The court's violation of the law when imposing additional punishment and punishments based on the totality of sentences led to a change in judicial acts.

By the verdict of the specialized interdistrict Criminal Court of the Akmola region dated May 25, 2012, I., previously convicted on March 16, 2011 under Article 178, part 2, paragraphs "a, b" of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) (as amended in 1997) to 3 years in prison with the application of Article 63 of the Criminal Code, conditionally, with a probation period of 2 years, - convicted under paragraphs "a, c, d" of part 2 of Article 179 of the Criminal Code (as amended in 1997) to 9 years in prison with confiscation of property, under paragraphs "g, k" of part 2 of Article 96 of the Criminal Code (as amended in 1997) to 15 years in prison with confiscation of property, under paragraph "a" of part 2 of Article 187 of the Criminal Code (as amended in 1997) to 3 years of imprisonment, based on part 4 of Article 58 of the Criminal Code by partial addition of punishments to 17 years of imprisonment with confiscation of property. Based on part 1 of Article 60 of the Criminal Code, by partially attaching the unserved part of the sentence under the previous sentence to 18 years of imprisonment with confiscation of property and serving the sentence in a special-regime penal colony. In accordance with paragraph "b" of part 3 of Article 13 of the Criminal Code (as amended in 1997), a particularly dangerous recidivism of crimes was recognized in I.'s actions. K. was convicted by the same verdict, and the judicial acts against him are not disputed. By the decision of the Appellate Judicial Board for Criminal Cases of the Akmola Regional Court dated July 11, 2012, the verdict was upheld, and the appeals of the convicts were dismissed. By the decision of the cassation judicial board of the Akmola Regional Court dated February 7, 2013, the judicial acts that took place were left unchanged, the cassation appeal of convict I. was dismissed.

In the protest, the Prosecutor General points out that since the previous court verdict of March 16, 2011 against I. entered into force only after the criminal case was considered by the court of appeal on April 29, 2011, and he committed a repeat crime before that on April 18, 2011, the court incorrectly recognized the presence of a particularly dangerous recidivism in his actions. crimes. In this regard, the prosecutor asks to cancel the recognition of a particularly dangerous recidivism of crimes in the actions of the convicted person, exclude the recognition of this circumstance as aggravating his responsibility and impose punishment on him using the provisions of part 2 of Article 55 of the Criminal Code. The prosecutor also pointed out that the court had imposed a suspended sentence on the convicted person without cancellation in accordance with the requirements of part 5 of Article 64 of the Criminal Code, that is, in violation of criminal law, and requested that the provisions of article 60 of the Criminal Code be excluded from being applied to the convicted person. The prosecutor's protest arguments that since the previous court verdict of March 16, 2011 against I. entered into force after the criminal case was considered by the court of appeal on April 29, 2011, and he committed a repeat offense on April 18, 2011, the court incorrectly recognized the presence of a particularly dangerous recurrence of crimes in his actions are unfounded. Thus, it follows from the materials of the criminal case that I. and his brother K. were convicted by the verdict of the district court No. 2 of the Saryarkinsky district of Astana on March 16, 2011. This verdict of the court was reviewed by the Court of Appeal of Astana city only in relation to K. on his appeal and the decision of this court dated April 29, 2011 was left unchanged. The court verdict of March 16, 2011 against I. was not appealed, and therefore, in accordance with the requirements of part 1 of Article 447 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) (as amended in 1997), this verdict against I. entered into force after the expiration of the time limit for appeal, then It is April 1, 2011. Because And. If he committed a new crime on April 18, 2011, that is, after the first court verdict entered into force, the court of first instance correctly recognized in this case the existence of a combination of sentences and a particularly dangerous recurrence of crimes in the actions of convicted AND.

In such circumstances, the prosecutor's protest regarding the cancellation of the court's decision to recognize the presence of a particularly dangerous recidivism in the actions of the convicted person, to exclude from the sentence the recognition of a particularly dangerous recidivism as an aggravating circumstance and to impose punishment on him using the provisions of part 2 of Article 55 of the Criminal Code, must be left without satisfaction. At the same time, the arguments of the prosecutor's protest about the need to change the sentence and cancel it in terms of the appointment of convicted I. punishments based on the totality of sentences based on Article 60 of the Criminal Code are justified. Thus, in accordance with the requirements of part 5 of Article 64 of the Criminal Code (as amended in 1997), if a probationer commits an intentional crime of moderate gravity, grave or especially grave crime during probation, the court cancels the suspended sentence and assigns him punishment according to the rules provided for in Article 60 of the Criminal Code. A similar provision is contained in part 5 of Article 64 of the current Criminal Code. Since the lower court appointed the convict And. If the punishment is based on a set of sentences without cancellation of the suspended sentence under the previous sentence, then the application of Article 60 of the Criminal Code to the convicted person and the imposition of punishment on him based on a set of sentences is subject to cancellation. In accordance with the requirements of part 1 of Article 6 of the Criminal Code, the additional penalty imposed on convicted I. in the form of confiscation of property is subject to cancellation, since it has not been established in the case that the convicted person has property subject to confiscation, obtained by criminal means or acquired with funds obtained by criminal means.

Also, in accordance with the provision on the retroactive effect of the criminal law in the actions of convicted I. on the basis of paragraph 2) of part 2 of Article 14 of the Criminal Code, instead of a particularly dangerous recidivism of crimes, the presence of a dangerous recidivism of crimes should be recognized. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court amended the judicial acts of the local courts in respect of I. and excluded from the verdict the application of Article 60 of the Criminal Code to convicted I. and the imposition of punishment on him based on the totality of sentences. She abolished the additional punishment of confiscation of property. I decided in the actions of the convicted And . on the basis of paragraph 2) of part 2 of Article 14 of the Criminal Code, instead of a particularly dangerous recidivism of crimes, recognize the existence of a dangerous recidivism of crimes. On the basis of part 4 of Article 58 of the Criminal Code, for the totality of crimes by partial addition of punishments, I. was sentenced to 17 years in prison, serving her sentence in institutions of the penitentiary system of emergency security. In the rest of the judicial acts against I. are left unchanged. The verdict of the District court No. 2 of the Saryarkinsky district of Astana dated March 16, 2011 against I., it was decided to execute in accordance with paragraph 12) of Article 476 of the CPC. The protest of the Prosecutor General of the Republic of Kazakhstan has been partially satisfied. 

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