Replacement of the imposed punishment with a more lenient form by a court verdict

Judge of the judicial board for criminal cases of the Almaty City Court S.V. Yakovleva, under secretary A. Bekenov, with the participation of prosecutors E. Kurakbaev and E. Sergeanov, representative of the probation service of the Bostandyk district of Almaty A.A. Zhasylykpaeva, convicted Zh.A.E.  and her defender, lawyer Zhanispaev N.K., the victim T.A.K., reviewed in open court, using sound and video recording, the material received by the convict's private complaint against the decisions of the district court no.2 of the Bostandyk district of Almaty dated 05/11/2022 on the refusal to satisfy the submission of the head of the Probation department of the Bostandyk district of Almaty on commuting the punishment with a milder type of punishment in relation to the convicted Zh.A.E. After the expiration of the suspended sentence, the head of the probation department of the Bostandyk district of Almaty appealed to the court with a proposal to replace the imposed punishment with a more lenient type of punishment for the convicted Zh.A.E. In its decision, the court of first instance motivated its refusal by the fact that the debt of the convicted person under the court verdict to the victim T.A.K. amounted to 8,440 000 tenge. In a private complaint, disagreeing with the court's ruling, the convict indicated that she had promptly appeared on a call to the probation service to report on her behavior, had not allowed violations of the rules of serving her sentence, had not violated public order, and had not been brought to administrative responsibility. He has no criminal record with the police. There were no complaints from neighbors. She is engaged in the education of her minor children, one of whom is under two years old, and is taking all measures to compensate for major damage. T.A.K. reimbursed the damage in the amount of 2,300,000 tenge. She took care of a newborn child for up to three years, so she was physically unable to fully pay off the damage. The court did not take into account the fact that for two years a quarantine regime had been in effect in the Republic of Kazakhstan in connection with the outbreak of the Covid-19 pandemic. She is currently six months pregnant. She undertook to repay the debt owed to the victim. She asked to cancel the resolution in full and adopt a new resolution, which would satisfy the idea of replacing the imposed punishment with a milder type of punishment, and replace the punishment with restriction of freedom. After hearing the statements of the convict and her lawyer, who supported the arguments of a private complaint, the victim, who asked not to deprive the convict of freedom, the representative of the probation service and the prosecutor, who believed the court's decision to cancel, satisfy the complaint and the representation of the probation service, having examined the material, the judicial board for criminal cases finds that the decision should be canceled in view of the inconsistency of the conclusions of the court set out in the decision, the factual circumstances of the case. Thus, in accordance with Part 3 of Article 74 of the Criminal Code, after the expiration of the suspended sentence or in cases of death of a child or termination of pregnancy, the court, depending on the behavior of the convicted person, may release him from serving his sentence or replace the imposed punishment with a milder type of punishment or decide to send the convicted person to an appropriate institution for serving punishments.

 

As follows from the materials of the convict's personal file, she took measures to enforce the sentence in terms of her duties to compensate for damage. In particular, she reimbursed the damage to the victim A.E.K. in full, to the victim T.A.K. - partially in the amount of 2,300,000 tenge, paid off the procedural costs in full. The behavior of the convicted person during the period of postponement of punishment indicates her desire for correction, which led the board to believe that the goals of punishment against her can be achieved by milder punitive means than imprisonment. In such circumstances, based on the requirements of the law, the totality of information about the behavior of the convicted person, the submission of the head of the joint venture to replace the punishment with a milder type of punishment in relation to the convicted person is subject to satisfaction, the private complaint of the convicted person is subject to satisfaction. At the same time, it is necessary to take into account the served sentence from 09/05/2019 to 09/10/2019, from 03/13/2020 to 04/17/2020, based on one day of detention for one and a half days of serving a sentence of imprisonment in medium security institutions. It is also necessary to set off the time served after the entry into force of the sentence, from 04/17/2020 to 07/02/2020, without taking into account the specified multiplicity coefficients, since it is not applied when deciding whether to offset the time served after the sentence enters into force. Guided by art. art. 431 h. 1 p.7, 443, 444 of the CPC, the judicial board for criminal Cases, RULED: District Court decision no.2 of the Bostandyk district of Almaty dated 05/11/2022 on the refusal to satisfy the submission of the head of the probation department of the Bostandyk district of Almaty to replace the punishment with a milder type of punishment for the convicted Zh.A.E., to cancel, the submission of the head of the probation department of the Bostandyk district of Almaty, to satisfy. Replace the assigned Zh.A.E. punishment by the verdict of the district court No.2 of the Bostandyk district of Almaty under Article 190, part 3, paragraph 1.4 of the Criminal Code of the Republic of Kazakhstan in the form of imprisonment for a period of 3 (three) years for restriction of liberty for a period of 3 (three) years. Establish probation control for the entire term of serving a sentence, assign duties provided for in Article 44 of the Criminal Code of the Republic of Kazakhstan: report to the probation service for registration within 10 days from the date of entry into force of the sentence.;  not to change his permanent place of residence, work, and also not to leave the area of his place of residence - without notifying the authorized state body responsible for monitoring his behavior; to report to the probation service for registration and participation in a preventive conversation. Explain to the convicted person that in case of malicious evasion from serving a sentence, the unserved term of restriction of liberty is replaced by a penalty in the form of imprisonment for the same period. At the same time, the time of serving the restriction of freedom is counted in the term of imprisonment at the rate of one day of imprisonment for one day of restriction of freedom, taking into account the provisions of Article 46 of the Criminal Code of the Republic of Kazakhstan. Control over the behavior of the convicted person is entrusted to the probation service of the penitentiary inspectorate at their place of residence. The term of probation control is calculated from the day the convicted person is registered with the probation service. 

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