Punishment in the form of expulsion from the Republic of Kazakhstan

The sanction of parts 1 and 2 of Article 99 of the Criminal Code does not provide for additional punishment in the form of expulsion from the Republic of Kazakhstan by the verdict of the specialized interdistrict criminal court of the Karaganda region dated September 15, 2020: R., previously convicted: 1) on August 14, 2003, under part 3 of Article 24, part 1 of Article 96 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), he was sentenced to 6 years in prison, released after serving his sentence on May 30, 2009; 2) on April 30, 2014, according to part 3 of Article 103 of the Criminal Code, to 8 years in prison, by the resolution of the Shakhty City Court of the Karaganda region dated July 11, 2019, the unserved term of 2 years, 6 months, 20 days was replaced by restriction of freedom., - He was sentenced under part 1 of Article 99, part 3 of Article 24, paragraph 1) of part 2 of Article 99, part 4 of Article 58 of the Criminal Code to 22 years in prison to serve his sentence in an institution of the penitentiary system of emergency security, with forced expulsion after serving his sentence outside the Republic of Kazakhstan, with a ban on entry into the territory of the Republic of Kazakhstan for a period of five years. In accordance with article 60 of the Criminal Code, the unserved sentence was partially added to the sentence imposed by the court verdict of April 30, 2014 and the final sentence was 22 years and 6 months in prison, to be served in an institution of the criminal executive system of emergency security, with forced expulsion after serving the sentence outside the Republic of Kazakhstan, with a ban on entry into the territory of the Republic of Kazakhstan for a period of five years. On the basis of paragraph 2) of part 2 of Article 14 of the Criminal Code, R.'s actions were recognized as a dangerous recidivism of crimes.

Punishment in the form of expulsion from the Republic of Kazakhstan

The term of serving the sentence has been calculated since April 21, 2020, based on one day of detention until the verdict comes into force for one day of serving a custodial sentence in an institution of the penitentiary system of emergency security. 158 150 tenge were collected from R. in favor of K. and a state duty in the amount of 1581 tenge was paid to the state revenue. Moral damage in the amount of 5,000,000 tenge and a state duty in the amount of 1,389 tenge were collected from R. in favor of K.. Procedural costs in the amount of 379,891 tenge were collected from R. to the state revenue. A compulsory payment to the Victims Compensation Fund in the amount of 30 MCI was collected from R., which amounts to 83,340 tenge. The fate of the physical evidence is resolved in accordance with article 118 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC). By the verdict of the court, R. was found guilty of murder, that is, of unlawfully intentionally causing the death of another person, as well as of attempted murder of two persons. By the resolution of the Judicial Board for Criminal Cases of the Karaganda Regional Court dated November 24, 2020, the verdict was changed. The physical evidence– a SAMSUNG Galaxy A10s cell phone (with the TELE2 operator's subscriber number +7-747-187-93-41), was ordered to be returned to convicted R. The rest of the verdict remains unchanged. In the protest, the Prosecutor General of the Republic of Kazakhstan, without disputing the evidence of guilt and the correctness of the qualification of the convicted person's actions, asks the judicial acts to change and cancel the additional punishment imposed on R. in the form of expulsion from the Republic of Kazakhstan. Leave the rest of the judicial acts unchanged. In accordance with the requirements of paragraph 5) of part 1 of Article 485 of the CPC, an incorrect imposition of punishment is the basis for a cassation review of a judicial act that has entered into legal force. There are such grounds in the case. The court's conclusions on the evidence of R.'s guilt in the acts charged against him under the circumstances specified in the verdict are based on a body of evidence that was comprehensively, fully and objectively examined at the hearing and is not disputed by anyone.

The Court assessed and analyzed all the evidence examined in court in accordance with Article 125 of the CPC for their reliability, admissibility and relevance. R.'s actions were correctly qualified by the court under part 1 of Article 99, part 3 of Article 24, paragraph 1) of part 2 of Article 99 of the Criminal Code. The imposed punishment complies with the requirements of the criminal law, which defines the general principles of sentencing, is proportionate to the deed, the personality of the convicted person, the circumstances mitigating and aggravating criminal liability and punishment. At the same time, when imposing additional punishment in the form of expulsion from the Republic of Kazakhstan, the court violated the law. Thus, the sanction of parts 1 and 2 of Article 99 of the Criminal Code does not provide for additional punishment in the form of expulsion from the Republic of Kazakhstan. Article 51 of the Criminal Code also does not provide for the possibility of imposing such a punishment in cases where it is not specified in the sanction of the article under which the person was convicted. The Court of first instance, having imposed on its own initiative additional punishment in the form of expulsion of R. outside the Republic of Kazakhstan, violated the requirements of part 1 of Article 52 of the Criminal Code, according to which a person found guilty of committing a criminal offense is given a fair punishment within the limits established by the relevant article of the Special Part of the Criminal Code, and subject to the provisions of the General Part of the Criminal Code. The Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in relation to R. Canceled the appointment of R. additional punishment in the form of forced expulsion from the Republic of Kazakhstan with a ban on entry into the territory of the Republic of Kazakhstan for a period of 5 years. The rest of the judicial acts remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied. Thus, the sanction of parts 1 and 2 of Article 99 of the Criminal Code does not provide for additional punishment in the form of expulsion from the Republic of Kazakhstan.

Punishment in the form of expulsion from the Republic of Kazakhstan

Article 51 of the Criminal Code also does not provide for the possibility of imposing such a punishment in cases where it is not specified in the sanction of the article under which the person was convicted. The court of first instance, by imposing on its own initiative additional punishment in the form of R.'s expulsion from the Republic of Kazakhstan, violated the requirements of part 1 of Article 52 of the Criminal Code, according to which a person found guilty of committing a criminal offense is given a fair punishment within the limits established by the relevant article of the Special Part of the Criminal Code, and taking into account the provisions of the General Part of the Criminal Code. The Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of local courts in relation to R. Canceled the additional punishment imposed on R. in the form of forced expulsion from the Republic of Kazakhstan with a ban on entry into the territory of the Republic of Kazakhstan for a period of 5 years. The rest of the judicial acts remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied. 

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