Repeated secret theft of other people's property with entry into the premises

By the verdict of the Kokshetau City Court of the Akmola region dated June 10, 2019, S., who had no previous criminal record, was sentenced under paragraph 2) of part 3 of Article 188 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 3 years in prison to serve his sentence in an institution of the medium security penal system. The court found S. guilty of repeated secret theft of other people's property with entry into the premises. By the decision of the judicial Board for Criminal Cases of the Akmola Regional Court dated July 24, 2019, the verdict against S. was changed. His actions on episodes of theft of IP "T" property were reclassified from paragraph 2) of part 3 of Article 188 of the Criminal Code to part 2 of Article 187 of the Criminal Code and a fine of 100 monthly calculation indices was imposed. Based on part 3 of Article 58 of the Criminal Code, 3 years of imprisonment were finally imposed by absorbing a less severe punishment with a more severe one. In the protest, the Acting Prosecutor General asks the decision of the appellate instance to cancel due to the incorrect application of the criminal law, which led to the unjustified reclassification of S.'s actions to a less serious article. Having studied the case materials, the arguments of the protest, and having listened to the prosecutor who asked for the protest to be satisfied, the judicial board considers that the decision of the appellate instance is subject to change on the following grounds.

Repeated secret theft of other people's property with entry into the premises

The court of first instance found S. guilty of committing seven episodes of theft of other people's property with entry into premises. Including on February 16, 2019, S. illegally entered the store "A" and committed theft of property in the amount of 9 515 tenge, causing damage to IP "T" in the amount of 9 515 tenge. March 14, 2019 p . He again illegally entered the store "A" and committed the theft of property in the amount of 6,050 tenge, causing damage to IP "T" in the amount of 6,050 tenge. The Court of first instance qualified S.'s actions under paragraph 2) of part 3 of Article 188 of the Criminal Code. By the decision of the appellate instance of action S. according to the episodes of theft of property, IP "T" was reclassified to part 2 of Article 187 of the Criminal Code – petty theft committed repeatedly. The judicial board motivated its decision on retraining by the fact that the individual entrepreneur T. has a bank account and other banking details necessary for his entrepreneurial activity. In this regard, S. caused damage not to an individual, but to an organization, i.e. a legal entity in the amounts of 9,515 and 6,050 tenge, which is an insignificant amount, since the value of the property does not exceed 10 MCI. The Judicial Board considers that the conclusions of the court of appeal in this part are unfounded.

In accordance with Part 1 of Article 19 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), citizens have the right to engage in entrepreneurial activity without forming a legal entity, except in cases provided for by the Civil Code and other legislative acts. In Part 3 of Article 19 of the Civil Code, it is stated that the rules of the Civil Code, which regulate the activities of legal entities that are commercial organizations, apply accordingly to the entrepreneurial activity of citizens carried out without forming a legal entity, unless otherwise follows from the legislation or the nature of the legal relationship. According to part 1 of Article 2 of the Entrepreneurial Code of the Republic of Kazakhstan, entrepreneurship is understood as independent, initiative activity of citizens and legal entities aimed at generating net income through the use of property, production, sale of goods, performance of works, provision of services, based on the right of private ownership (private entrepreneurship) or on the right of economic management or operational management of a state enterprise. (state business). Entrepreneurial activity is carried out on behalf of, at the risk of, and under the property responsibility of the entrepreneur. In accordance with part 1 of Article 23 of the Entrepreneurial Code, business entities are citizens and non-governmental commercial legal entities engaged in entrepreneurial activity (private business entities), state-owned enterprises (state business entities). It follows from this that citizens are independent business entities and the state has granted them the right to carry out entrepreneurial activities based on the right of their private property, without forming a legal entity. Thus, the appellate instance unlawfully equated the individual entrepreneur with a non-governmental commercial organization and unreasonably reclassified the actions of S. on episodes of theft of IP "T" property from paragraph 2) of part 3 of Article 188 of the Criminal Code to part 2 of Article 187 of the Criminal Code.

In such circumstances, the judicial board considered it necessary to amend and cancel the decision of the judicial board for Criminal Cases of the Akmola Regional Court in relation to S. regarding the reclassification of his actions to part 2 of Article 187 of the Criminal Code, as well as the application of part 3 of Article 58 of the Criminal Code. Based on the above, the judicial Board for Criminal Cases of the Supreme Court changed the decision of the appellate instance in respect of S.: it canceled the reclassification of his actions from paragraph 2) of part 3 of Article 188 of the Criminal Code to part 2 of Article 187 of the Criminal Code, canceled the application of part 3 of Article 58 of the Criminal Code, and left the rest of the decision unchanged. The verdict of the first instance against S. was also changed. Based on paragraph 2) of part 3 of Article 62 of the Criminal Code, the time of S.'s detention Prior to the entry into force of the sentence, from March 17 to July 24, 2019, the term of the sentence served was calculated at the rate of one day in custody for one and a half days of imprisonment. The protest of the Acting Prosecutor General of the Republic of Kazakhstan is satisfied. 

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