The conviction of an innocent man led to the cancellation of the court verdict and the termination of the criminal case due to the absence of elements of a criminal offense in his actions.
By the verdict of the district court No. 2 of the Saryarkinsky district of Astana dated March 13, 2015, K., previously convicted: On October 27, 2009, under paragraph "a" of part 2 of Article 178 of the Criminal Code (as amended in 1997), he was sentenced to 3 years in prison, released on September 8, 2012 after serving his sentence, and sentenced under part 1 of Article 187 of the Criminal Code to a fine of 25 MCI in the amount of 49,550 tenge. By the verdict of the court of K. He was found guilty of stealing Megsi and Makheev candies with a total value of 5,412 tenge from the shelf on February 25, 2015, while in the 5 Minutes supermarket in Astana, which caused material damage to B LLP in an insignificant amount. The criminal case was not considered on appeal. After hearing the statement of Prosecutor N., who supported the arguments of the protest, having studied the materials of the criminal case, having discussed the arguments of the protest, the judicial board considers the protest of the Prosecutor General of the Republic of Kazakhstan to be satisfied on the following grounds. In the case, it was reliably established that K., having taken sweets from the window and hidden them in his bosom, tried to secretly take them out of the store without paying, but could not carry out his intention, as he was detained by a security officer. According to article 24 of the Criminal Code, an attempt is an act committed with direct intent, directly aimed at committing a crime, if the crime was not completed due to circumstances beyond the control of the person. Paragraph 7 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 8 dated July 11, 2003 "On judicial practice in cases of embezzlement" stipulates that theft is considered completed if the property is seized and the perpetrator has a real opportunity to use or dispose of it at his discretion.
The conviction of an innocent man led to the cancellation of the court verdict and the termination of the criminal case due to the absence of elements of a criminal offense in his actions.
The court qualified K.'s actions under Part 1 of Article 187 of the Criminal Code as a completed criminal offense, whereas the actual circumstances of the case indicate that K., being detained at the scene of the offense, did not complete his actions to steal someone else's property due to circumstances beyond his control. Thus, his actions lack the elements of a completed criminal offense, and his act is subject to qualification as attempted petty theft of other people's property. At the same time, according to part 4 of Article 24 of the Criminal Code, criminal liability is imposed only for attempted crimes of moderate severity, serious or especially serious crimes, as well as for attempted terrorist crimes. What K. had done. It refers to a criminal offense, the attempted commission of which does not entail criminal liability. Thus, K.'s actions lack the elements of a criminal offense, and the verdict against him is subject to cancellation with the termination of the proceedings on this basis. The adoption of such a decision entails, in accordance with article 39 of the CPC, recognition of the convicted person's right to rehabilitation in accordance with Chapter 4 of the CPC. Based on the above, the judicial Board for criminal Cases of the Supreme Court overturned the verdict of the court of first instance against K. and terminated the proceedings on the basis of paragraph 2 of part 1 of Article 35 of the CPC for the absence of elements of a criminal offense in his actions. In accordance with articles 37, 42 of the CPC, K. was recognized as having the right to rehabilitation and compensation for damage caused by illegal actions of bodies conducting criminal proceedings. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied.
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