The criminal law does not prohibit the imposition of punishment in the form of restriction of freedom in the commission of particularly serious crimes
By the verdict of the specialized interdistrict criminal Court of Kostanay region dated February 15, 2019: S., who had no previous criminal record, was sentenced under part 1 of Article 99 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) on the basis of part 4 of Article 55 of the Criminal Code to 7 years of restriction of liberty with the establishment of probation control for the entire term of punishment. On the basis of paragraph 4 of part 1 of Article 91, Article 93 of the Criminal Code, compulsory medical measures were imposed in the form of outpatient compulsory treatment by a psychiatrist at the place of stay for the execution of punishment. By the resolution of the Judicial Board for Criminal Cases of the Kostanay Regional Court dated March 26, 2019, the sentence was changed, S. was sentenced to 4 years of imprisonment with serving the sentence in an institution of the maximum security criminal executive system. The court found S. guilty of murdering D. on August 21, 2018, during a quarrel based on personal hostility. In the protest, the Prosecutor General and the lawyer in the petition, without disputing the qualifications and evidence of the convict's guilt, ask the judicial acts to be changed due to the incorrect application of the criminal law, which led to the imposition of an unfairly heavy punishment on S., to impose a restriction of freedom under part 1 of Article 99 of the Criminal Code. The court's conclusions about S.'s guilt in committing the murder of the victim D. on the basis of personal hostility are based on evidence that was properly examined at the court session and is not disputed by anyone. His actions are correctly qualified under part 1 of Article 99 of the Criminal Code.
The criminal law does not prohibit the imposition of punishment in the form of restriction of freedom in the commission of particularly serious crimes
However, from the meaning of the normative resolution of the Supreme Court of June 25, 2015 "On certain issues of the appointment of criminal punishment", the commission of a particularly serious crime by itself is not sufficient for the mandatory imposition of punishment in the form of imprisonment. The criminal law does not prohibit the imposition of punishment in the form of restriction of liberty for committing a crime of this category. On the contrary, according to paragraph 1 of this normative legal act, when imposing criminal punishment, courts should strictly observe the general rules for sentencing specified in article 52 of the Criminal Code, take into account the presence of mitigating and aggravating circumstances and punishment, and the grounds for imposing a more lenient punishment than provided for this criminal offense. Courts should comprehensively, fully and objectively examine data on the identity of the defendant, bearing in mind their significant impact on determining the type and amount of punishment. In particular, it is necessary to clarify the state of health, attitude to work, information about criminal records, etc. Courts should discuss the possibility of imposing a less severe punishment, bearing in mind that, in accordance with part 2 of Article 52 of the Criminal Code, a more severe type of punishment is imposed only if a less severe type of punishment cannot ensure the achievement of the purposes of punishment. According to part 2 of Article 39 of the Criminal Code, punishment is applied for the purpose of restoring social justice, as well as correcting the convicted person and preventing the commission of new criminal offenses, both by the convicted person and by others. Punishment is not intended to cause physical suffering or humiliate human dignity. When sentencing S., the court of first instance took into account the following circumstances as mitigating his criminal responsibility and punishment: his advanced age, he is 94 years old; his state of health, he is a disabled person of the second group; mental disorder, against which a crime was actually committed; the fact that he is a participant in the Great Patriotic War, was awarded the Order of the Patriotic War 1st degree, the Order of Glory 2nd degree; a collective letter submitted to the court about the non-release of his freedom and a positive description of former colleagues at work. Guided by part 4 of Article 55 of the Criminal Code, the court reasonably recognized the totality of the above mitigating circumstances as exceptional and appointed S. punishment below the lowest limit provided for in Part 1 of Article 99 of the Criminal Code is restriction of liberty, under the supervision of an authorized state body. The Judicial Board considers that the imposition of this type of punishment is sufficient and fair for the correction and re-education of S. There are no aggravating circumstances in the case. According to part 5 of Article 11 of the Criminal Code, the crime provided for in part 1 of Article 99 of the Criminal Code is classified as particularly serious. Based on paragraph 3 of part 2 of Article 55 of the Criminal Code, in the presence of a mitigating circumstance that is not provided for as a sign of a crime, and in the absence of aggravating circumstances, the term or amount of the main punishment may not exceed three quarters of the maximum term or amount of punishment when committing a particularly serious crime. Considering that, on the basis of Article 44 of the Criminal Code, restriction of freedom is imposed for up to 7 years, S.'s punishment should not exceed 5 years and 3 months of restriction of freedom.
Based on the above, the Judicial Board for Criminal Cases of the Supreme Court overturned the decision of the appellate instance and changed the verdict of the court of first instance. c. according to part 1 of Article 99 of the Criminal Code, using the rules of part 4 of Article 55 and paragraph 3 of Part 2 of Article 55 of the Criminal Code, a sentence of restriction of liberty for a period of 5 years was imposed with the establishment of probation control for the entire term the appointed punishment. In accordance with part 1 of Article 44 of the Criminal Code, the convicted person is charged with the following duties: - not to change his permanent place of residence without notifying a specialized body.; - do not travel to other localities (towns) without the permission of a specialized authority; - report to the probation service on the prescribed days to register and conduct a preventive conversation with him. The preventive measure, detention, has been lifted. c. released from custody immediately. The time of detention served from March 26 to May 8, 2019, was calculated as one day of imprisonment for one day of restriction of freedom. The rest of the verdict remains unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan and the lawyer's petition in the interests of the convicted person have been satisfied.
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