The imposition of a penalty aggravated the situation of the convicted person, taking into account the circumstances aggravating criminal liability and punishment not specified in the indictment when imposing a penalty
By the verdict of the Karakiya District Court of Mangistau region dated June 23, 2017, K. has not previously been convicted, sentenced to 9 years in prison under Part 3 of Article 106 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), serving a sentence in a general regime correctional colony. 110,299 tenge 51 tiyn procedural costs were collected from the convicted person in favor of the state. By the verdict of the court, K. knowingly was found guilty of committing acts that led to the death of a minor H. by negligence by intentionally causing serious harm to his health. By the decision of the Judicial Board of the Mangistau regional court for criminal cases dated August 18, 2017, the verdict was left unchanged. The sign "inflicting serious consequences through a criminal offense", recognized as a circumstance aggravating the criminal liability and punishment of the convicted person, is excluded from the court sentence. The guilt of the convicted person is fully proved in the main trial by the answers of the legal representative of the victim, witnesses G., T., E., N., A., expert M. and the materials of the criminal case. According to the conclusion of the forensic examination, H.'s death was caused by a closed head injury, which led to swelling and compression of the brain due to hemorrhage under the layers of the right cerebral hemispheres, into the brain tissue. He was found to have 3 scratches on his body, 51 bruises, 2 bruises on the salivary lining of his lips and 2 bruises. From the materials of the case, it is not established that the convicted person accidentally killed the victim, but, on the contrary, he deliberately beat the victim on the head, causing serious harm, as a result of which he committed criminal acts that led to the death of the victim by negligence. After all, the totality of the evidence studied at the trial served as the basis for the judicial board to conclude that the convicted K. realized the danger of his actions when beating the victim in the head and body, foresaw the possibility of its dangerous consequences for society, but consciously allowed it, even if he did not want Death to occur.
On these grounds, there are no grounds for qualifying the criminal behavior of a convicted person by Article 104 of the criminal code. The criminal activity of the convicted person is correctly differentiated by Part 3 of Article 106 of the criminal code. However, the court incorrectly applied the criminal law when imposing a punishment on the convicted K. When imposing a punishment in accordance with Part 3 of Article 52 of the criminal code, along with data related to the personality and behavior of a person, liability and circumstances mitigating and aggravating punishment are taken into account. In accordance with paragraph 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4" on some issues of imposition of criminal penalties", the limits of judicial proceedings are limited to the charges formulated at the time of drawing up the indictment. Circumstances mitigating and aggravating liability and punishment are included in the content of the charge. Therefore, if the court establishes in the sentence the presence of circumstances not specified in the indictment, aggravating liability, it aggravates the situation of the defendant in accordance with the requirements of Article 340 of the CPC and is a violation of the limits of the trial. As it was established in the case, the court of first instance, when imposing a sentence on K., took into account his criminal liability and sincere repentance with a partial confession of guilt as mitigating circumstances. At the same time, the court recognized that K., as circumstances aggravating criminal liability and punishment, caused serious harm through a criminal offense, committed a criminal offense with extreme cruelty and insult to the victim. These aggravating circumstances are not specified in the indictment.
The court went beyond the main trial and recognized these circumstances as aggravating the criminal liability and punishment of the convicted person. In addition, the fact that serious consequences were caused by a criminal offense is the objective side of the corpus delicti, which is recognized as guilty by K., therefore, it is not subject to recognition as a circumstance aggravating the criminal liability and punishment of the convicted person. On this basis, the appellate judicial board left the mark "committing a criminal offense with extreme cruelty and humiliation" unchanged in the court verdict, with the correct exclusion of circumstances aggravating the criminal liability and punishment of the convicted person. Since this circumstance aggravating criminal liability and punishment is also not specified in the indictment, this sign is also subject to exclusion from the court verdict. The unjustified recognition of these circumstances aggravating liability and punishment influenced K. to impose a fair punishment in the aggregate of mitigated circumstances, taking into account the requirements of the criminal law. In the presence of mitigating circumstances and in the absence of aggravating circumstances that are not provided for as a sign of a crime committed in accordance with paragraph 2) of Part 2 of Article 55 of the criminal code, the term or amount of punishment may not exceed two-thirds of the maximum term or amount of a more severe type of punishment provided for in the relevant article of the special part of the criminal code. The criminal offense committed by K. belongs to the category of a serious crime, and the sanction of Part 3 of Article 106 of the criminal code, in which he is found guilty, provides for a sentence of imprisonment from eight to twelve years. In such a case, the judicial board, applying paragraph 2) of Part 2 of Article 55 of the criminal code, considers that the term of punishment assigned to the convicted person should not exceed 8 years. The judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan changed the judicial acts of local courts in relation to the convicted person, removed from the court verdict the circumstances aggravating the criminal liability and punishment of the convicted person-"committing a criminal offense with extreme cruelty, humiliation", reduced the term of punishment assigned to the convicted person by Part 3 of Article 106 of the Criminal Code to 8 years by applying paragraph 2) of Part 2 of Article 55 of the Criminal Code, and appointed serving the sentence in a medium-safe institution of the Penal correction system.
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