Mitigating criminal liability and punishment

By the verdict of court No. 2 of the Zelenovsky district of the West Kazakhstan region dated February 7, 2017, Ye., who had no previous criminal record, was sentenced under part 4 of Article 345 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 7 years in prison with the deprivation of the right to drive a vehicle for a period of 6 years, while serving his sentence in a penal colony. By the verdict of the court E. He was found guilty of driving along the Uralsk–Kirsanovo highway in a westerly direction, 55 km away, at about 03:00 hours, while intoxicated, driving a vehicle – a Lada21911 car, license plate 362DEA/07, in a westerly direction, at 55 km., grossly violating the requirements of subparagraph 1 of Section 10. 2.1.5, 2.4.2 of the Traffic Rules (hereinafter referred to as SDA), having lost control, allowed the car to roll over. As a result of this traffic accident (hereinafter referred to as the accident), the passengers of the above-mentioned car Zh. and Z. They died on the spot from their injuries. By a decision of the Judicial Board for Criminal Cases of the West Kazakhstan Regional Court dated April 5, 2017, the court's verdict was changed: the recognition of circumstances mitigating criminal liability in the case was excluded, and the punishment imposed on E. under part 4 of Article 345 of the Criminal Code was increased to 10 years in prison. The rest of the verdict was left unchanged.

Mitigating criminal liability and punishment

In the petition, the convicted E., without disputing the evidence of his guilt and the qualification of his actions in the deed, expresses disagreement with the decision of the appellate instance regarding the exclusion of mitigating circumstances from the sentence and the increase in the term of his sentence to 10 years in prison. Having studied the materials of the criminal case and heard the statement by Prosecutor S., who suggested that the decision of the appellate instance should be changed and the sentence reduced to 9 years in prison, the board considers that the decision of the appellate instance should be overturned on the following grounds. In accordance with paragraph 5 of part 1 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), one of the grounds for the cassation review of judicial acts that have entered into force is violations of constitutional rights and freedoms of citizens committed during the investigation or judicial review of the case, or the incorrect qualification of the convicted person's act and the discrepancy between the court–imposed punishment and the severity of the criminal offense. the identity of the convicted person. There are such grounds for a cassation review of the judicial act in this case. The court's conclusions about E.'s guilt in the alleged act, under the circumstances set out in the verdict, are fully supported by a body of evidence fully, comprehensively and objectively examined in the main trial, and correspond to the factual circumstances of the case. The guilt of E. In addition to his initial confessions, which he gave during the pre-trial proceedings, his actions are supported by other indisputable evidence in the case, namely, the testimony of victims, witnesses, experts, protocols of identification, confrontations, video recordings of investigative actions and other case materials. E.'s actions under part 4 of Article 345 of the Criminal Code are qualified correctly.

At the same time, the arguments of Ye.'s petition on the groundlessness of the conclusions of the court of appeal on the exclusion from the court's verdict of circumstances mitigating criminal liability and punishment, as well as an increase in the sentence imposed on him to 10 years in prison, are well-founded. In accordance with the provisions of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of criminal punishment", courts must comprehensively, fully and objectively examine data on the identity of the defendant, bearing in mind their significant impact on determining the type and amount of punishment. In particular, it is necessary to clarify the state of health, ability to work, attitude to work, education, information about the criminal record and marital status of the defendant. In accordance with Part 3 of Article 52 of the Criminal Code, courts must take into account the impact of the imposed punishment on the living conditions of the defendant's family and dependents when imposing punishment. According to part 2 of Article 52 of the Criminal Code, a person who has committed a criminal offense must be given a punishment necessary and sufficient to correct it and prevent new criminal offenses. A more severe type of punishment from among those provided for a committed criminal offense is imposed only if a less severe type of punishment cannot achieve the goals of the punishment.

In accordance with part 2 of Article 53 of the Criminal Code, when imposing punishment, the court may take into account circumstances not provided for in part one of this article as mitigating factors. Guided by the provisions of this article of the Criminal Code, the court of first instance reasonably recognized the objectively established data in the case: Ye.'s young age, mediocre characterization at his place of residence and the fact that he had not previously been prosecuted as mitigating circumstances in the case. In addition, according to part 3 of Article 11 of the Criminal Code, a criminal offense in which E. found guilty, qualified as a reckless act, refers to crimes of moderate severity. The arguments of the appellate instance that the court of first instance did not explain in the verdict how the circumstances listed above mitigate E.'s guilt are untenable. According to the above-mentioned regulatory decree, when sentencing a court, it is mandatory to indicate in the verdict for each defendant the circumstances mitigating and aggravating his responsibility and punishment. As follows from the materials of the criminal case, E. He had not previously been brought to criminal responsibility, he was young - he was only 29 years old, and his character was mediocre. Therefore, the court of first instance, taking into account the requirements of the law, reasonably recognized the circumstances listed above as mitigating his guilt, also recognized the commission of a crime under the influence of alcohol as an aggravating circumstance and, without applying the rules of part 2 of Article 55 of the Criminal Code, imposed a sentence of 7 years in prison.  According to the requirements of part 1 of Article 426 of the CPC, the court considering the case on appeal verifies the legality, validity, and fairness of the verdict and ruling in that part and only in respect of those convicted persons who are affected by the complaint or petition of the prosecutor. However, the appellate instance, in violation of the law, unreasonably excluded the above-mentioned circumstances from the verdict, which were recognized as mitigating by the court of first instance, and increased the sentence to 10 years in prison, despite the fact that in the appeal of the victim Z. and his lawyer, K. The issue of excluding the above-mentioned mitigating circumstances was not raised. In such circumstances, the punishment imposed by the appellate instance on E. does not meet the requirements of article 52 of the Criminal Code and is subject to cancellation. Based on the above, the judicial Board for Criminal Cases of the Supreme Court overturned the decision of the appellate instance, upholding the verdict of the court of first instance against E. The petition of the convicted E. was granted.  

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