Since there is no composition of a criminal offense in the act, the court sentence is canceled and the criminal case against the convicted person is terminated
By the verdict of the Kokshetau City Court of April 23, 2018: K. previously not convicted, sentenced to 3 years in prison by paragraphs 1), 3) of part two of Article 191 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code). He is assigned to serve his sentence in a medium-safe institution of the Penal correction system. R. not previously convicted, sentenced to 3 years and 6 months in prison by paragraphs 1), 3) of the second part of Article 191 of the criminal code. He is assigned to serve his sentence in a medium-safe institution of the Penal correction system. By the verdict of the court K. and R. a group of people conspired in advance, and the victim was found guilty of open embezzlement of K.'s property using force that was not dangerous to his life and health. By the decision of the Judicial Board of the Akmola Regional Court on criminal cases dated June 27, 2018, the verdict was changed, and on the basis of Article 63 of the criminal code, the punishment assigned to the convicted persons K. and R. was considered a suspended sentence and probation control was assigned. 35,000 tenge of the victim's open embezzlement was excluded from the convicts ' charges due to unproven evidence, and moral damage was reduced to 30,000 tenge. The rest of the sentence is left unchanged. In his protest, the prosecutor general of the Republic of Kazakhstan, due to the absence of any evidence proving K.'s guilt, asked to amend the judicial acts, terminate the case against him due to the absence of corpus delicti in K.'s actions, remove from R.'s charge the qualification mark "conspiring with a group of people" and consider the punishment assigned to him a suspended sentence on the basis of Article 63 of the criminal code. In the petition of the lawyer of the convicted K. T., He indicated that there was no corpus delicti in the actions of K., when the judge entered the hall and announced the verdict, the translator had a translation of the court verdict, therefore, the secret of sentencing was violated, and asked to terminate the case against him because there was no corpus delicti in the actions of K..
Since there is no composition of a criminal offense in the act, the court sentence is canceled and the criminal case against the convicted person is terminated
Since the criminal case is submitted to the Cassation judicial board with the protest of the prosecutor general, the petition of lawyer T. is subject to consideration at a meeting of the Cassation judicial board together with the protest. In accordance with paragraph 5 of Article 14 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. In accordance with paragraph 17 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4" on a court verdict " and subparagraph 9) of Paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, no one may be convicted only on the basis of their confession. In this regard, it should be borne in mind that the defendant's confession of guilt is based on the conviction only if his guilt is confirmed by the totality of other evidence collected in the case. In accordance with paragraph 18 of this resolution, in accordance with the presumption of innocence and Article 19 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the guilty verdict cannot be based on assumptions and must be confirmed by a sufficient set of clear evidence. All assumptions that arise in the case need to be investigated. Contradictions between the evidence are subject to identification and evaluation. Unresolved suspicions about the guilt of the defendant, as well as doubts arising in the application of criminal and criminal procedure laws, are subject to resolution in his favor. At the same time, in accordance with paragraph 12 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 4" on some issues of evaluation of evidence in criminal cases", it cannot be recognized as legal if the court's verdict is made only on the basis of the testimony of the defendant and the victim, which is not analyzed, Despite these requirements, K. the court's conclusions about the guilt of the victim K. for the open embezzlement of his property using force that is not dangerous to his life and health, conspiring as a group of people, were issued only on the basis of the testimony of the victim K., which is unstable, contradictory and not supported by other objective evidence. In the testimony of the victim K. on June 27, 2017, due to alcohol intoxication, he did not fully remember the events of that day, and when leaving the park, 3-4 people unknown to him were closed and seized a handbag (barsetka). K. In an additional response dated August 17, 2017, he testified that he recognized the nature of the species of K. from among the people who were closed to him. The victim K. could not remember how many people were closed to him on August 21 and 22, 2017, when he conducted a confrontation with R., K. In addition, the witnesses present to K. N., A., E., That is, in the testimony given by the employees of the cafe "Almaty", noted that he knew him well, being a regular customer, he repeatedly came to the cafe under the influence of alcohol, behaved inappropriately and hit other customers. The Convicted Person. pre-trial investigation, in court testimony, showed that the victim of alcohol abuse insulted K. and R., R. beat him in the face, he beat him twice, when he hit the mound and dropped his bag, and R. picked up his bag from the ground, then left, and when he left on the road, he saw the bag in R.'s hand. Evidence refuting the testimony of convicted persons about the absence of a preliminary agreement on embezzlement between them was not found either during the preliminary investigation or during the trial of the case. In the sense of criminal law, robbery is characterized subjectively only by direct intent. At this time, the guilty person understands the open ownership of someone else's property, knows in advance that as a result of his actions, the property will be transferred to his own hands, and wants this in order to get rich.
Since there is no composition of a criminal offense in the act, the court sentence is canceled and the criminal case against the convicted person is terminated
According to the materials of the criminal case, it is noted that K. did not know and did not see that R. embezzled the victim's property when he actually inflicted blows on the victim. At the time of the blow to the victim, only R. had an intention to embezzle property, and this was carried out by him himself. With such accurate data, there is an excess of an accomplice in accordance with Article 30 of the criminal code from all R. If, during the infliction of bodily harm to the victim by a group of persons, one of the participants has an intention to embezzleize the victim's property (the excesses of the corrupt participant), then his actions should be classified as embezzlement, and the actions of the participant, accordingly, as causing harm to the victim's health. According to the evidence studied in court, in the actions of K. There is not embezzlement, but only deliberate minor harm to the health of the victim. So K. he must be brought to administrative responsibility for his actions (article 73-1 of the code of administrative offenses of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code)). However, in accordance with Article 62 of the Administrative Code, the term of bringing K. to administrative responsibility has expired. If the act committed in accordance with the requirement of Paragraph 2) of the first part of Article 35 of the Criminal Code does not contain a criminal offense, then the criminal case is terminated. Since the actions of K. do not contain the composition of a criminal offense, the court verdict is canceled and the criminal case against him is subject to termination. A person acquitted in court in accordance with the requirement of the first part of Article 37 of the code of Criminal Procedure, as well as a criminal case against them in accordance with the requirements of the first part of Article 35 of this Code 1), 2), 5), 6), 7) a suspect, accused, defendant, on whom a decision of a court, a criminal prosecution body has been issued on termination on the grounds provided for in paragraphs 8) is subject to rehabilitation, that is, their rights are restored, and their rights and freedoms guaranteed by the Constitution of the Republic of Kazakhstan may not be restricted in any way. In accordance with the requirement of part one of Article 39 of the CPC, the body conducting criminal proceedings, making a decision on full or partial acquittal of a person, must recognize his right to compensation for harm. The judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan amended the judicial acts of local courts in relation to the convicted K. and R. and canceled the judicial acts that recognized K. guilty by paragraphs 1), 3) of part two of Article 191 of the criminal code. In accordance with paragraph 2) of the first part of Article 35 of the Criminal Code, the criminal case was terminated due to the absence of a criminal offense in the actions of K. In accordance with Chapter 4 of the Criminal Procedure Code, K. is recognized as entitled to compensate for damage caused by illegal actions of the body conducting criminal proceedings. The qualification mark "by conspiracy of a group of people" was excluded from the charge of the convicted R. In accordance with paragraph 1) of the second part of Article 191 of the criminal code, R. was sentenced to imprisonment for a period of 3 years and 6 months, with the application of Article 63 of the Criminal Code, to a suspended sentence. Probation control was established for the entire term of sentence, 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 lawyer T. was partially satisfied.
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