The court unreasonably refused to apply the Amnesty Law
By the verdict of the district court No. 2 of the Saryarkinsky district of Astana dated March 28, 2017, S., previously convicted: 1) on March 28, 2002, under paragraphs "a, b" of part 2 of Article 175 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), to 2 years and 4 months of imprisonment; 2) on September 16, 2005, under paragraphs "a, b" of part 2 of Article 175 of the Criminal Code, to 3 years and 2 months of imprisonment; 3) On September 24, 2009, under part 2 of Article 175 of the Criminal Code, he was sentenced to 3 years and 6 months in prison, and was sentenced under part 1 of Article 187 of the Criminal Code to a fine of 25 monthly calculation indices, which amounts to 56,725 tenge. From the convicted S. 7,726 tenge and state duty in the amount of 77 tenge were collected in favor of LLP "D" for compensation of material damage. By the verdict of the court, S. was found guilty of committing petty theft. By the resolution of the District Court No. 2 of the Saryarkinsky district of Astana dated April 14, 2017, S. refused to apply 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 Amnesty Law) to the sentence of March 28, 2017, by which he was convicted under Article 187 of the Criminal Code. The case was not considered on appeal. In the submission, the Chairman of the Supreme Court of the Republic of Kazakhstan requests that the sentence against S. be changed due to the improper application of the criminal law and that the amount of the fine imposed be reduced. The court's conclusions about the guilt of convicted S. in the act charged against him under the circumstances set out in the court verdict are correct and are based on the totality of evidence examined at the court session, and are not disputed in the presentation.
The court unreasonably refused to apply the Amnesty Law
S.'s actions are correctly qualified under part 1 of Article 187 of the Criminal Code. At the same time, the arguments of the notion of the incorrect application of the criminal law are well-founded. Thus, according to part 1 of Article 41 of the Criminal Code, a fine is a monetary penalty imposed in an amount corresponding to a certain number of monthly calculation indices established by the legislation of the Republic of Kazakhstan and in force at the time of the commission of a criminal offense. Meanwhile, the case materials objectively established that S.'s criminal offense was committed in 2016. The Law of the Republic of Kazakhstan dated November 30, 2015 "On the Republican Budget for 2016-2018" established that the monthly calculation index as of January 1, 2016 is 2,121 tenge. However, the court of first instance, when imposing a fine on S. under part 1 of Article 187 of the Criminal Code, proceeded from the monthly calculation index of 2,269 tenge, set for 2017. Consequently, the court's verdict is subject to change with the reduction of the fine amount in accordance with the requirements of part 1 of Article 41 of the Criminal Code, which improves the situation of convicted S. In addition, according to paragraph 1 of article 2 of the Amnesty Law, persons who have committed criminal offenses and minor crimes are exempt from punishment. In accordance with part 3 of Article 10 of the Criminal Code, the act provided for in Article 187 of the Criminal Code refers to criminal offenses and it was committed on May 31, 2016, that is, before the publication of the Amnesty Law. It follows from the meaning of article 78 of the Criminal Code that the court has the right to decide to terminate the case as a result of an act of amnesty both at the stage of the preliminary hearing and during the main trial. The court's decision to terminate the case is issued in the form of a resolution. If the accused objects to the termination of the case, the court is obliged to appoint or bring to an end the main trial that has begun. In the absence of grounds for acquitting the defendant, the court decides on a guilty verdict with sentencing and release from it with reference to the relevant article of the amnesty act. However, the court that handed down this sentence, by a decision dated April 14, 2017, unreasonably refused to grant S. an amnesty due to his refusal, referring to paragraph 4) of article 7 of the Amnesty Law. There are no restrictions provided for in article 5 of the Amnesty Law in relation to S. Based on the above, the judicial Board for Criminal Cases of the Supreme Court changed the verdict of the court of first instance against S., reducing the punishment imposed on S. under part 1 of Article 187 of the Criminal Code in the form of a fine of 56,725 tenge to 53,025 tenge. The decision of the District court No. 2 of the Saryarkinsky district of Astana dated April 14, 2017 on the acceptance of S.'s refusal was canceled. from the application of the Amnesty Law against him following the verdict of the District Court No. 2 of the Saryarkinsky district of Astana on March 28, 2017 under Article 187 of the Criminal Code. On the basis of paragraph 1 of article 2 of the Amnesty Law, S. was released from the imposed punishment. The rest of the verdict was left unchanged. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is 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
