Legality and validity of the resolution it is legal to terminate a case related to a criminal offense on the basis of the first part of Article 65 of the Criminal Code

By the resolution of the Karakiyansky District Court of Mangistau region dated February 28, 2019: O. was not previously convicted, was released from criminal liability in accordance with the first part of Article 65 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code) in connection with sincere repentance in the first part of Article 197 of the criminal code, and the proceedings on a criminal offense were terminated.  499.5 liters of fuel and lubricants received as evidence were entered in favor of the state. By a court decision, O. was found guilty of transportation, possession of petroleum products without documents confirming the legality of their release. The criminal case was conducted in electronic format. In the protest of the prosecutor general, it is stated that the decision of the court to terminate the case in connection with the sincere repentance of O. in accordance with Article 65 of the criminal code is illegal, since in the presence of a set of all the circumstances provided for by law, it is allowed to release a person from criminal liability. And the court, taking into account the information regarding the identity of O. and his confession of guilt, did not take into account the absence of all sets of grounds provided for by law. In this regard, the Karakiyansky District Court of Mangistau region asked to cancel the sentence and send the case to the same court for reconsideration.

Legality and validity of the resolution it is legal to terminate a case related to a criminal offense on the basis of the first part of Article 65 of the Criminal Code

According to the documents of the criminal case, O. on February 15, 2019, at about 20:00 on the road of the village of Zhetybay, Karakiyansky district, illegally transported 500 liters of oil products – gasoline fuel in a car under his control with the State Mark o784es163 of the Gazelle brand without any documents confirming the legality of release.  According to the results of the analysis of the laboratory of the Center for physical and chemical analysis of oil and water of the State Enterprise "OMG" JSC dated February 18, 2019, it was established that the liquid poured into a container of 1 piece of 0.5 liters recommended for research is an organic liquid with a yellow color and a characteristic smell of gasoline fuel. The fact that O. committed a criminal offense provided for in the first part of Article 197 of the criminal code has found its evidence. This was not disputed in the protest. The court, taking into account the fact that O. committed a criminal offense for the first time, fully recognized it, the absence of damage caused by the crime and personal data, released him from criminal liability in accordance with the first part of Article 65 of the criminal code, due to sincere repentance. The prosecutor's statement that the court, when applying the criminal law, unreasonably guided the person by circumstances that do not allow him to be released from liability, is contrary to the law. A person who has committed a criminal offense or committed a crime for the first time under the first part of Article 65 of the criminal code may be released from criminal liability, taking into account the identity of the guilty person, confession, assistance in the disclosure, investigation of a criminal offense, restoration of damage caused by a criminal offense.

In this regard, to release a person from criminal liability in connection with genuine repentance, a set of grounds provided for by law or actions that can be performed by the guilty person, depending on the specific circumstances of the case, are used. And as it turned out from the documents of the criminal case, O. was detained by police officers when he illegally took possession of fuel and lubricants and transported it along the highway.  That is, he was detained at the scene of the incident, so he did not have the opportunity to plead guilty and go to law enforcement agencies. O. Due to the fact that 500 liters of gasoline were kept at the scene of the incident, there was no need for voluntary compensation for property damage. In addition, since the criminal misconduct of O. was exposed there, there was no need to disclose, investigate and influence the criminal offense. In the context of such a case, the judicial board came to the conclusion that the court decision, which applied the first part of Article 65 of the criminal code in relation to O., is legitimate and justified. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan dismissed the protest of the prosecutor general of the Republic of Kazakhstan, leaving the verdict of the court of first instance in force against the convicted O. 

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