Intentional infliction of death on those who were in a helpless state, committed by an organized group, repeatedly
By the verdict of the specialized interdistrict Criminal Court of Almaty dated July 15, 2013, K., who had no previous criminal record, was sentenced to 20 years in prison under paragraphs "a, b,z,z,k, n" of part 2 of Article 96 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) (as amended in 1997). with confiscation of property, according to paragraphs "a, b" of part 3 of Article 177 of the Criminal Code to 6 years of imprisonment with confiscation of property. Based on part 4 of Article 58 of the Criminal Code, 22 years of imprisonment with confiscation of property and serving sentences in a high-security penal colony were finally imposed on the totality of crimes by partial addition of punishments, including the first five years in prison. L., M, S., B., and Y. were convicted by the same verdict, but no petitions were filed against them. By the verdict of the court of K. He was found guilty of unlawfully intentionally causing the death of two or more persons: A., P., E., N., M., who were in a helpless state, committed by an organized group, repeatedly, for selfish reasons, in order to conceal another crime, as well as committing fraud, that is, theft of other people's property, by deception and abuse by an organized group, on a large scale, repeatedly, in this case, the theft of A.'s apartment, P.'s and E.'s houses, as well as M.'s property.
Intentional infliction of death on those who were in a helpless state, committed by an organized group, repeatedly
The verdict was upheld by the decision of the Appellate judicial Board of the Almaty City Court dated October 18, 2013. By the decision of the Cassation Judicial Board of the Almaty City Court dated January 27, 2014, the judicial acts remained unchanged. In the petition, the convicted K., without disputing the evidence of his guilt and the qualification of actions in the criminal offenses charged against him, asks to exclude from the sentence an aggravating circumstance – the infliction of irreversible grave consequences in the form of the death of innocent people by crimes. In the objection, the representative of the victim Sh. He points out that K. took the lives of the nephew of the victim T., M. and four other people out of mercenary motives. The court's decision to admit K.'s actions The circumstances aggravating criminal liability and punishment were accepted with the participation of jurors and comply with the requirements of the law. Believes that K. dangerous to society, he and his accomplices, without hesitation, took the lives of many people in order to seize their property. Requests to refuse to satisfy the petition of the convicted K. Having studied the materials of the criminal case, having listened to the opinion of the prosecutor, having discussed the arguments of the petition, the objections of the representative of the victim Sh., the board comes to the following. K.'s guilt The commission of a criminal offense has been established by a set of objective and reliable evidence, comprehensively examined at the court session, and is not disputed in the petition. K.'s actions are correctly qualified under paragraphs "a, b, w,h,k, n" of part 2 of Article 96, paragraphs "a, b" of part 3 of Article 177 of the Criminal Code. At the same time, the arguments of the petition for the incorrect recognition of a circumstance aggravating his criminal responsibility and punishment – the infliction of irreversible grave consequences in the form of the death of innocent people by crimes – are justified on the following grounds. When determining the type and amount of K.'s punishment, the court reasonably recognized that he had no previous criminal record and was positively characterized by his state of health as mitigating his criminal responsibility and punishment. The court recognized K.'s criminal liability and punishment as aggravating. a circumstance is the infliction of irreversible grave consequences by crimes in the form of the death of innocent people. According to part 2 of Article 54 of the Criminal Code and paragraph 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of criminal punishment" in cases where the circumstance provided for in Article 53 or Article 54 of the Criminal Code is indicated in the disposition of the article of the Special Part of the Criminal Code as one of the qualifying signs of a crime, it cannot be recognized by the court as an aggravating circumstance and punishment for the commission of this criminal offense.
Unlawful intentional infliction of death on two or more persons is one of the qualifying signs of a crime provided for in part 2 of Article 96 of the Criminal Code. In this regard, "the infliction of irreversible grave consequences by crimes in the form of death of people" was unreasonably recognized by the court as aggravating criminal liability and punishment of K. circumstances and is subject to exclusion. In accordance with paragraph 3 of part 2 of Article 55 of the Criminal Code, 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 criminal offense under paragraphs "a, b, w,h, k, n" of part 2 of Article 96 of the Criminal Code belongs to the category of particularly serious crimes. The sanction of this article provides for punishment in the form of imprisonment for up to twenty years. In this regard, taking into account the rules of paragraph 3) of part 2 of Article 55 of the Criminal Code, the maximum permissible punishment that can be imposed on K. according to paragraphs "a, b, w,h, k, n" of part 2 of Article 96 of the Criminal Code, it is imprisonment for up to 15 years. Thus, according to paragraph 2) of part 2 of Article 55 of the Criminal Code, 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 two thirds 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. Perfect K. The criminal offense under paragraphs "a, b" of part 3 of Article 177 of the Criminal Code belongs to the category of serious crimes. The sanction of this article provides for imprisonment for up to seven years. In this regard, taking into account the requirements of paragraph 2) of part 2 of Article 55 of the Criminal Code, the maximum permissible punishment that can be imposed on K. according to paragraphs "a, b" of part 3 of Article 177 of the Criminal Code, it is imprisonment for up to 4 years and 8 months. In addition, K.'s court verdict ordered the confiscation of property.
According to the clarifications of paragraph 19 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated June 25, 2015 (with subsequent amendments) "On certain issues of the imposition of criminal punishment", when convicting a person under articles of the criminal law, according to which the imposition of additional punishment is mandatory, the court may not impose it only if the conditions provided for in Article 55 The Criminal Code, with the obligatory indication of the reasons for the decision in the verdict. These provisions do not apply to the imposition of additional punishment in the form of confiscation of property, the grounds and conditions of which are determined by the content of this punishment in accordance with the requirements of article 48 of the Criminal Code. There are such circumstances provided for in Article 55 of the Criminal Code in the case. His first criminal record, positive characteristics, and the state of his health were recognized as mitigating criminal liability and punishment of K.. There are no circumstances aggravating criminal liability and punishment for K.. In accordance with paragraph 20 of the above-mentioned regulatory decree, confiscation can be applied only to the property that was owned by the convicted person, obtained by illegal means or acquired by him with funds obtained by illegal means. The property subject to confiscation must be clearly specified in the operative part of the sentence. In this case, the property subject to confiscation is not specified in the court verdict. In addition, the investigating authorities established that there was no registered property behind K.. In view of the above, the judicial board considers it necessary to reduce the imposed penalty for K., and to cancel the additional penalty in the form of confiscation of property. In such circumstances, the convicted person's petition must be satisfied, and judicial acts must be amended. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in relation to K. and she excluded from the sentence an aggravating criminal liability and punishment circumstance – the infliction of irreversible grave consequences by crimes in the form of the death of innocent people, as well as additional punishment in the form of confiscation of property. With the application of the requirements of part 2 of Article 55 of the Criminal Code, the punishment of K. reduced according to paragraphs "a, b, w, h, k, n" of part 2 of Article 96 of the Criminal Code to 15 years in prison, according to paragraphs "a, b" of part 3 of Article 177 of the Criminal Code to 4 years and 8 months in prison. On the basis of part 4 of Article 58 of the Criminal Code, for the totality of criminal offenses by partial addition of punishments, K. is finally ready to serve. He was sentenced to 17 years in prison. The rest of the judicial acts remained unchanged. The petition of the convicted K. satisfied.
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