Incorrect qualification of theft, that is, in the repeated secret theft of property

G. was sentenced under art.188, part 3, paragraph 2) of the Criminal Code to 3 years in prison. Based on Articles 60, parts 1,4, 61, 64 of the Criminal Code, the partially unserved punishment under the previous agreement in the form of 1 year of restriction of liberty was added to the imposed punishment and 4 years of imprisonment were finally imposed.

By the verdict of the court, G. was found guilty of theft, that is, the one-time secret theft of the property of the victims B. and M.

The verdict was changed by the court of appeal. G.'s actions related to the theft of the victim's property were qualified under art.188h.1 of the Criminal Code and G. was released from criminal liability in connection with reconciliation with the victim, making amends for the damage caused by the termination of criminal proceedings in this part.

G. was found guilty under art.188, part 3, paragraph 2) of the Criminal Code on the episode of theft of the property of the victim M., according to which he was sentenced to 2 years and 6 months in prison. Based on Articles 60, parts 1,4, 61 of the Criminal Code, according to the totality of the sentences, the punishment imposed by the previous sentence was partially supplemented with 1 year of restriction of freedom and finally 3 years and 6 months of imprisonment were imposed.

The court acts were changed on the following grounds by the cassation instance.

It can be seen from the case file that, according to the verdict of the court, G. was found guilty and convicted of committing two episodes of theft. His actions were qualified as theft, committed once, according to art.188 part 3, paragraph 2).

The court of appeal on the episode of theft in relation to the victim B. dismissed the case due to reconciliation with the victim and compensation for the damage caused.

Due to these circumstances, the qualifying sign of theft was "repeatedly" subject to exclusion, G.'s actions should have been qualified under art.188 Part 1 of the Criminal Code.

According to art. 55, part 1, paragraph1) The Criminal Code, if the article of the Criminal Code under which the person is found guilty provides for a less severe type of punishment than deprivation of liberty, imprisonment is not imposed when a person is convicted of committing a crime of moderate severity, when the person voluntarily compensated for property damage, moral and other harm caused by the crime.

The case materials established that during the pre-trial proceedings, the loan to the victim M. was reimbursed, the claim was not filed.

The crime committed by G. belongs to the category of medium gravity.

On the basis of art.51, part 1, paragraph 1) of the Criminal Code, a sentence was imposed under art.188h.1 of the Criminal Code in the form of restriction of liberty for a period of 1 year and 6 months. In accordance with art.60 part 1 of the Criminal Code, according to the totality of sentences, 2 years and 6 months of restriction of freedom were finally sentenced to serve with the establishment of probation control for the same period.

 

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