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No one may be discriminated against in any way on the grounds of origin, social, official and property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances when imposing criminal punishment.
By the verdict of the Sarykolsky District Court of Kostanay region dated December 2, 2016, O. was sentenced under part 3 of Article 188 of the Criminal Code to 3 years in prison with confiscation of property acquired with funds obtained by criminal means, while serving his sentence in a correctional colony of general regime. By the resolution of the Judicial Board for Criminal Cases of the Kostanay Regional Court dated January 19, 2017, the verdict was changed. On the basis of paragraph 2 of Article 4 of the Law of the Republic of Kazakhstan dated December 13, 2016 No. 27-VI "On Amnesty in connection with the twenty-fifth anniversary of Independence of the Republic of Kazakhstan." The unserved part of the sentence of 2 years, 9 months, and 16 days was reduced by one-fourth and 2 years, 1 month, and 4 days of imprisonment were determined to be served. The rest of the verdict remains unchanged. The court found O. guilty of committing the secret theft of other people's property by a group of persons by prior agreement, repeatedly, on a large scale. Having studied the materials of the criminal case, discussed the arguments of the petition, listened to lawyer A., who supported the arguments of the petition, the conclusion of the prosecutor, who believed the petition to be satisfied, the judicial board considers that judicial acts are subject to change on the following grounds. The court's conclusions on the proven guilt of convicted O. in the act charged against him under the circumstances set out in the verdict are based on evidence comprehensively, fully and objectively examined at the court session, corresponds to the factual circumstances of the case and are not disputed in the petition. The evidence confirming the convict's guilt has been obtained in accordance with the procedure established by the Criminal Procedure Law, is reliable, acceptable and collectively sufficient to resolve the criminal case. The verdict gives them a proper assessment. The actions of convicted O. under part 3 of Article 188 of the Criminal Code were correctly qualified by the court. At the same time, the arguments of the defender about the excessive severity of the punishment imposed on O. deserve attention. In accordance with parts 2.3 of Article 52 of the Criminal Code, punishment is applied in order to restore social justice, correct the convicted person and prevent the commission of new crimes by both convicted and other persons, and when appointing it, the nature and degree of public danger of the criminal offense, the identity of the perpetrator, including his behavior before and after the commission of the offense, the circumstances, mitigating and aggravating liability and punishment, the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family or persons, those who are dependent on him.
However, the judicial authorities specified the requirements of the law when determining the type and amount of punishment in relation to convicted O. not complied with. The Court of first instance, discussing the possibility of applying Article 63 of the Criminal Code, as requested by the prosecutor involved in the case and the defense, when deciding that it was impossible to impose a suspended sentence, motivated its decision by the fact that O.'s repentance for what he had done and his taking measures to compensate for part of the damage caused were formal. However, it follows from the case file that Fr. On the day of sentencing, he appeared to the police himself, confessed to the other participants in the crime, who were given suspended sentences, and confirmed them during confrontations. There is virtually no damage in the case, as it was reimbursed during the proceedings in another case, but O. subsequently paid the relatives of the convicted N. the amount to compensate for the damage caused, which is confirmed by V.'s receipt dated November 15, 2016 and her testimony given in court. In addition, the courts did not take into account that Fr. He has two dependent minor children, has not previously been brought to criminal responsibility, as a person does not pose a public danger, which significantly affects the definition of the type and amount of punishment not related to imprisonment. In accordance with article 39 of the Criminal Code, punishment is applied in order to restore social justice, as well as to correct the convicted person, but it is not intended to cause physical suffering or humiliation of human dignity. In this criminal case, the persons who committed the theft in a group with O. were sentenced to probation under article 63 of the Criminal Code by the verdict of the same court dated September 30, 2016. In such circumstances, the appointment of O., one of the five accomplices to actual imprisonment, cannot be considered fair, consistent with his personality and the nature of the crime he committed. In this regard, the board considers it possible in relation to the convicted Fr. to apply Article 63 of the Criminal Code, the sentence imposed by the court, taking into account its reduction by the appellate instance to 2 years, 1 month, 4 days of imprisonment on the basis of paragraph 2 of Article 4 of the Law of the Republic of Kazakhstan "On Amnesty in connection with the twenty-fifth anniversary of Independence of the Republic of Kazakhstan", is considered conditional with the establishment of probation control for the entire term. In accordance with part 4 of Article 63 of the Criminal Code, when imposing a suspended sentence, confiscation of property is not imposed. Based on the above, the judicial board of the Supreme Court for Criminal Cases changed the judicial acts of the local courts in relation to O., appointed by the court of O. The sentence of 2 years, 1 month, and 4 days of imprisonment in accordance with article 63 of the Criminal Code was decided to be considered conditional. On the basis of part 3 of Article 63 of the Criminal Code, probation control has been established for the convicted person for the entire term of the imposed sentence. O. is charged with the obligation not to change his permanent place of residence or work without notifying the authorized state body responsible for monitoring the behavior of the convicted person. The additional penalty of confiscation of property has been abolished. The convicted O. was released from custody immediately. The rest of the judicial acts remained unchanged. Lawyer A.'s petition was granted.
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