation Board of the Aktobe Regional Court dated March 05, 2013, the decision of the Appellate Judicial Board for Criminal Cases of the Aktobe Regional Court dated January 16, 2013 remained unchanged. By the Court of D. He was found guilty of illegally opening a gambling establishment between May 23 and June 06, 2012, organizing activities in the field of gambling related to the extraction of income.
Improper application by the court of appeal of the law governing the imposition of punishment in case of active repentance.
Having considered the case at the request of the defense, the supervisory judicial board of the Supreme Court considered that the decisions of the courts of appeal and cassation in this case are subject to cancellation on the following grounds. The guilt of the convicted D. in the commission of the crime has been established. The court gave his actions a correct legal assessment. These circumstances are not disputed by anyone. At the same time, the court of appeal misinterpreted and applied the criminal law governing the imposition of punishment with active repentance of the accused. In accordance with the provisions of part 5 of Article 53 of the Criminal Code, if the sanction of the article of the Special Part of the Criminal Code for which the person is found guilty provides for various (alternative) types of punishments, in the presence of a mitigating circumstance provided for in paragraph e) of the first part of this article, imprisonment for crimes of minor and moderate gravity is not imposed. The Court of first instance reasonably recognized that since D. If he has taken measures to make amends for the harm caused by the crime, paid money to the state's income, fully admitted his guilt and repented of what he had done, then his actions indicate active repentance and fall under the circumstances provided for in paragraph e) of the first part of Article 53 of the Criminal Code. In such circumstances, taking into account the requirements of Part 5 of Article 53 of the Criminal Code and the clarifications contained in paragraph 3-1 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 1 dated April 30, 1999, as amended by regulatory Resolutions No. 12 dated December 25, 2006, No. 9 dated December 25, 2007, No. 9 dated 22 December 2008 and No. 1 of April 21, 2011, "On the observance by Courts of legality in the imposition of criminal punishment" (hereinafter referred to as the regulatory decision), the court of first instance correctly appointed D. for a minor crime, the penalty is not related to imprisonment. The position of the court of appeal that the court of first instance is obliged, when sentencing D. apply the rules of part 2 of Article 59 of the Criminal Code, directly contradict the explanations of paragraph 3-1 of the regulatory decree stating that the provision provided for in part five of Article 53 of the Criminal Code applies regardless of whether there is a recidivism, dangerous or especially dangerous recidivism of crimes in the case, and in the case of competition between the provisions of the law provided for in paragraph e) of part one of Article 53 of the Criminal Code and part According to the second article 59 of the Criminal Code, the requirements of the first norm have priority. The conclusions of the court of appeal that the circumstances provided for in paragraph "d" of part 1 of Article 53 of the Criminal Code can take place only if there is a material corpus delicti and are not applicable to the formal corpus delicti are also unfounded and illegal. In the theory of criminal law, the division of crimes into material and formal is conditional and is not provided for in the criminal law. In addition, the court of appeal, considering the issue of applying an additional penalty in the form of confiscation of property, obviously went beyond the protest, since the public prosecutor did not ask for an additional penalty in the form of confiscation of property. These direct violations of the law have not been eliminated by the court of cassation. The Supervisory Judicial Board of the Supreme Court overturned the decisions of the appellate and cassation judicial boards of the Aktobe Regional Court in respect of D.. The verdict of the Aktobe city Court No. 2 against D. remained unchanged. The lawyer's motion was granted, and D. was immediately released from custody.
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