The failure of the court of first instance to comply with the requirements of the Criminal Code when sentencing a convicted person who committed a crime during the probation period served as the basis for the cancellation of the verdict and the decision of the cassation board of the regional court.
By the verdict of the Al-Farabi District Court of Shymkent dated August 20, 2013: M., convicted under paragraph "a" of the second part of Article 178 of the Criminal Code to 3 years of imprisonment to serve his sentence in a correctional colony of general regime. The court found M. guilty of having openly stolen her property totaling 21,500 tenge at about 9.30 p.m. on June 27, 2013, using violence that was not dangerous to the life and health of victim N.. The appellate and cassation instances upheld the judicial acts against M. in the case. Having studied the case materials at the prosecutor's protest, the supervisory judicial board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan overturned the decision of the cassation judicial board against M., the case was sent for a new trial to the court of cassation of the South Kazakhstan Regional Court with a different composition of judges on the following grounds. The court's conclusions about M.'s guilt in open theft of other people's property with the use of violence are based on the evidence examined at the court session. It can be seen from the materials of the criminal case that M. Earlier, by the verdict of the Yenbekshinsky District Court of Shymkent dated May 27, 2010, he was sentenced under paragraphs "a, b" of the second part of Article 178 of the Criminal Code to 4 years and 6 months in prison with the application of Article 63 of the Criminal Code, conditionally with a probation period of 3 years. However, during the probation period, M. violated the obligations established by the court, provided for in part 5-1 of Article 63 of the Criminal Code, changed his place of residence without permission from the Penal Enforcement Inspectorate (hereinafter referred to as the CII) and did not appear for registration for more than fifteen days.In this regard, the UII filed a complaint with the Yenbekshinsky District Court. Shymkent on the extension of up to three months of probation, established by the court verdict of May 27, 2010.
By the decision of the Yenbekshinsky District Court of Shymkent dated January 31, 2012, M.'s probation period was extended for three months, that is, until August 25, 2013. The convicted person in the present case committed a repeat offense on June 27, 2013, that is, during the probation period. Contrary to this, the court sentenced the convicted person without taking into account the requirements of the fifth part of articles 60 and 64 of the Criminal Code. As follows from the second part of Article 64 of the Criminal Code and Article 184 of the Criminal Code, if a probationer has committed an administrative offense, as well as in case of failure to appear for registration without a valid reason, change of residence without the permission of the body overseeing the behavior of the probationer, failure to fulfill the duties assigned to the convicted person by the court, the court may extend the probation period on the recommendation of the body and to establish enhanced probation control, but for no more than one year. The probation period can also be extended beyond the maximum period established by the third part of Article 63 of the Criminal Code. Therefore, by the decision of the Yenbekshinsky District Court of Shymkent dated January 31, 2012, the probation period assigned to the convicted person under the first sentence dated May 27, 2010, was extended in accordance with the requirements of current legislation. In accordance with part five of Article 64 of the Criminal Code, if a probationer commits an intentional crime of moderate gravity, grave or especially grave crime during the probation period, the court cancels the suspended sentence and appoints punishment according to the rules provided for in article 60 of the Criminal Code. Thus, when sentencing a convicted person in the present case, the court should have lifted the suspended sentence imposed by the verdict of the Yenbekshinsky District Court of Shymkent on May 27, 2010 and imposed the punishment on the basis of article 60 of the Criminal Code, that is, based on the totality of sentences.
Based on the above, the cassation court's conclusion that the decision of the Yenbekshinsky District Court of Shymkent dated January 31, 2012 to extend M.'s probation period to three months contradicts the requirements of Article 63 of the Criminal Code is erroneous. Based on the fact that the case was considered in the appellate instance on the appeal of the convicted M., and the prosecutor's protest was not received, when the case was re-examined in the appellate instance, the court cannot aggravate the convict's situation based on the arguments indicated in the Prosecutor General's protest. Therefore, only the decision of the cassation instance is subject to cancellation, because in accordance with parts one and three of Article 446-17 of the CPC, in case of improper application of the criminal law by the court of first and appellate instance, the court of cassation has the right to apply the law on a less serious crime to the convicted person and reduce the punishment in accordance with the modified qualification of the act, and also has the right to apply the law on a more serious crime or to strengthen the imposed punishment and eliminate improper application of the criminal law governing the imposition of punishment based on the totality of sentences and crimes.
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