Lawyer in Almaty on criminal cases Sentencing  

By the verdict of the Almaty District Court of Astana dated December 31, 2010, O., who had no previous criminal record, was sentenced under paragraph "b" of part 3 of Article 177 of the Criminal Code to 8 years in prison with confiscation of all his property, under paragraph "b" of part 3 of Article 176 of the Criminal Code to 10 years in prison with confiscation of all his property, with deprivation of the right to engage in entrepreneurial activity for up to three years, under part 1 of Article 194 of the Criminal Code to the 1st year of imprisonment, under part 2 of Article 222 of the Criminal Code to 3 years of imprisonment and the right to engage in entrepreneurial activity for up to three years, with a fine of 1,000 MCI in the amount of 1,413,000 tenge, with confiscation of property, and in accordance with part 3 of Article 58 of the Criminal Code by partially adding penalties finally to 12 years in prison with deprivation of the right to engage in entrepreneurial activity for a period of three years, with confiscation of all property owned, in a correctional colony of general regime. The term of punishment has been calculated since May 5, 2009. The fate of the material evidence in the case is resolved in accordance with article 118 of the CPC. It was decided to collect from Fr. in favor of the liquidation commission of JSC "B", the amount of damage was 240,852,151 tenge, in favor of the branch of JSC "T" in Astana – 7,501,513.55 US dollars (1,125 227 032 tenge), as well as a state duty in the amount of 33,756,811 tenge.

Lawyer in Almaty on criminal cases Sentencing  

The civil claim of JSC "I" for recovery of damages was left without consideration for appeal in civil proceedings. It was decided to collect from O. in favor of the Tselinograd branch of JSC "B" Astana 121,260,000 tenge, to the state income a state duty in the amount of 3,637,800 tenge, to the Tselinograd branch of JSC "K" 151,983,147 tenge, to the state income a state duty in the amount of 4,559,495 tenge, to the branch of JSC "B" Kokshetau – 8,949,6204 tenge, state duty in the amount of 2,684,886 tenge to the state revenue. It was decided to collect from Fr. in favor of the regional branch of JSC "N" 90 500 000 tenge, to the state revenue a state duty in the amount of 2,715,000 tenge, to the branch of JSC "U" Astana – 30 385,000 tenge, to the state revenue a state duty in the amount of 911,550 tenge. It was decided to collect from O., Zh. in solidarity in favor of the Ministry of Transport and Communications of the Republic of Kazakhstan 126,926,426.5 tenge, to the state revenue a state duty in the amount of 3,807,793 tenge. It was decided to collect 213,600 tenge from O., M., T. jointly and severally to the state revenue for conducting examinations, and from O., J. In a joint order, 391,600 tenge is allocated to the state income for conducting examinations. By the verdict of the court, O. was found guilty of the fact that, being the founder and head of LLP "Zh" and a number of other enterprises, he repeatedly committed a number of crimes against property, as well as in the field of economic activity, out of mercenary motives, by deception. By the resolution of the Judicial Board for Criminal Cases of the Astana City Court dated June 3, 2011, the verdict of the court remained unchanged. By the decree of the court No. 2 of the city of Pavlodar dated February 8, 2012, the verdict of the court dated December 31, 2010 was brought into line with the Law of the Republic of Kazakhstan dated November 9, 2011 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on improving law enforcement and further humanization of criminal legislation" and O. It was decided to consider him convicted under paragraph "b" of part 3 of Article 177 of the Criminal Code to 7 years in prison, on the basis of part 3 of Article 58 of the Criminal Code, by partially adding up the punishments, to finally consider him sentenced to 11 years and 6 months in prison with deprivation of the right to engage in entrepreneurial activity for up to 3 years and confiscation of property.

By the decision of the judge of the Appellate judicial Board of the Pavlodar Regional Court dated April 4, 2012, the court's decision remained unchanged. By a decision of the Kokshetau City Court of the Akmola region dated August 1, 2017, O.'s petition for the application of article 6 of the Criminal Code was denied. Zh., M., and T. were also convicted by this verdict, in respect of which judicial acts have not been challenged in cassation. Conclusions of the court on the guilt of the convicted O. The acts charged against him under the circumstances set out by the court of first instance in the descriptive and motivational part of the verdict are based on evidence comprehensively, fully and objectively examined at the court session and correspond to the actual circumstances of the case, and are not disputed in the petitions. In accordance with article 24 of the CPC, the courts of first instance and the courts of appeal took all measures provided by law for a comprehensive, complete and objective investigation of the circumstances necessary and sufficient for the proper resolution of the case. The actions of Fr. the court has given a proper legal assessment and, according to paragraph "b" of part 3 of Article 177, paragraph "b" of part 3 of Article 176, part 1 of Article 194, part 2 of Article 222 of the Criminal Code, they are qualified correctly. According to paragraph 4 of the normative resolution of the Supreme Court dated December 22, 2016 No. 15 "On judicial practice on the application of Article 6 of the Criminal Code of the Republic of Kazakhstan", if a new criminal law establishes the same sanction as the previous law and does not improve in any way the situation of the person who committed a criminal offense, it is not retroactive. and it is not applicable. In this case, the provision of article 5 of the Criminal Code applies, stating that the criminality and punishability of an act are determined by the law in force at the time of the commission of this act. In this regard, there are no grounds for reclassifying O.'s actions to the norms of the Criminal Code as amended in 2014, since part 3 of Article 190 of the Criminal Code does not improve his situation compared to part 3 of Article 177 of the Criminal Code, and there are no grounds for reclassifying part 2 of Article 222 of the Criminal Code to part 1 of Article 245 of the Criminal Code, in addition, a fine provided for in part 2 of Article 222 of the Criminal Code, the court has not appointed a set of crimes. At the same time, the arguments of Fr. The fact that the court unlawfully recognized the infliction of serious consequences by a crime as a circumstance aggravating criminal liability and punishment is justified. According to part 1 of Article 54 of the Criminal Code, circumstances aggravating criminal liability and punishment, along with other circumstances, also include the infliction of serious consequences by a crime. However, recognizing this circumstance as aggravating criminal liability and punishment of O., the court did not specify in the verdict to whom and what grave consequences were caused, and therefore it should be excluded from the verdict. The reference to paragraph 4 of Article 3 of the Criminal Code (as amended in 2014) is unfounded, since at the time of sentencing there was no such provision in the Criminal Code. In accordance with paragraph 2) In the presence of a mitigating circumstance 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 when committing a serious crime. Meanwhile, the court recognized O.'s involvement in criminal liability for the first time, positive characteristics of his place of residence and work, and marital status as mitigating criminal liability and punishment.

In such circumstances, O.'s punishment should be imposed in compliance with the requirements under paragraph 2) of part 2 of Article 55 of the Criminal Code, according to which the punishment imposed by the court should not exceed: under part 3 of Article 177 of the Criminal Code – 4 years 8 months of imprisonment, under part 3 of Article 177 of the Criminal Code – 6 years 8 months of imprisonment, under Part 2 of Article 222 of the Criminal Code – 2 years and 6 months of imprisonment. The board also considers it necessary to change the sentence regarding the appointment of Fr. additional punishment in the form of deprivation of the right to engage in entrepreneurial activity, indicating that he is not entitled to engage in entrepreneurial activities related to financial responsibility, due to the fact that the court, in imposing additional punishment on him, did not specify in the verdict the type of entrepreneurial activity that he is deprived of the right to engage in. In addition, according to part 1 of Article 48 of the Criminal Code (as amended in 2014), confiscation of property is the forced gratuitous seizure and conversion into state ownership of property owned by a convicted person, obtained by criminal means or acquired with funds obtained by criminal means. According to article 6 of the Criminal Code, a law that eliminates the criminality or punishability of an act, mitigates responsibility or punishment, or otherwise improves the situation of a person who committed a criminal offense is retroactive, that is, it applies to persons who committed the relevant act before the introduction of such a law, including persons serving a sentence. In accordance with paragraph 2) In part 5 of Article 46 of the Criminal Code (as amended in 2014), the institution of the medium-security penal system should be determined as the place of serving the Term of imprisonment. In accordance with paragraph 5) of part 1 of Article 485 of the CPC, one of the grounds for the cassation review of judicial acts that have entered into force is violations of the requirements of the criminal law committed during the consideration of the case, which led to the incorrect imposition of punishment. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court amended the judicial acts of the local courts in relation to O. and excluded from the verdict the instruction to recognize the aggravating criminal liability and punishment of convicted O. as a circumstance - causing serious consequences by a crime.

Subject to the provisions of paragraph 2) of part 2 of Article 55 of the Criminal Code, the punishment was imposed: under paragraph "b" of part 3 of Article 177 of the Criminal Code – 4 years and 8 months of imprisonment with confiscation of property obtained by criminal means or acquired with funds obtained by criminal means.; under paragraph "b" of part 3 of Article 176 of the Criminal Code – 6 years and 8 months of imprisonment with confiscation of property obtained by criminal means or acquired with funds obtained by criminal means, with deprivation of the right to engage in activities related to financial responsibility for a period of 3 years, under part 2 of Article 222 of the Criminal Code – 2 years and 6 months of imprisonment with deprivation of the right to engage in activities related to financial responsibility for a period of 3 years, with a fine of 1,000 monthly calculation indices in the amount of 1,413,000 tenge, with confiscation of property obtained by criminal means or acquired with funds obtained by criminal means, under part 1 of Article 194 of the Criminal Code – 1 year of imprisonment. On the basis of part 3 of Article 58 of the Criminal Code, by partially adding up the penalties imposed, Fr. He was sentenced to 10 years in prison with deprivation of the right to engage in activities related to financial responsibility for a period of 3 years, with confiscation of property obtained by criminal means or acquired with funds obtained by criminal means, and with serving his sentence in an institution of the medium-security penal system. In the rest of the judicial acts were left unchanged, the petition of convicted O. was partially satisfied. 

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