Protection of a suspect in causing serious harm to health

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Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan

Lawyer ..................... ........................ Phone number 8 …………………

acting in the interests of the convicted person .................. 02.09.19..... G.R.,

convicted under Part 1 of Article 106 of the Criminal Code of the Republic of Kazakhstan to 3 years in prison

THE PETITION

on the review of the verdict of the district court that has entered into legal force No.2 of the Bostandyk district of Almaty dated 06/25/20... of the year, resolutions of the judicial Board for Criminal Cases of the Almaty City Court dated 08/01/20... of the year

By the verdict of the district court No. 2 of the Bostandyk district of Almaty dated 06/25/20... ...................... He was found guilty of committing a crime under Part 1 of Article 106 of the Criminal Code of the Republic of Kazakhstan, and was sentenced to 3 (three) years in prison to serve his sentence in an institution of the medium-security penal system.

By the decision of the judicial Board for Criminal Cases of the Almaty City Court dated 08/01/20..., the verdict was left unchanged, the appeal was dismissed. I do not agree with these judicial acts against my client regarding the imposition of punishment for the crime committed, since they are illegal, unfounded, due to excessive severity and are subject to change. The crime committed by my client is classified as serious, according to Part 4 of Article 11 of the Criminal Code of the Republic of Kazakhstan. In accordance with paragraphs 1, 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated June 25, 2015 "On certain issues of criminal punishment", "when imposing criminal punishment, courts should strictly observe the general principles of sentencing specified in art. 52 of the Criminal Code of the Republic of Kazakhstan, that is, to take into account the nature and degree of public danger of the crime, the identity of the perpetrator, including his behavior before and after the commission of the crime, circumstances mitigating and aggravating responsibility and punishment, as well as the impact of the imposed punishment on the correction of the convicted person,""the court, when imposing punishment, must necessarily indicate in the verdict regarding each circumstances mitigating and aggravating the defendant's responsibility and punishment."

According to paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated June 25, 2015 "On certain issues of criminal punishment", "if the sanction of the article of the Criminal Code for which a person is found guilty provides for alternative types of punishments, courts should discuss the possibility of imposing a less severe one, bearing in mind that in accordance with According to the second part of Article 52 of the Criminal Code, a more severe type of punishment is imposed only if a less severe type of punishment cannot achieve the goals of punishment."

Contrary to the requirements of the law, the court, when sentencing K. Kozhamzharov, He did not take into account the requirements of Article 53 of the Criminal Code of the Republic of Kazakhstan, which led to the imposition of unfair, excessively harsh punishment, while not applying an alternative type of punishment not related to imprisonment. In addition, the courts did not take into account such mitigating circumstances as voluntary compensation for damage caused by a crime, positive characteristics from my place of work, from my place of residence, my client's cooperation with the investigation, reconciliation with the victim, who had no previous convictions, as well as sincere repentance. At the court hearing, the victim petitioned for a non-custodial sentence. In accordance with paragraph 8 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan No. 13 dated December 19, 2003 "On the practice of considering criminal cases on appeal", "taking into account the requirements of Part 1 of Article 424 of the CPC, the court of appeal, when considering a case on a complaint or protest, is obliged, within its competence, to check how comprehensively, fully and objectively the circumstances of the case have been investigated. in relation to each convicted person, the correctness of the qualification of the crime, the conformity of the punishment to the deed.       In accordance with part 2 of Article 426 of the CPC, the appellate instance, upon detection of violations of the rights and legitimate interests of convicted persons, regardless of the arguments of the complaint and protest, has the right to make appropriate changes to the verdict (resolution) aimed at improving the situation or to recognize the verdict (resolution) as illegal and cancel.

In cases where there are grounds for revoking or changing a sentence (resolution) against persons about whom a complaint or protest has not been filed, the court of second instance is obliged in the introductory part of the resolution to provide information about the identity of this convicted person, indicate under what law, to what measure of punishment he was sentenced, with reference that the case against him It is considered in accordance with part 2 of Article 426 of the CPC." The severity of a criminal offense depends on the crime committed (Article 11 of the Criminal Code of the Republic of Kazakhstan). In turn, the personality of the convicted person is characterized by: his age, gender, the form of guilt in committing a crime, the presence of a relapse, a dangerous relapse of crimes on his part, his mental state at the time of the crime, the stage of criminal activity, the type of complicity in the crime, circumstances aggravating or mitigating criminal liability and punishment. It is the combination of these factors that is taken into account by the court of appeal when determining to what extent the punishment imposed by the court of first instance corresponds to the severity of the crime and the personality of the convicted person, whether it is excessively mild or excessively harsh, that is, clearly unfair.

The Judicial Board for Criminal Cases of the Almaty City Court did not pay due attention to this case, contrary to the requirements of the law obliging the higher authority to eliminate the violations and make up for the shortcomings, ignored the arguments of the defense set out in the appeal and duplicated the conclusions of the court of first instance, issued an unlawful ruling, finding no grounds to change the illegal and unjustified verdict of the district court.. Thus, the court of first instance and the court of appeal, when sentencing my client, allowed the discrepancy between the punishment of the severity of the criminal offense and the personality of the convicted person. 53 of the Criminal Code of the Republic of Kazakhstan, providing for circumstances mitigating criminal liability and punishment: the commission of a criminal offense for the first time or a crime of minor or moderate gravity for the first time due to an accidental combination of circumstances, which led to the imposition of unfair, excessively harsh punishment by the court. According to P. 24 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the procedure for criminal proceedings in the Cassation instance" No. 5 dated June 29, 2017, "the grounds for revoking or changing the verdict are the circumstances specified in Article 433 of the CPC. The court of cassation instance, without sending the case for a new judicial review, has the right to change the verdict based on the arguments set out in the prosecutor's protest or the victim's petition."

Based on the above, guided by Articles 484, paragraph 3 of Part 1 of Articles 485, 486, 488, paragraph 1 of Part 1 of Article 491, paragraph 2 of Part 7 of page 494 of the Criminal Procedure Code of the Republic of Kazakhstan,

ask:

To conduct a preliminary examination of the petition with the request for materials of the criminal case;

2. To submit the petition with the case for consideration at the court session of the cassation instance;

3. The Verdict Of The District Court No.2 of the Bostandyk district of Almaty dated July 25, 2018, the decision of the Judicial Board for Criminal Cases of the Almaty City Court dated 08/01/2018 to amend and impose punishment in the form of a minimum term of restriction of liberty;

Lawyer   ………

I have read and support the complaint of the defender....... "___" August 20...

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