Incorrect qualification and incorrect assignment of additional punishment.
D. was sentenced under Articles 28, Part 3, 216, Part 3, 58, Part 6 of the Criminal Code to 4 years and 8 months in prison with deprivation of the right to hold senior positions in commercial enterprises and engage in entrepreneurial activity for a period of 10 years.
The court of appeal upheld the verdict.
By the verdict of the court, D. was found guilty of organizing the commission of actions by a private business entity to issue an invoice without actually performing work, providing services, and shipping goods in order to extract property benefits, causing particularly large damage to the state.
The court acts were changed on the following grounds by the cassation instance.
According to the court verdict, D. organized the statements of invoices without the actual performance of work, provision of services, shipment of goods.At the same time, the case materials did not identify other accomplices in the commission of the crime, and the convicted person himself was the sole perpetrator of the crime.
In such circumstances, D.'s actions are subject to requalification from Articles 28, part 3, 216 hours.3 of the Criminal Code according to art.216 part 3 of the Criminal Code, by drawing up the prescribed basic punishment.
The sanction of Article 216, Part 3 of the Criminal Code provides for additional punishment in the form of life imprisonment for the right to hold certain positions or engage in certain activities or without such.
According to paragraph 22 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 25, 2015 "On certain issues of criminal punishment", the imposition of additional punishment in the form of life imprisonment for the right to hold a certain position or engage in certain activities is provided only for certain categories of crimes directly listed in Part 2 of Article 50 of the Criminal Code. For other criminal offenses not included in this list, life imprisonment is not imposed, even if this type of additional punishment is provided for as mandatory under the article of the Criminal Code.
In such cases, the court must proceed from the general grounds and conditions for the imposition of this type of additional punishment, according to which it is imposed for a period of one year to sixty years. In this case, it is necessary to make a reference to art.50 part 3 of the Criminal Code.
Also, based on the provisions of Article 50 of the Criminal Code, it is not allowed to assign the right to hold certain positions and engage in certain activities simultaneously for the same crime.
D. The court incorrectly imposed two additional punishments for one crime. This is the deprivation of the right to hold managerial positions in commercial enterprises and engage in entrepreneurial activities.
A circumstance aggravating criminal responsibility and punishment is also subject to exclusion - a particularly active role in the commission of a criminal offense, since it has not been established in the case that the criminal offense was committed in complicity, there is only one perpetrator in the person of convicted D.
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
