The cancellation or removal of a criminal record cancels all legal consequences related to a criminal record, with the exception of restrictions imposed by an additional type of punishment imposed for life.

By the verdict of the court No. 2 of the city of Taraz, Zhambyl region, dated December 6, 2017, Ts., previously convicted: 1) on May 15, 2003, under part 1 of Article 259 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the CC), to 1 year of imprisonment; 2) on November 7, 2003, under part 1 of Article 321 of the CC, to 2 years and 6 months of imprisonment; 3) on February 9, 2006, under Article 360 of the CC, to 2 years of imprisonment; 4) on November 30, 2007, under part 2 of Article 360 of the Criminal Code, to 3 years and 4 months of imprisonment; 5) on December 24, 2013, according to paragraph "b" of part 2 of Article 178, according to paragraph "b" of part 2 of Article 175 of the Criminal Code, to 3 years of restriction of freedom, by a decree of September 15, 2014, the unserved part of the restriction of freedom was replaced by 1 year 9 months 25 days of imprisonment, released, - he was sentenced on July 8, 2016, in accordance with paragraph 2 on serving his sentence, part 2 of Article 188 of the Criminal Code to 2 years in prison with confiscation of property owned by the convicted person, obtained by criminal means or acquired with funds obtained by criminal means, as well as property that is an instrument or means of committing a criminal offense, with serving the sentence in the institution of the maximum security penal system. By the verdict of the Ts court. He was found guilty of secretly stealing silverware worth 100,000 tenge from the Central Deli shopping center on September 18, 2017 and secretly stealing a TSD device worth 220,000 tenge from the Camomile store on September 22, 2017. The verdict was not reviewed on appeal. In the protest, the Prosecutor General asks to change the verdict and appoint TS. serving a sentence in an institution of the medium-security penal system and abolish the confiscation of property.

The court, referring to paragraph 3 of part 5 of Article 46 of the Criminal Code, appointed Ts. to serve his sentence in an institution of the maximum security penal system, justifying his decision by saying that he had previously been sentenced to imprisonment. However, at the time of Ts.'s commission of this crime, his convictions from May 15, 2003, November 7, 2003, February 9, 2006, and November 30, 2007, in accordance with paragraph "d" of part 3 of Article 77 of the Criminal Code (as amended in 1997) have been expunged. By the verdict of the court No. 2 of the city of Taraz dated December 24, 2013, Ts. was sentenced under paragraph "b" of part 2 of Article 178 of the Criminal Code to 3 years of restriction of liberty. By the decision of the Taraz city Court No. 2 dated September 15, 2014, the unserved part of the restriction of freedom was commuted to 1 year, 9 months, and 25 days of imprisonment, and he was released on July 8, 2016, after serving his sentence. By virtue of the requirements of paragraph 12 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of the imposition of criminal punishment", persons who have been sentenced to imprisonment cannot be considered as persons who have been sentenced to imprisonment (fine, correctional labor, restriction of liberty, etc.) on the grounds provided for in part three of the article. 44 of the Criminal Code and the third part of Article 46 of the Criminal Code, was replaced by imprisonment. Thus, according to the court verdict of December 24, 2013, Ts. He is not considered to have been sentenced to imprisonment, as he was sentenced to restriction of liberty, which was subsequently replaced by imprisonment. In addition, this criminal record has been expunged on the basis of part 3 of Article 79 of the Criminal Code. In accordance with part 9 of Article 79 of the Criminal Code, the cancellation or removal of a criminal record cancels all legal consequences related to a criminal record, with the exception of restrictions imposed by an additional type of punishment imposed for life.

Therefore, according to the verdict of the court No. 2 of the city of Taraz dated December 6, 2017, he must be considered a person who was first sentenced to 2 years in prison for a moderate crime under paragraph 2 of part 2 of Article 188 of the Criminal Code. In accordance with paragraph 1 of part 5 of Article 46 of the Criminal Code, imprisonment is imposed on persons who have been convicted for the first time for committing an intentional crime, for which a sentence of imprisonment of up to two years has been imposed in institutions of the minimum security penal system. In addition, the court appointed TS for this crime. additional punishment in the form of confiscation of property. According to part 1 of Article 48 of the Criminal Code, property belonging to a convicted person, obtained by criminal means or acquired with funds obtained by criminal means, is subject to confiscation, that is, compulsory gratuitous seizure and conversion into state ownership. Paragraph 20 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 "On certain issues of criminal punishment" clarified that property subject to confiscation should be clearly specified in the operative part of the sentence. Confiscation may be applied only to property that was owned by the convicted person or third parties, obtained by criminal means or acquired with funds obtained by criminal means, as well as to property that is an instrument or means of committing a criminal offense. It should be noted that the attribution of property to objects of confiscation on the basis of the provisions of part 3 of Article 113 of the Criminal Procedure Code of the Republic of Kazakhstan is a circumstance included in the subject of proof.

If there is no information about the criminal nature of the origin of the property in the case or the property has not been established at all, confiscation of property is not applied, including under articles of the Special Part of the Criminal Code, which provide for the mandatory imposition of this type of additional punishment. In this case, the pre-trial investigation body has not established the presence of Ts. any property that is owned, in respect of which there is evidence of criminality of its origin. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the verdict of the court of first instance against Ts. and abolished his sentence in terms of serving his sentence in institutions of the maximum security penal system; appointed him to serve his sentence in institutions of the minimum security penal system.; abolished the additional punishment in the form of confiscation of property owned by the convicted person, obtained by criminal means, or acquired with funds obtained by criminal means, as well as property that is an instrument or means of committing a crime. The rest of the verdict was left unchanged, and the protest of the Prosecutor General of the Republic of Kazakhstan was partially satisfied. 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases