The absence of circumstances aggravating criminal liability and punishment is not taken into account

By the verdict of the Zhanaozen City Court of Mangistau region dated December 15, 2017: B. not previously convicted, sentenced to 4 years in prison, Part 1 of Article 125, Part 5 of Article 28 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), serving the sentence in a medium – safe institution of the Penal correction system. By the verdict of the court, B. was found guilty of assisting in the abduction of a person.  By the decision of the Judicial Board of the Mangistau regional court for criminal cases dated February 22, 2018, the verdict was left unchanged. In the protest of the prosecutor general, it was noted that the judicial investigation was conducted in violation of the requirements of Article 24 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code), that the convicted B. conspired with a group of persons and, with selfish motives, helped to kidnap the victim A. I indicated that D. was fully substantiated by the testimony and other evidence given during the pre-trial investigation, as well as that B. was given to the court for conspiring with a group of persons in advance and assisting in the abduction of a person with selfish motives, therefore, the court's conclusions on B.'s non-participation in the commission of criminal offenses of unlawful intentional death combined with the abduction of the victim do not correspond to the actual circumstances of the case, and asked to cancel the judicial acts and refer the criminal case to the court of Appeal for a new judicial review. However, the prosecutor general in the protest asked to refer the criminal case to the appellate instance for a new judicial review, but did not indicate to the court the grounds to be studied during the new consideration of the case.

The absence of circumstances aggravating criminal liability and punishment is not taken into account

In this regard, the judicial board considers that it is not necessary to send a criminal case to the court of Appeal for reconsideration. Because he is justified by the arguments of the prosecutor general's protest against the disagreement of judicial acts against B. with the part of the differentiation of his actions. As it turned out from the materials of the criminal case, Part 5 of Article 28 of the criminal code B. Part 2 of Article 125, that is, conspiring with a group of people in advance and with selfish motives, the victim was transferred to the court for assistance in the abduction of A. The court of First Instance convicts T. I concluded from the testimony of D. that B. did not conspire to kidnap the victim in advance, that he only helped to kidnap the latter by providing him with information, instructions, and differentiated the actions of the convicted B. from Part 5 of Article 28, Part 1 of Article 125 of the criminal code. This conclusion of the court of First Instance was agreed by the court of Appeal. However, this conclusion of the courts of first and appellate instance does not correspond to the materials of the case and the circumstances established in court. In accordance with paragraph 3 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001 No. 2 "on some issues of application by courts of legislation on banditry and liability for committing other crimes with participation in a crime", when qualifying the actions of the guilty persons on the grounds of committing a criminal offense " in a group, that is, it is necessary to establish that there was collusion of these persons directly before the start of actions aimed at committing a criminal offense, at least before one of the performers performed the objective side of the composition of the criminal offense. In cases where the common power of two or more persons is combined to commit a crime, and the actions of each of the participants together are a necessary condition for the commission of the act by the other participants together and are causally related to the common criminal result caused by the actions of all together participants in accordance with the preliminary distribution of roles, the commission of a criminal offense "conspiring in groups" is differentiated according to the sign of committing a criminal offense. In such cases, the participation of two or more performers in a criminal offense is not mandatory; in the presence of identical participants of another type, one performer is sufficient. In accordance with the said normative resolution, the liability of the organizer, instigator or helper arises under the relevant article of the Criminal Code, which provides for punishment for this criminal offense, with reference to Article 28 of the Criminal Code, except in cases when they are simultaneously performers of crimes. In accordance with Part 1 of Article 125 of the criminal code, each evidence must be evaluated in terms of its relevance, admissibility, reliability, and all collected evidence in its totality is sufficient to resolve a criminal case.

The absence of circumstances aggravating criminal liability and punishment is not taken into account

The fact that convicted B. conspired with a group of people in advance and, with selfish motives, helped to kidnap victim A. is evidenced by the testimony of convicted D. during the pre-trial investigation. In the testimony of the convicted D. as a witness during the pre-trial investigation, B. introduced him to T., at his request came to Aktau and met T. at the airport.  During the meeting, T. told him that A. was involved in the death of his child, and promised to give him 4,000,000 tenge if he met him.  He Is B. I told T. that he would go to the city of Zhanaozen to meet A., where T. would give him 1,500,000 tenge, and their meeting would take place inside the house. At that time, B. entered between them and was categorically against the fact that the meeting would take place indoors.  Finally agreed with the opposite opinion of et al.  When he drove A. along Fifth Street and asked for the agreed 1,500,000 tenge, T. said that he would take the money from B., and later, when he asked B. for the money, he knew nothing about the last money, he would talk about it later. And the next day, when he asked his question, he told me about the murder of B. A. In addition, the guilt of the convicted person is fully proven by the testimony of K. as a witness, the confrontation between witness D. and suspect T., witnesses D. and K., The Protocols of verification and clarification of the testimony of T. at the scene, additional testimony of suspect H., testimony of suspects A. and D.. However, in the main trial, D. and T. changed their testimony during the pre-trial investigation.  Lower courts during the pre-trial investigation D. in connection with the fact that T. was not found to be harassed by police officers, the investigative actions were carried out with the participation of the defense attorney, their testimony during the pre-trial investigation was correctly taken as the basis of the indictment. It is the mentioned testimony and the totality of the above evidence that clearly proves not that B. helped to kidnap a person, but rather that he conspired with a group of people in advance and helped to kidnap the victim out of selfish motives.

Therefore, the conclusions of the courts of first and appellate instance that B. only helped in the abduction of a person are unfounded. In addition, according to the verdict of the Specialized Interdistrict court for criminal cases of Mangistau region dated August 11, 2017, on the fact of kidnapping victim A., He was convicted by paragraphs 1), 8) of Part 2 of Article 125 of the Criminal Code of the Republic of Kazakhstan, paragraph 1) of Part 2 of Article 125 of the Criminal Code of the Republic of Kazakhstan and others. In this context of the case, due to the fact that the court of first instance incorrectly qualified the actions of the convicted person, that is, due to the incorrect application of criminal and criminal procedural laws, the judicial collegium on criminal cases amended the judicial acts in this case and concluded that the actions of B. are subject to qualification of Part 5 of Article 28, Part 2 of Article 125 of the Criminal Code., he did not establish the circumstances aggravating his criminal liability and punishment. Paragraph 3) of Part 2 of Article 55 of the Criminal Code states that in the presence of mitigating circumstances and in the absence of aggravating circumstances that are not provided for as a sign of a committed crime, the term or amount of the main type of punishment may not exceed two-thirds of the maximum term or amount provided for in the relevant article of the special part of this criminal code-in the commission of a particularly serious crime. Part 2 of Article 125 of the Criminal Code provides for a prison sentence of up to twelve years. On the basis of the above, the Judicial Board of the Supreme Court of the Republic of Kazakhstan on criminal cases amended the judicial acts of local courts in relation to the convicted B. His actions were again differentiated from Part 5 of Article 28 of the criminal code, Part 1 of Article 125 of the criminal code, Part 5 of Article 28 of the criminal code, Part 2 of Article 125 of the criminal code, with this article imposing a sentence of imprisonment for 7 years. The rest of the judicial acts were left unchanged, and the protest of the prosecutor general of the Republic of Kazakhstan was partially satisfied. 

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