The amnesty law does not apply to a person who has previously been pardoned or pardoned if he has committed intentional crimes again
By the verdict of the Aiteke bi district court of Aktobe region dated February 16, 2017, M. was previously convicted (his criminal record was canceled), sentenced to 3 years of imprisonment under Part 3 of Article 188 of the criminal code. In accordance with paragraph 2 of Article 4 of the law of the Republic of Kazakhstan dated December 13, 2016" on amnesty in connection with the twenty – fifth anniversary of independence of the Republic of Kazakhstan " (hereinafter referred to as the law on Amnesty), one quarter of the outstanding part of the main sentence was reduced, and convicted M. was sentenced to 2 years and 3 months of imprisonment. The punishment imposed on the basis of Article 63 of the criminal code is considered conditional, probation control is established and duties are assigned for the entire term of the sentence. The fate of physical evidence is decided in accordance with the requirements of Article 118 of the CPC. By the verdict of the court, M. was found guilty of theft, that is, embezzlement of other people's property in large quantities by preliminary conspiracy of a group of persons. The case was not considered on appeal. At the protest of the prosecutor general of the Republic of Kazakhstan, in relation to the convicted M., He asked to change the court's verdict due to improper imposition of punishment. The guilt of the convicted M. is fully confirmed by the evidence that was examined in detail, carefully and duly evaluated at the main trial, in particular, the testimony of the convicted person who admitted his guilt and the testimony of the victim zh., witness K. and the Protocols of inspection of the scene of the incident attached to the case, physical evidence and other The actions of the convicted M. are correctly differentiated by Part 3 of Article 188 of the criminal code. However, the court of first instance incorrectly applied the amnesty law to the convicted M. and did not impose a proper punishment on him. Paragraph 7 of Article 5 of the law of the Republic of Kazakhstan dated December 13, 2016" on amnesty in connection with the twenty-fifth anniversary of independence of the Republic of Kazakhstan " states that the force of this law does not apply to persons who previously applied amnesty or pardon, again committed intentional crimes.
The amnesty law does not apply to a person who has previously been pardoned or pardoned if he has committed intentional crimes again
According to the materials of the case, M. was sentenced to 2 years in prison under Paragraph "B" of Part 2 of Article 175 of the Criminal Code of Aktobe region by the decision of the Aiteke bi district court of Aktobe region dated September 13, 2001, with a probationary period of one year and a suspended sentence. However, he was released from the punishment imposed in accordance with Article 7 of the law of the Republic of Kazakhstan dated February 19, 2002 "on amnesty in connection with the tenth anniversary of independence of the Republic of Kazakhstan" dated March 13, 2002. Therefore, convicted M. belongs to the number of persons to whom the amnesty law was previously applied. The Judicial Board of the Supreme Court of the Republic of Kazakhstan on criminal cases amended the verdict of the court of first instance in respect of M., canceling the part that applied the law on amnesty to him, and considered M. sentenced to 3 years of imprisonment under Part 3 of Article 188 of the criminal code. The other part of the sentence was left unchanged, and the protest of the prosecutor general of the Republic of Kazakhstan was satisfied. By the verdict of the Almaly District Court of Almaty dated August 3,2016 T. previously convicted, found guilty by Part 1 of Article 371 of the criminal code, Part 1 of Article 366 of the criminal code, fined by Part 1 of Article 371 of the criminal code in the amount of 500 monthly calculation indices, i.e. 1,060,500 tenge, seized property by Part 1 of Article 366 of the criminal code, deprived of the right to hold positions in state institutions and organizations for life, fined fifty times the amount of a bribe, i.e. 7,000,000 tenge. According to Part 2 of Article 58 of the criminal code, with the imposition of a less severe punishment on a more severe one, property was confiscated, the right to hold positions in state institutions and organizations for life was deprived, and a fine was imposed in the amount of fifty times the amount of a bribe, that is, 7,000,000 tenge. The criminal case was not considered on appeal. According to the materials of the criminal case, convicted T. As a bailiff of the branch "territorial division of Bostandyk District" of the Department of Justice of Almaty, it was established that on May 27, 2016, the victim received a bribe in the amount of 140,000 tenge to cancel the decision on temporary restriction issued against R. The investigative body differentiated the actions of the convicted person by Part 2 of Article 366 of the criminal code, that is, taking a significant amount of bribes. Convicted by a court verdict T. being an official, he was found guilty of receiving a bribe for actions in favor of the bribe giver and improper performance of his official duties, which led to serious damage to the rights and legitimate interests of the victim. The guilt of the convicted T. was determined by the court of first instance without a doubt by the evidence collected in the case and studied in detail in the main trial. However, the conclusion of the court of first instance that T. did not receive a significant amount or a bribe for illegal actions, therefore, his criminal actions are subject to re-differentiation from Part 2 of Article 366 of the Criminal Code to Part 1 of Article 366 of the criminal code, is unreasonable and does not correspond to the case documents. According to the interpretation specified in Part 2 of Article 3 of the Criminal Code, a significant amount is recognized if the amount of a bribe is an amount of money from fifty to three thousand monthly calculation indices. The monthly calculation index for 2016 is fixed in the amount of 2,121 tenge, and fifty monthly calculation indices based on this amount will be 106,050 tenge. Therefore, since 140,000 tenge received by T. as a bribe exceeds fifty monthly calculation Indices, his actions must be differentiated by Part 2 of Article 366 of the criminal code. And the arguments of T. that the presence of property found by criminal means or acquired with funds found by criminal means is not established, therefore, he should not be assigned an additional penalty for confiscation of property are unfounded. According to Part 1 of Article 48 of the Criminal Code, confiscation of property is the compulsory gratuitous seizure and conversion into the property of the state of property owned by a convicted person, acquired with funds found by criminal means or found by criminal means, as well as property that is a weapon or means of committing a criminal offense. As an additional punishment of the sanction of Part 2 of Article 366 of the criminal code, the penalty for confiscation of the convicted person's property is provided. In this regard, the fact that T. did not identify the property found by criminal means or acquired with the funds found by criminal means cannot serve as a basis for the non-imposition of an additional penalty for confiscation of property on him. On the basis of the above, the Judicial Board of the Supreme Court of the Republic of Kazakhstan on criminal cases amended the verdict of the court of First Instance in relation to the convicted T., recognized him guilty by Part 2 of Article 366 of the Criminal Code, confiscated property owned, found by criminal means or acquired with criminal means, deprived him of the right to hold positions in state institutions and local self-government bodies, the National Bank of the Republic of Kazakhstan and its departments for life, in the amount of sixty times the amount of a bribe, that is, he imposed a fine in the amount of 8,400,000 tenge and finally imposed this penalty in accordance with the requirements of Part 3 of Article 58 of the criminal code. The rest of the sentence was left unchanged, and the prosecutor general's protest was partially satisfied.
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