Punishment for attempted crime
By the verdict of the District Court No. 2 of the Medeu District of Almaty dated August 19, 2016, K. was previously convicted, Part 3 of Article 24 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code), Part 3 of Part 4 of Article 188, conditionally convicted on the basis of Part 3 of Article 63 of the criminal code for 5 years of imprisonment, probation control is established for the entire term of imprisonment. By the court verdict K. he was found guilty of theft, that is, attempted secret embezzlement of other people's property by a group of persons in a particularly large amount, but the crime was not brought to the end under circumstances beyond his control. By the decision of the Karmakshinsky District Court of Kyzylorda region dated February 17, 2017, subparagraph 2) of Paragraph 1 of Article 4 of the law of the Republic of Kazakhstan dated December 13, 2016 "on amnesty in connection with the twenty-fifth anniversary of independence of the Republic of Kazakhstan" was applied to convicted K., and the sentence of August 19, 2016 was reduced by half of the outstanding part of the sentence assigned to him, that is, 2 years 5 Months 2 days. The case was not considered in the appeal instance. In the submission of the chairman of the Supreme Court, the court in relation to the convicted K. changed the sentence due to improper application of the criminal law and asked to reduce the term of punishment assigned to him on the basis of articles 55,56 of the Criminal Code, leave the rest of the sentence unchanged. Hearing the words of the judge, who set out the grounds and motives given in the submission, in support of the submission, asked to change the court verdict against K. and reduce the term of punishment assigned to him due to improper application of the criminal law, the court board, having familiarized with the materials of the criminal case and the submission, came to the following decision.
Punishment for attempted crime
The guilt of the convicted K. on the commission of the crime against him is fully confirmed by the totality of evidence that has been detailed, carefully checked and duly evaluated in the main trial, and it is not disputed in the submission either. Thus, the actions of the convicted person are correctly differentiated by Part 3 of Article 24, paragraph 3) of Part 4 of Article 188 of the criminal code. However, the arguments expressed in the submission of the chairman of the Supreme Court are justified. As follows from the case materials, the pre-trial investigation in this case was completed in an accelerated manner on the basis of Article 190 of the Criminal Procedure Code of the Republic of Kazakhstan. The term or amount of the main type of punishment for a criminal offense committed in cases of accelerated pre-trial investigation in accordance with the requirements of Part 3 of Article 55 of the criminal code may not exceed half of the maximum term or amount provided for in the relevant article of the special part of this code. Part 7 of this article provides that in case of imposition of punishment for attempted crime, the limits specified in parts two and three of this article shall be determined taking into account the provisions of Article 56 of this code. And, in Section 3 of Article 56 of the Criminal Code, a criminal case was initiated for the investigation of a criminal case in Article tiisti of the special part of this code, which determines the periodicity or amount of punishment for the investigation of a criminal case."I don't know," he said. Similarly, similar requirements are provided for in paragraph 7 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4" on some issues of imposing criminal penalties". However, on the part of the court of first instance, the above legal requirements were not observed. So, the sanction of Part 4 of Article 188 of the Criminal Code provides for a sentence of up to 10 years in prison. In such a situation, the convicted K. The term of the sentence of imprisonment, which must be imposed by Part 3 of Article 24, paragraph 3) of Part 4 of Article 188 of the criminal code, may not exceed 3 years and 9 months on the basis of Part 3 of Article 56 and Part 3 of Article 55 of the criminal code. Thus, the court's verdict is subject to change due to improper application of the criminal law, the amount of punishment imposed by paragraph 3) of Part 4 of Article 188, Part 3 of Article 24 of the criminal code in relation to the convicted person is subject to reduction. At the same time, K. believes that when applying the amnesty law in the execution of the sentence and reducing the unserved part of the sentence to half, the court of first instance calculated the sentence imposed on him by the sentence for 5 years of imprisonment, however, since the sentence is currently subject to a reduction to 3 years and 9 months, the judicial board considers that the term to be reduced due to the amnesty law is subject to recalculation. At the same time, the board takes into account that before the sentencing of the convicted K., a preventive measure of detention was applied and the term is subject to accrual of one day to the term of punishment in accordance with Part 3 of Article 62 of the criminal code. So, as of the date of entry into force of the amnesty law, that is, December 14, 2016, the unserved part of K.'s sentence of imprisonment is 3 years 7 Months 3 days, including his stay in custody for 1 month 27 days before the sentence, so half of the unserved part of his sentence of imprisonment is 1 year 9 months 16 days. On the basis of the above, the Judicial Board of the Supreme Court of the Republic of Kazakhstan on criminal cases changed the verdict of the court of first instance against the convicted K. the term of the sentence of imprisonment imposed by paragraph 3 of Article 24, Part 3 of Part 4 of Article 188 of the criminal code, on the basis of Part 3 of Article 56, Part 3 of Article 55 of the criminal code, was reduced to 3 years and 9 months. In accordance with subparagraph 2) of Paragraph 1 of Article 4 of the amnesty law, K. 1 year 9 months 16 days are considered sentenced to imprisonment, the punishment imposed in accordance with Article 63 of the criminal code is recognized as conditional, and probation control is established for the entire appointed period of imprisonment. The remaining part of the sentence was left unchanged, and the proposal of the chairman of the Supreme Court of the Republic of Kazakhstan was satisfied.
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