Incorrect qualification in the secret theft of other people's property, committed repeatedly

By a court verdict dated 03/15/2022, U. was sentenced to 5 years in prison under art. 188, part 3, paragraph 2) of the Criminal Code. On the basis of Articles 58, h.3,6 of the Criminal Code of the Russian Federation, 5 years of imprisonment were finally imposed by way of imposing a less severe punishment on a more severe one in accordance with the sentence of 08.02.2022.

U. was found guilty of the secret theft of other people's property, committed repeatedly.

The court of appeal upheld the verdict.

The Court of Cassation changed the judicial acts on the following grounds.

As follows from the materials of the criminal case, U. committed the theft of a cell phone, worth 29,500 tenge, belonging to the victim M.

During the pre-trial investigation, the stolen cell phone was seized and returned to the victim, who did not file a civil claim.

At the same time, it follows from the case file that the theft episode of January 7, 2021, under Article 188, Part 1 of the Criminal Code, was sentenced against U. on February 8, 2022. Consequently, at the time of the verdict of the court of March 15, 2022, U. He was already a convicted person for an earlier theft.

In accordance with Article 12, Part 2 of the Criminal Code, a criminal offense is not recognized as having been committed repeatedly if a person has been convicted of a previously committed criminal offense.

In such circumstances, the qualifying feature "repeated occurrence" provided for in art.188 Part 3 of the Criminal Code is subject to

with the exception, the actions of the convicted person should be qualified under art.188h.1 of the Criminal Code.

During the trial, a notice was received from the victim M. to terminate the proceedings in connection with the reconciliation.

In accordance with Article 68, Part 1 of the Criminal Code, a person who has committed a criminal offense or a minor or moderate crime unrelated to causing death is subject to release from criminal liability if he has reconciled with the victim, the applicant, including through mediation, and has made amends for the damage caused.

The proceedings in the case were terminated, U. was released from criminal responsibility for the reconciliation of the parties.

 

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