Retrained from the completed theft to attempted murder
By the verdict of court No. 2 of Ust-Kamenogorsk, East Kazakhstan region, dated October 1, 2019: K. and A., who had no previous convictions, were sentenced to 2 years and 6 months of restriction of freedom under paragraph 1) of part 3 of Article 188 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code). By the verdict of the court, K. and A. were found guilty of theft, that is, the secret theft of someone else's property on a large scale, committed by a group of people by prior agreement. By the decision of the Judicial Board for Criminal Cases of the East Kazakhstan Regional Court dated November 13, 2019, the verdict was changed, the actions of K. and A. reclassified to part 3 of Article 24, under paragraph 1) of part 3 of Article 188 of the Criminal Code. The Prosecutor General of the Republic of Kazakhstan points out in the protest that the decision of the appellate instance is illegal, subject to cancellation due to the inconsistency of the court's conclusions with the actual circumstances of the case and the improper application of the criminal law, which led to an unjustified retraining of the actions of the convicted. Requests the decision of the Judicial Board for Criminal Cases of the East Kazakhstan Regional Court dated November 13, 2019 to cancel and retain the verdict of the court of first instance against the convicted K. and A. no change. Lawyer D., in a written objection, indicates that the arguments of the protest do not correspond to the circumstances of the case. K. and A. could not bring their actions to an end, since their actions were suppressed due to circumstances beyond their control, and they could not dispose of the stolen diesel fuel at their discretion. Requests to leave the decision of the court of appeal unchanged, and the Prosecutor General's protest without satisfaction. In the present case, the grounds for revoking the decision of the court of appeal in respect of K. and A. have been established.
Retrained from the completed theft to attempted murder
The court of first instance reliably established that K. and A. (hereinafter referred to as the convicts), being employees of the oil depot of P LLP, located at 1/1 Sovkhoznaya str., Ust-Kamenogorsk (hereinafter referred to as the tank farm), the first was the driver, the second was the acting operator, on August 27, 2019 at about 20At about 00 a.m., diesel fuel in the amount of 11.08 cubic meters was secretly stolen from tank No. 2 of the specified oil depot and transported to the base at 189/3 Aurora Street (hereinafter referred to as the base), where it was drained into two tanks. The actions of those convicted by the court of first instance were correctly qualified under paragraph 1) of part 3 of Article 188 of the Criminal Code as secret theft of other people's property committed by a group of persons by prior agreement. However, the court of appeal qualified their actions as attempted theft. The court of appeal motivated the reclassification of the convicts' actions by the fact that the crime they had committed was unfinished, since they had been detained at another base while draining fuel into tanks. In this regard, they were unable to complete their actions, namely, to dispose of the stolen property at their discretion as a result of the suppression of their criminal actions. These conclusions of the appeals board are erroneous and do not correspond to the actual circumstances of the case. Thus, it follows from the materials of the criminal case that, under the circumstances set out in the verdict, the convicts, while on the territory of the tank depot, drained diesel fuel from tank No. 2 into a fuel tanker of the MAZ brand (hereinafter referred to as the tanker) in the amount of 11.08 cubic meters for a total amount of 1,885,714 tenge and took it outside the protected territory of the tank depot. Then the stolen diesel fuel was transported to the base and drained into two tanks. After that, the director of LLP "P" S. arrived, who called the police.
According to K.'s testimony, they, K. and A., transported the stolen diesel fuel to the base and drained it into two tanks. Diesel fuel was planned to be stored in tanks, then, having found buyers, it was sold. The director of "P" S. LLP came to pick them up at the oil depot after they had finished emptying all the stolen diesel fuel into the second tank. It follows from the seizure protocol dated August 28, 2019, that a fuel tanker and 11,000 liters of diesel fuel were seized from two tanks located at the base. The representative of the victim Zh. He confirmed that the diesel fuel stolen by the convicts had been poured from the tanks located at the base and returned to the tank farm. In accordance with the requirements of paragraph 7 of the regulatory decree of the Supreme Court of July 11, 2003 No. 8 "On judicial practice in cases of theft", theft is considered completed if the property is seized and the perpetrator has a real opportunity to use and dispose of at his discretion. It has been objectively established in the case that the convicts carried out their criminal intentions to the end, as they first secretly stole diesel fuel, then took it out in a tanker truck from the protected area of the tank farm, moved it to another base, where they drained it into tanks they had rented in advance, thereby disposing of the stolen property at their discretion. In such circumstances, the court of appeal unreasonably reclassified the actions of the convicted persons from the completed theft to an attempt. Based on the above, the judicial Board for Criminal Cases of the Supreme Court overturned the decision of the court of appeal, upholding the verdict of the court of first instance against K. and A. The protest of the Prosecutor General of the Republic of Kazakhstan was satisfied.
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