Lawyer in criminal cases on the postponement of the execution of the imposed punishment of imprisonment restriction of freedom

By the verdict of the Sandyktau District Court of the Akmola region dated January 31, 2013: P.- sentenced under part 2 of Article 325 of the Criminal Code to 1 year in prison, under part 3 of Article 325 of the Criminal Code to 1 year of restriction of liberty, under paragraph "b" of part 3 of Article 176 of the Criminal Code to 5 years in prison with deprivation of the right to hold office, related to financial liability for a period of 3 years, with confiscation of property and property that is her share in common joint ownership with other persons, on the basis of part 3 of Article 58 of the Criminal Code to 5 years in prison. In accordance with part 1 of Article 72 of the Criminal Code, convicted by Paragraph The execution of the sentence was postponed for a period of 5 years, until January 31, 2018. Control over the behavior of the convicted P. is entrusted to a specialized state body. The measure of restraint imposed on convicted P., before the verdict entered into force, was left in the form of a subscription not to leave and proper behavior. By the decision of the Appellate Judicial Board for Criminal Cases of the Akmola Regional Court dated April 29, 2013, the verdict against P. amended, the application of Article 72 of the Criminal Code was abolished and the serving of the sentence imposed in accordance with part 3 of Article 58 of the Criminal Code in the form of 5 years of imprisonment was decided to serve in a correctional colony with deprivation of the right to hold positions related to financial responsibility for a period of three years, with confiscation of property personally belonging to her and property that is her shares in common joint ownership with other persons.

By the decision of the Cassation Board of the Akmola Regional Court dated June 25, 2013, the decision of the Appellate Judicial Board for Criminal Cases of the Akmola Regional Court dated April 29, 2013 remained unchanged. The same verdict convicted M., in respect of which judicial acts are not appealed. By the Court of P. She was found guilty of the fact that, while working as an accountant at the Sandyktau district postal communications center, with the aim of stealing someone else's entrusted property, she entered into a preliminary criminal conspiracy with the head of the main cash register of this enterprise, M., using her official positions, by forging official documents, intentionally, for selfish reasons, by embezzling funds for two years. JSC "K" in the amount of 17,335,384 tenge, that is, on a large scale. In the petition, lawyer Z. He pointed out that P.'s guilt in the commission of the crimes she was charged with had not been proven. The whole accusation against P. is based on the testimony of M., who slandered P. The trial was conducted unilaterally, with an accusatory bias. In addition, he believes that the appellate instance unreasonably abolished the application of article 72 of the Criminal Code. The case materials reliably established that the convicted P. is dependent on two minor children, and this circumstance is the basis for the application of a suspended sentence. Therefore, the conclusion of the court of first instance in this part is correct. He asks the judicial acts that have taken place to cancel and acquit his client for the lack of corpus delicti in her actions. Having considered the case at the request of the defense, the supervisory judicial board of the Supreme Court considered that the decisions of the courts of appeal and cassation in this case are subject to partial cancellation on the following grounds. P.'s guilt in committing the crime was correctly established by the testimony of the convicted M., which is consistent with other evidence collected in the case, namely the testimony of witnesses T., G., K., J., N. and other employees of the Sandyktau RUPS, who, working directly with P. and M., confirmed that it was P. who drew up the orders for sending cash to the OPS, she also verified the transmittal statements from the OPS along with the diaries of F. 130, which noted all receipts and expenditures of funds for rural OPS, and carried out a reconciliation with cash flow through the RUPS, after which she also compiled monthly reports to the regional branch and other factual data collected on the case. By the Court of first instance, the actions of P. A correct legal assessment has been given, and the penalty has been imposed correctly. At the same time, the decision of the court of appeal regarding the cancellation of the application of the rules of Article 72 of the Criminal Code to the convicted person is not based on the law and is subject to cancellation on the following grounds. In accordance with the requirements of part 1 of Article 72 of the Criminal Code, convicted women with young children may be suspended by the court for up to five years. A delay in serving a sentence is not granted to persons sentenced to imprisonment for a term exceeding five years for grave or especially grave crimes against the person. At the same time, the criminal law does not provide for any other restrictions on the court's right to apply article 72 of the Criminal Code. In such circumstances, the decision of the court of first instance to apply, on the basis of article 72 of the Criminal Code, a five-year suspended sentence to convicted P., who has two minor children under the age of fourteen, one of whom is four years old, is lawful and justified.  The cancellation by the court of appeal of the application of Article 72 of the Criminal Code to the convicted person on the grounds that the court of first instance suspended the execution of the sentence applied to the convicted person without taking into account the requirements of Article 52 of the Criminal Code, that is, the general principles of sentencing, is not based on the law. According to the criminal law, the application of a suspended sentence based on article 72 of the Criminal Code is a separate institution and is not related to the requirements of article 52 of the Criminal Code. In this regard, in the absence of violations by the court of first instance of the provisions of Article 72 of the Criminal Code, the court of appeal did not have the grounds provided for in Article 421 of the CPC to change the sentence and cancel the application of the suspended sentence to the convicted person. In such circumstances, the decisions of the courts of appeal and cassation regarding the cancellation of the application of Paragraph 72 of the Criminal Code by the court of first instance to the convicted person were canceled, leaving the court verdict unchanged. 

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