Legality and validity of the court verdict

The conclusions of the court of appeal are not based on the law by the verdict of the Tselinograd District Court of the Akmola region dated January 22, 2021: K., previously convicted: 1) on March 26, 2014, under part 3 of Article 24, paragraphs "a, b, c" of part 2 of Article 175, paragraph "b" of part 4 of Article 175, Article 58 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), to 3 years in prison; 2) on September 2, 2014, under paragraph "b" of part 4 of Article 175, part 6 of Article 58 of the Criminal Code to 5 years of imprisonment. By a court order dated August 12, 2016, he was released on parole for 2 years, 4 months, and 7 days.; 3) on September 11, 2020, according to paragraphs 1), 2) of part 3 of Article 188 of the Criminal Code, to 3 years and 6 months of restriction of freedom; - convicted under paragraph 3) of part 3 of Article 188 of the Criminal Code to 4 years in prison. Based on part 1 of Article 60 of the Criminal Code, according to the totality of sentences, the unserved part of the sentence from the verdict of September 11, 2020 was partially added to the imposed punishment and 4 years and 6 months of imprisonment were finally imposed, while serving the sentence in an institution of the medium-security penal system. The time spent in custody from November 27, 2020 to the entry into force of the sentence was counted towards the term of serving the sentence, based on one day of detention per day and a half in an institution of the medium security penal system. Material damage in the amount of 30,000 tenge was recovered from K. in favor of the civil plaintiff A., a state fee in the amount of 300 tenge, procedural costs in the amount of 840 tenge were collected to the state revenue, and a compulsory payment in the amount of 20 monthly calculation indices – 55,560 tenge was paid to the Victims Compensation Fund. The fate of the physical evidence is resolved. By the verdict of the court, K. was found guilty of secret theft of other people's property, committed with illegal entry into the home. By the resolution of the judicial Board for Criminal Cases of the Akmola Regional Court dated March 3, 2021, the verdict was changed. The application of Article 60 of the Criminal Code has been abolished. On the basis of part 6 of Article 58 of the Criminal Code for the totality of crimes by partially adding the imposed punishment with the punishment according to the verdict of the Tselinograd District Court of the Akmola region dated September 11, 2020, finally K. He was sentenced to 4 years and 6 months of imprisonment to be served in an institution of the medium-security penal system. Recovered from the convicted K. The amount of 55,560 tenge has been reduced to 5,060 tenge to the Victims Compensation Fund. The rest of the verdict remains unchanged.

Legality and validity of the court verdict

The protest of the Acting Prosecutor General raises the issue of excluding from the decision of the judicial board the application of part 6 of Article 58 of the Criminal Code to convicted K., since the sentence of September 11, 2020 entered into force on September 26, 2020, that is, before the commission of a new crime on October 5, 2020. Under these circumstances, it should be to be considered convicted with the application of part 1 of Article 60 of the Criminal Code by partially attaching the unserved sentence under the court verdict of September 11, 2020 to 4 years and 6 months of imprisonment while serving the sentence in an institution of the medium-security penal system. The court of appeal changed the verdict and excluded the application of the rules of part 1 of Article 60 of the Criminal Code on the grounds that the court's order on the execution of the judicial act was the verdict of the Tselinogradsky District Court of September 11, 2020 against K. entered into force on October 8, 2020, and in this case K. the crime was committed on October 5, 2020, i.e. before the verdict entered into force, the rules of part 6 of Article 58 of the Criminal Code were applied. However, these conclusions of the Court of appeal are not based on the law. It was established that by the court's verdict of September 11, 2020, K. was sentenced under paragraphs 1), 2) of part 3 of Article 188 of the Criminal Code to 3 years and 6 months of restriction of freedom. The same sentence sentenced Kh. to 4 years of imprisonment and M. to 3 years and 6 months of restriction of freedom. The said court verdict by convicts K., Kh. and M. has not been appealed and has not been reviewed in the appellate instance. In accordance with part 1 of Article 418 of the Criminal Procedure Code of the Republic of Kazakhstan, appeals are filed, the prosecutor's petition is brought within 15 days from the date of the verdict, and convicted persons in custody are served with a copy of the verdict within the same period from the date they are handed a copy of the verdict. Due to the fact that K. If he was sentenced to restriction of liberty and was not in custody, then the court verdict of September 11, 2020 against him entered into force on September 26, 2020, after the expiration of the period for appeal.

Legality and validity of the court verdict

Since K. committed a new crime on October 5, 2020, i.e. after the court verdict of September 11, 2020 entered into force, the court of first instance lawfully applied part 1 of Article 60 of the Criminal Code and imposed the final punishment based on the totality of sentences. The Judicial Board for Criminal Cases of the Supreme Court changed the decision of the appellate instance: - excluded the application of part 6 of Article 58 of the Criminal Code; - decided to consider K. convicted persons applying the rules of part 1 of Article 60 of the Criminal Code for the totality of sentences by partially attaching the unserved part of the sentence under the sentence of September 11, 2020, finally to 4 years and 6 months of imprisonment with serving the sentence in an institution of the medium-security penal system. The decision of the appellate judicial board remained unchanged in the rest. Thus, the verdict of the court of first instance remained unchanged. The protest of the Acting Prosecutor General of the Republic of Kazakhstan is satisfied. 

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