Receiving a substantial bribe as a person authorized to perform government functions
Parts 2 and 3 of Article 55 of the Criminal Code contain competing rules of law providing for the procedure for determining the amount of punishment under certain conditions. The application of two norms in sentencing the same person in the same case is unacceptable by the Verdict of the District Court No. 2 of the Yessil district of Astana dated November 15, 2016. O., who had no previous criminal record, was sentenced under part 2 of Article 366 of the Criminal Code to 3 years in prison with confiscation of property owned by the convicted person. obtained by criminal means or acquired with funds obtained by criminal means, with life imprisonment for the right to hold positions in public service, with serving a sentence in a correctional colony of general regime. The sentence was calculated from September 27, 2016. By a court verdict, O. was found guilty of accepting a substantial bribe as a person authorized to perform government functions. By the resolution of the Judicial Board for Criminal Cases of the Astana City Court dated January 25, 2017, the verdict was changed. The sentence imposed on O. was reduced to 2 years and 3 months of imprisonment based on the application of the provisions of parts 2, 3 of Article 55 of the Criminal Code. Having studied the materials of the criminal case, the arguments of the protest, having listened to the statement of the prosecutor, who asked to cancel the decision of the court of appeal, and the lawyer, who considered it necessary to leave the judicial acts unchanged, the judicial board concluded that the protest was subject to partial satisfaction on the following grounds.
Receiving a substantial bribe as a person authorized to perform government functions
O.'s guilt in committing the incriminated act was established by a set of reliable and admissible evidence examined by the court and duly evaluated. O.'s actions were correctly qualified in accordance with Part 2 of Article 366 of the Criminal Code, the court's verdict was imposed taking into account the nature of the crime committed, the identity of the perpetrator, and meets the general requirements of the sentencing procedure. The court of appeal, when considering the case on the complaint of the convicted person, committed a violation of the criminal law, which resulted in an unjustified reduction in punishment. Parts 2 and 3 of Article 55 of the Criminal Code contain competing rules of law providing for the procedure for determining the amount of punishment under certain conditions. The application of two norms in the imposition of punishment in the same case against the same person is unacceptable. Within the meaning of the law, a special rule must be applied in the competition of legal norms governing the imposition of punishment. In this case, the provisions of part 2 of Article 55 of the Criminal Code relate to the general rule providing for the limitation of the maximum term of the most severe type of punishment, which can be imposed if there are circumstances mitigating criminal liability and punishment that are not provided for as a sign of a committed crime, and there are no aggravating circumstances. When committing a serious crime, this period may not exceed two thirds of the maximum term or the amount of the most severe type of punishment provided for by the sanction of the article. At the same time, the provisions of part 3 of Article 55 of the Criminal Code contain a special provision, namely, a limitation on the maximum term and amount of punishment that can be imposed if an expedited pre–trial investigation is conducted in the case. In this case, the term and amount of punishment may not exceed half of the maximum term or the amount of the most severe type of punishment and, moreover, do not contain restrictions related to the category of crimes. According to paragraph 9) of part 3 of Article 77 of the Constitution of the Republic of Kazakhstan, when applying the law, a judge must interpret any doubts in favor of the accused. Thus, in the competition of legal norms, the court of first instance correctly applied the law and imposed punishment on O. according to the rules of part 3 of Article 55 of the Criminal Code. The subsequent application by the court of appeal of the provisions of part 2 of Article 55 of the Criminal Code is not based on the law and is superfluous. The sanction of Article 366 of part 2 of the Criminal Code, according to which O. was found guilty, provides for a penalty of imprisonment for a period of 3 to 7 years, half of the maximum amount is 3 years and 6 months. Consequently, the sentence of 3 years of imprisonment imposed by the court of first instance on the convicted person corresponds to the limit set by part 3 of Article 55 of the Criminal Code.
The crime committed by O. belongs to the category of grave, there is no damage in the case, and therefore, according to part 2 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" (hereinafter referred to as the Amnesty Law), the unserved part of the sentence as of the date of entry into force of this Law The law is subject to reduction by one-fourth. The beginning of the sentence was calculated from September 27, 2016, on the day of the enactment of the Amnesty Law – December 14, 2016, the unserved sentence was 2 years, 9 months, 13 days. If the unserved portion is reduced by one-fourth, 2 years, 1 month, and 2 days should be determined for departure. Based on the above, the judicial board of the Supreme Court for Criminal Cases overturned the decision of the appellate instance and changed the verdict of the court of first instance in respect of O. Based on part 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" dated December 13, 2016, the unserved part of the sentence was reduced by one-fourth and finally 2 years, 1 month, 2 days of imprisonment in an institution of the medium-security penal system were determined to be served. The protest of the Prosecutor General of the Republic of Kazakhstan was partially satisfied.
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