Legality and validity of judicial acts

Incorrect determination of the amount of material damage, failure to comply with the sentencing procedure and unjustified imposition of additional punishment in the form of confiscation of property led to a change in judicial acts by the Verdict of the specialized interdistrict Criminal Court of Almaty region dated May 20, 2015: U., who had no previous convictions, was convicted under paragraphs "w, h, k" of part 2 of Article 96 of the Criminal Code. the Code of the Republic of Kazakhstan (hereinafter – of the Criminal Code) to 16 years of imprisonment with confiscation of personally owned property, under paragraph "b" of part 4 of Article 177 of the Criminal Code to 8 years of imprisonment with confiscation of personally owned property. Based on part 4 of Article 58 of the Criminal Code, 17 years of imprisonment in a general regime penal colony with confiscation of personally owned property were finally imposed by partial addition of punishments. U.'s term of punishment was calculated from the day of his detention, that is, from January 15, 2015. It was decided to collect from U. and N. jointly and severally, material damage in the amount of 5,642,000 tenge and compensation for moral damage in the amount of 5,000,000 tenge in favor of D., in a shared manner to the state revenue, a state fee in the amount of 56,420 tenge - 28,210 tenge each and for a satisfied non-property claim in the amount of 991 tenge.

Legality and validity of judicial acts

It was decided to collect from U. in favor of A. material damage in the amount of 1,635,350 tenge, and a state duty in the amount of 16,353 tenge to the state revenue. It was decided to recover from U. in favor of Z. material damage in the amount of 1,818,000 tenge, and a state duty in the amount of 18,180 tenge to the state revenue. It was decided to collect from U. in favor of D. material damage in the amount of 7,414,000 tenge, and a state duty in the amount of 74,140 tenge to the state revenue. It was decided to collect from U. in favor of O. material damage in the amount of 180,000 tenge, and a state duty in the amount of 1,800 tenge to the state revenue. It was decided to collect from U. in favor of B. material damage in the amount of 1,412,270 tenge, and a state duty in the amount of 14,123 tenge to the state revenue. It was decided to collect the procedural costs in the amount of 22,489 tenge from U. and N. in a shared manner to the state income. The fate of the physical evidence is resolved. By the verdict of the court, U. was found guilty of having taken over the funds of victims Z., A., O., D., B. in the total amount of KZT 12,459,620, i.e. in an especially large amount, by deception and abuse of trust. In addition, U. She was found guilty of the premeditated murder of E., committed by a group of people by prior agreement, in order to conceal another crime, out of mercenary motives, which took place on December 28, 2014 near the village of Azat, Enbekshikazakh district, Almaty region. The same verdict convicted N., in respect of whom the petition was not brought. By the decision of the Judicial Board for Criminal Cases of the Almaty Regional Court dated July 8, 2015, the verdict of the court remained unchanged.

In the petition, the convicted U. Requests to reduce the amount of damage in respect of D. from 7,414,000 tenge to 7,276,000 tenge and in connection with the amendments introduced by the Law of July 12, 2018 in paragraph 3) of Article 3 of the Criminal Code, to reclassify what she had done under paragraph "b" of part 4 of Article 177 of the Criminal Code to paragraph 1) of part 3 of Article 190 of the Criminal Code and appoint 4 years 8 months of imprisonment due to the absence of particularly large-scale damage, on the basis of part 2 of Article 55 of the Criminal Code, reduce the punishment under paragraph "w, h, k" of part 2 of Article 96 of the Criminal Code from 16 years to 15 years of imprisonment, on the basis of part 4 of Article 58 of the Criminal Code, by partially adding up the punishments, finally appoint 15 years and 6 months of imprisonment.. In addition to the petition, the convicted U. Requests that her actions under paragraph "b" of part 4 of Article 177 of the Criminal Code be reclassified to paragraph 1) of part 3 of Article 190 of the Criminal Code with the imposition of 4 years and 8 months of imprisonment due to the absence of particularly large-scale damage, based on part 2 of Article 55 of the Criminal Code to reduce the punishment under paragraph "w, h, k" of part 2 of the Article 96 of the Criminal Code from 16 years to 15 years of imprisonment and on the basis of part 4 of Article 58 of the Criminal Code, by partially adding up the penalties, finally impose 15 years and 6 months of imprisonment. The court's conclusions on the evidence of the guilt of the convicted U. The charges of committing incriminated criminal offenses under the circumstances set out in the judicial acts are based on evidence comprehensively, fully and objectively examined at the court session, correspond to the actual circumstances of the case and the convicted person is not disputed in the petition. At the same time, according to paragraphs 3), 5), 6) of part 1 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are violations of constitutional rights and freedoms of citizens committed during the investigation or judicial review of the case, or improper application of criminal and criminal-procedural laws that led to an incorrect qualification of the perpetrator's act, an incorrect imposition of punishment, an incorrect resolution of a civil claim. Thus, from the verdict of the court on the episode of fraud against the victim D., it follows that the convicted U. "On September 30, 2014, acting through E., continuing to deceive her, she again seized D.'s funds in the amount of 40,000 US dollars – at the exchange rate of the National Bank of the Republic of Kazakhstan 7,414,000 tenge." Meanwhile, as of September 30, 2014, the exchange rate of one US dollar was 181.90 tenge (t.7 l.132), in this regard, 40,000 US dollars in terms of the national currency really amount to 7,276,000 tenge, as indicated in the petition of the convict.

Legality and validity of judicial acts

By the court, the deed of U. regarding the seizure of the victims' funds, Z., A., O., D., B. qualified under paragraph "b" of part 4 of Article 177 of the Criminal Code (as amended in 1997) as fraud, i.e. theft of other people's property by deception, committed repeatedly, on an especially large scale. In accordance with the Law of the Republic of Kazakhstan "On the Republican Budget for 2014-2016" dated December 3, 2013 No. 48-V, from January 1, 2014, the monthly calculation index for calculating benefits and other social benefits, as well as for applying penalties, taxes and other payments in accordance with the legislation of the Republic of Kazakhstan was approved in the amount of 1 852 tenge. According to paragraph 2-1 of the Note to Article 175 of the Criminal Code (as amended in 1997), a particularly large amount or damage in the articles of this chapter (including Article 177 of the Criminal Code recognizes the value of property or the amount of damage, two thousand times higher than the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime, i.e. 3,704,000 tenge and above. However, due to the introduction by the Law of the Republic of Kazakhstan No. 189-VI dated July 12, 2018 of amendments to paragraph 3 of Article 3) of the Criminal Code (as amended in 2014), particularly large damage and especially large size in Article 190 of the Criminal Code (providing for liability for fraud and a similar article 177 of the Criminal Code as amended in 1997) is recognized as the cost property damage or the amount of damage, four thousand times higher than the monthly estimated figure, which as of 2014 is 7,408,000 tenge and higher. In accordance with part 1 of 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. or those who have served their sentence but have a criminal record. In this regard, when qualifying fraudulent actions of the convicted U. The specified rule on the retroactive force of the criminal law should be applied. So, since the convicted U. with the legal qualification of her actions under paragraph "b" of part 4 of Article 177 of the Criminal Code (as amended in 1997), theft of other people's property by deception is imputed, both committed repeatedly and on an especially large scale, then, based on the constitutional principle established by paragraph 8) of part 3 of Article 77 of the Constitution of the Republic of Kazakhstan, that any doubts about the guilt of a person are interpreted in favor of the accused, it should be assumed that the qualifying sign of fraud committed repeatedly is attributed to episodes in relation to victims Z., A., O., D., B., and the qualifying sign of fraud on a particularly large scale was imputed only in the episode against victim D. The court verdict on the episode against victim D. convicted U. was found guilty of embezzlement of 40,000 US dollars, which in terms of national currency amounts to 7,276,000 tenge, in this regard, her actions constitute fraud committed on a large scale, repeatedly, qualified under paragraph "b" of part 3 of Article 177 of the Criminal Code (as amended in 1997). The sanction of paragraph "b" of part 3 of Article 177 of the Criminal Code (as amended in 1997) provides for punishment in the form of imprisonment for a term of three to seven years with confiscation of property, while the sanctions of paragraphs 1), 4) of part 3 of Article 190 of the Criminal Code (as amended in 2014), i.e. fraud committed in on a large scale, repeatedly, – restriction of liberty for a term of three to seven years or imprisonment for the same term, with confiscation of property, i.e. The sanctions of paragraphs 1), 4) of part 3 of Article 190 of the Criminal Code (as amended in 2014), in comparison with the sanction of paragraph "b" of part 3 of Article 177 of the Criminal Code (as amended in 1997), mitigate the punishability of fraud committed on a large scale, repeatedly. In this regard, the actions of the convicted U. For all episodes of fraud, it should be reclassified from paragraph "b" of part 4 of Article 177 of the Criminal Code (as amended in 1997) to paragraphs 1), 4) of part 3 of Article 190 of the Criminal Code (as amended in 2014) as a fraud committed on a large scale, repeatedly. At the same time, in accordance with paragraphs 2), 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 the main type of punishment may not exceed two thirds when committing: - a serious crime.; - a particularly serious crime – three quarters of the maximum term or amount provided for in the relevant article of the Special Part of this Code.

Legality and validity of judicial acts

The court's verdict against the convicted U. recognized her marital status as a circumstance mitigating criminal liability and punishment, but no aggravating circumstances were established. However, the courts of the first and appellate instances did not comply with this requirement of the law when sentencing convicted U., and therefore the sentence in this part should be brought into line with paragraphs 2), 3) of part 2 of Article 55 of the Criminal Code. Also, according to the episode concerning the victim D. in connection with the reduction of the amount of damage to 7,276,000 tenge from the convicted U. in favor of D. Instead of 7,414,000 tenge, 7,276,000 tenge should be collected, with a reduction in the state duty on state revenue from 74,140 tenge to 72,760 tenge. The damage was also calculated incorrectly for the episode of fraud against victim D. Thus, the court verdict on the episode against victim Z. The convicted U. was found guilty of embezzlement of 10,000 US dollars on November 10, 2014. As of November 10, 2014, the exchange rate of one US dollar was 180.87 tenge (t.7 l.134), in terms of the national currency, 10,000 US dollars amount to 1,808,700 tenge. In this regard, in the descriptive and motivational part of the verdict on the fraud episode against victim D., the amount of damage should be reduced from 1,818,000 tenge to 1,808,700 tenge, i.e. by 9,300 tenge, the state duty from 18,180 tenge to 18,087 tenge. In addition, the court unreasonably imposed additional punishment on U. in the form of confiscation of property. Thus, from the meaning of part 1 of Article 48, part 3 of Article 113 of the CPC, as well as the provisions of paragraphs 19, 20 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of sentencing to criminal punishment", it follows that additional punishment in the form of confiscation of property is not imposed if the case does not There is information about the criminality of the origin of the property or there is no property at all. In this case, the pre-trial investigation body has not established the presence of U. any property owned in respect of which there is evidence of criminality of their origin, in connection with which the additional penalty in the form of confiscation of property is subject to cancellation.

In accordance with paragraph 2) of part 5 of Article 46 of the Criminal Code, serving the sentence of a convicted U. It should be assigned to an institution of the criminal executive system of medium security. Based on the above, the judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in respect of U. Reduced the amount of damage from 7,414,000 tenge to 7,276,000 tenge, i.e. by 138,000 tenge, in the descriptive and motivational part of the verdict on the fraud episode against the victim D. from 7,414,000 tenge to 7,276,000 tenge, i.e. by 138,000 tenge, and the actions of U. according to paragraph "b" of part 4 of Article 177 of the Criminal Code (as amended in 1997), it was reclassified to paragraphs 1), 4) of part 3 of Article 190 of the Criminal Code (as amended in 2014). U. was sentenced with the sanctions of paragraphs 2), 3) of part 3 of Article 55 of the Criminal Code, paragraphs "w, h, k" of part 2 of Article 96 of the Criminal Code (as amended in 1997) – 15 years in prison, according to paragraphs 1), 4) of part 3 of Article 190 of the Criminal Code (as amended in 2014) – 4 years and 8 months of imprisonment. Based on part 4 of Article 58 of the Criminal Code, 16 (sixteen) years and 6 (six) months of imprisonment were finally imposed by partial addition of punishments and served in an institution of the medium-security penal system. The material damage collected from U. in favor of D. was reduced to 7,276,000 (seven million two hundred and seventy-six thousand) tenge, and the state duty on state revenue was reduced to 72,760 (seventy-two thousand seven hundred and sixty) tenge. Reduced in the descriptive and motivational part of the verdict on the episode of fraud against victim D. the amount of damage and its recovery from U. to 1,808,700 tenge, state duty to the state revenue up to 18,087 tenge. The additional penalty in the form of confiscation of property against U. was abolished. The rest of the judicial acts in relation to the convicted U. left unchanged. The petition and the supplement to it of the convicted U. partially satisfied. 

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