The court, when determining the measure of punishment for a convicted person on the basis of Article 60 of the Criminal Code, incorrectly calculated the time served under the previous sentence, and also unreasonably ordered the confiscation of property, in connection with which the judicial acts were changed.

By the verdict of the court No. 2 of the city of Aktobe, Aktobe region, dated October 4, 2013, previously convicted: 1) on May 05, 2011, under paragraphs "a, b, c" of part 2 of Article 178 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), to 3 years of restriction of liberty; 2) on August 31, 2011, under part 3 of Article 257 of the Criminal Code, to 4 years and 8 months of imprisonment, with the application of Article 60 of the Criminal Code definitively by 5 years and 6 months of imprisonment, a dangerous recidivism of crimes was recognized in the actions of the convicted person on the basis of paragraph "b" of part 2 of Article 13 of the Criminal Code. The beginning of the sentence is calculated from June 15, 2011; - sentenced under part 1 of Article 235 of the Criminal Code to 10 years in prison with confiscation of property, under paragraph "a" of part 4 of Article 177 of the Criminal Code to 6 years in prison with confiscation of property, under part 3 of Article 24, paragraph "a" of part 4 of Article 177 of the Criminal Code to 5 years in prison with confiscation of property. Based on part 3 of Article 58 of the Criminal Code, 11 years of imprisonment with confiscation of property were imposed by partial addition of punishments. In accordance with article 60 of the Criminal Code, the unserved punishment for the previous sentence of August 31, 2011 in the form of 4 years in prison was partially added and 14 years of imprisonment with confiscation of property, with serving the sentence in a high-security penal colony, was finally determined. On the basis of paragraph "b" of part 2 of Article 13 of the Criminal Code, a dangerous recidivism of crimes was recognized in his actions. The same verdict convicted B., T., Zh. in respect of which petitions were not received. From the convicts G., B., T., Zh. in a joint order, in compensation for material damage, it was recovered in favor of the victims: T. - 250,000 tenge, I. – 150,000 tenge.

By the verdict of the court, G. was found guilty of creating an organized criminal group in order to commit several crimes, committing fraud by an organized group, as well as attempted fraud as part of an organized group. By the decision of the Judicial Board for Criminal Cases of the Aktobe Regional Court of December 10, 2013, the verdict of the court remained unchanged. At the same time, a preventive measure was imposed in the form of arrest in respect of G. to be considered elected from September 5, 2013, to set off the time of pre-trial detention until the verdict comes into force from September 5 to December 9, 2013 for the term of imprisonment and the beginning of the term of serving the sentence to the convicted person. to calculate from December 10, 2013. In the petition, convict G. indicates that he committed fraudulent acts against the victims on his own, convicts B., T., Zh. are not involved in the crimes. He believes that the circumstances of the case, the testimony of the victims and other convicts have not been analyzed. He claims that he is the only one to blame and that he alone should be responsible for the crime. Requests to review the judicial acts in this part. According to paragraph 5) of part 1 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan, the grounds for the cassation review of judicial acts that have entered into force are the improper application of criminal law when imposing a penalty. There are such grounds in the case. Wines of G. the crimes imputed to him were established by the totality of evidence examined in court: the testimony of victims, witnesses, the initial testimony of convicts, including G. himself, protocols of seizure of physical evidence - cell phones, printouts of phone calls, statements of victims to the police. There are no grounds to consider these proofs unreliable and unacceptable, they were obtained in compliance with the requirements of the law. The arguments of G. The fact that he single-handedly committed fraudulent acts was the subject of research by previous judicial instances, and they were reasonably declared untenable, as they are refuted by the totality of reliable evidence, as well as the testimony of convicts B., T., and Zh., given during the pre-trial investigation, about the circumstances of the crimes committed and their coordinated actions.

The actions of the convicted person have been given a correct legal assessment. At the same time, the criminal law was incorrectly applied by the court when sentencing a convicted person. Thus, the court of first instance, on the basis of article 60 of the Criminal Code, partially added the unserved punishment of the previous sentence of August 31, 2011 in the form of 4 years of imprisonment to the total sentences imposed on G. under this sentence. However, at the time of the election in respect of G. In this case, the preventive measures in the form of detention on September 5, 2013, he actually served a 2-year, 2-month, 21-day prison sentence under the previous sentence, the unserved sentence was 3 years, 3 months, and 10 days. In such circumstances, when sentencing G. based on the totality of sentences, the court, on the basis of Article 60 of the Criminal Code, applying the principle of partial addition of the unserved punishment, was entitled to add to the imposed punishment the unserved punishment under the previous sentence for a period of no more than 3 years, 3 months, and 10 days of imprisonment. In addition, by virtue of Article 6 of the Criminal Code, the court's verdict is also subject to review regarding the imposition of additional punishment in the form of confiscation of property to convicted G. In accordance with article 48 of the Criminal Code, property obtained by criminal means or acquired with funds obtained by criminal means, or property that is an instrument or means of committing a criminal offense, is subject to confiscation. According to paragraph 20 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of criminal punishment", confiscation can be applied only to property that was owned by the convicted person and (or) third parties and was obtained by criminal means or acquired with funds obtained by criminal means, as well as on property that is an instrument or means of committing a criminal offense. 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 is not imposed, including under the articles of the Special Part of the Criminal Code, which provide for the mandatory imposition of this type of additional punishment.

The criminal prosecution body has not established the existence of such property in G., therefore, the confiscation was ordered unlawfully. In the verdict, the court did not justify its decision on confiscation and did not indicate the list of confiscated property. 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 G. On the basis of parts 1, 4 of Article 60 of the Criminal Code, 13 years of imprisonment were finally imposed by the Ural City Court of the West Kazakhstan region on August 31, 2011, by partially attaching to the imposed punishment the unserved part of the sentence, while serving the sentence in an institution of the maximum security penal system. The imposition of additional punishment in the form of confiscation of property to convict G. is excluded. In the rest of the judicial acts against convict G. are left unchanged, the petition of convict G. partially satisfied. 

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