Sentencing although the court of first instance correctly determined that the defendant's previous convictions had been revoked, it did not correctly assign him the type of institution of the penitentiary system to serve the sentence
By the verdict of the Mugalzhar District Court of Aktobe region dated August 17, 2018:
S. previously, by the verdict of the Terekty District Court of the West Kazakhstan region dated March 17, 2005, he was found guilty by paragraphs "a, b" (old version) of Part 2 of Article 179 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), his property was confiscated and sentenced to 5 years in prison;
By the verdict of the Kyzylkoginsky District Court of Atyrau region dated July 17, 2013, he was found guilty by Part 1 of Article 183-1 of the Criminal Code (old edition) and sentenced to 2 years in prison, in accordance with the requirement of Article 63 of the Criminal Code, a suspended sentence of 1 year and 6 months was imposed;
By the verdict of the Makat District Court of Atyrau region dated November 11, 2016, he was found guilty by Part 1 of Article 197 of the Criminal Code, a penalty was imposed in the form of a fine of 424,200 tenge in the amount of 200 monthly calculation indices, convictions were canceled. - Found guilty by paragraph 3) of Part 4 of Article 188 of the Criminal Code, sentenced to 6 years in prison, found guilty by Paragraph 2) of Part 4 of Article 197,
Sentenced to 4 years in prison. According to Part 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment for the totality of criminal offenses into a more severe punishment, S. is finally sentenced to 6 years in prison. On the basis of Part 2 of Article 4 of the law" on amnesty in connection with the twenty-fifth anniversary of independence of the Republic of Kazakhstan", the term of his sentence was reduced to¼, S. was finally sentenced to imprisonment for a period of 4 years and 6 months.
Sentencing although the court of first instance correctly determined that the defendant's previous convictions were revoked
He is assigned to serve his sentence in the highest security institution of the Penal correction system. By the decision of the judicial board for criminal cases of the Aktobe Regional Court on September 26, 2018, the verdict was left unchanged. In his protest, the prosecutor general of the Republic of Kazakhstan indicated that the place of serving the sentence was incorrectly assigned to S. and asked to change the judicial acts, assign S. to serve the sentence in a medium-safe institution of the penitentiary system. The Condemned S. in his petition, he indicated that he did not agree with the sentencing part of the judicial acts, partially recognized the crime committed, sincerely repented, was the breadwinner of the family, did not recognize G., recognized G. only in absentia, there was no way to deal with them, changed the judicial acts, applied Article 55 of the criminal code and asked to reduce the amount of punishment. In accordance with Article 14, paragraph 5 of the International Covenant on Civil and Political Rights, adopted by resolution 2200a (XXI) of the United Nations General Assembly of December 16, 1966, any convicted of certain crimes has the right to demand that their charges and sentences be reviewed by law in the Supreme Court. The basis for Cassation review of judicial acts that have entered into legal force in accordance with the requirements of Paragraph 3) of Part 1 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) is violations of the law committed during the investigation or judicial review of the case, including improper determination of the regime of correctional institutions of the Penal correction system.
The guilt of the convicted S. is proved by the answers of the representative of the victim, the answers of accomplices E., Z., K. D., the answers of the witness R., A., G., B., U., protocols of inspection, recognition of the scene, receipt of evidence, verification and clarification, expert opinions and other case documents. Their legality and validity are not in doubt. In the response of the representative of the victim Y. to the court, according to the letter of law enforcement agencies, it was known that oil products were stolen at the Sinelnikovskoye field, since the subsoil and minerals contained in it are state-owned, the Ministry of Energy was instructed to calculate the material damage caused to the state, according to the conclusion of a special expert, material damage was caused as a result of criminal actions in the amount of 16,118,558 tenge. At the same time, according to the results of the examination No. 2449 dated November 12, 2016, it was established that the liquid samples according to density indicators are crude oil of Type 0 (super-light) oil, and according to the expert opinion No. 247 dated February 8, 2017, liquids from the Sinelnikovskoye field are light crude oil. The court of first instance correctly ranked the criminal activity of the convicted S. By Paragraph 3) of Part 4 of Article 188 of the criminal code and Paragraph 2) of Part 4 of Article 197 of the criminal code. The court of first instance appointed the convicted S. when imposing a sentence, taking into account the absence of circumstances aggravating the circumstances mitigating his criminal liability. Therefore, since there are no grounds for further mitigation of punishment using Article 55 of the criminal code, the petition of the convicted S. is not subject to satisfaction. However, the court of first instance correctly indicated that S.'s previous convictions were canceled, and incorrectly assigned to him the highest security institution of the penitentiary system for serving his sentence. In accordance with paragraph 2) of Part 5 of Article 46 of the criminal code, in medium-safe institutions of the Penal correction system: Persons Sentenced to imprisonment for more than two years for intentionally committing less serious, moderate or serious crimes, who have not previously served imprisonment; women who have committed particularly serious crimes, as well as in the case of recidivism of crimes; persons who have committed a fine, correctional labor, involvement in public works, restriction of freedom replaced by deprivation of liberty, should be assigned to serve in medium-safe institutions of the Penal correction system.
Since S. has a previous criminal record that has been abolished and is currently being prosecuted for committing a serious crime, he must be assigned to serve the sentence in a moderately safe institution of the Penal correction system. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan amended the judicial acts of local courts in relation to the convicted S. and canceled the part of the judicial acts that assigned S. to serve the sentence in the highest security institution of the Penal correction system. S. was assigned to serve his sentence in a medium-safe institution of the Penal correction system in accordance with paragraph 2 of Part 5 of Article 46 of the criminal code, and the rest of the judicial acts were left unchanged. The protest of the prosecutor general of the Republic of Kazakhstan was satisfied. The petition of the convicted S. was dismissed.
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