The imposition of additional punishment in the form of life imprisonment for the right to provide legal services
By the verdict of court No. 2 of the city of Ust-Kamenogorsk, East Kazakhstan region, dated July 19, 2016: T., previously, on June 2, 2009, convicted under paragraph "b" of part 3 of Article 259 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), applying the rules of Article 60 of the Criminal Code to 10 years and 5 months in prison, was released on June 22 February 2016, on parole for an unserved sentence of 3 years, 1 month, 11 days, - He was sentenced under part 4 of Article 28, part 2 of Article 367 of the Criminal Code to 3 years of imprisonment with confiscation of property and life imprisonment for the right to provide legal services, under part 3 of Article 24, paragraph 1) of part 3 of Article 190 of the Criminal Code to 4 years of imprisonment with confiscation of property and on the basis of part 3 of Article 58 of the Criminal Code according to the totality of criminal offenses to 4 years of imprisonment with confiscation of property and life imprisonment for the right to provide legal services, based on Article 60 of the Criminal Code, according to the totality of sentences, finally to 6 years of imprisonment with confiscation of property., life imprisonment for the right to provide legal services and serve sentences in a special-regime penal colony. On the basis of paragraph 1) of part 2 of Article 14 of the Criminal Code, T.'s actions were recognized as a dangerous recidivism of crimes. The procedural costs in the amount of 96,936.75 tenge were collected to the state revenue. By the verdict of the court, T. was found guilty of attempted embezzlement of funds by deception, committed on a large scale, as well as incitement to pay a bribe, committed on a significant scale. By the decision of the Appellate Judicial Board for Criminal Cases of the East Kazakhstan Regional Court of September 8, 2016, the verdict of the court remained unchanged. In the petition, the convicted T., disagreeing with the verdict of the court, indicates that the judicial acts are based on inadmissible and unreliable evidence, the court did not analyze the testimony of the victim, the motive for filing the application was not established, she did not appear in court, as well as the witnesses, to whom the defense had many questions, the verdict was passed on assumptions.
The imposition of additional punishment in the form of life imprisonment for the right to provide legal services
Requests to initiate cassation proceedings, to review the qualification of the committed act. The guilt of the convicted person in the acts incriminated to him is confirmed by the stable testimony of the victim K., witnesses A., M. and S., protocols of confrontations, studies of the results of secret investigative actions and other case materials. The actions of convicted T. under part 4 of Article 28, part 2 of Article 367, part 3 of Article 24, paragraph 1) of part 3 of Article 190 of the Criminal Code were correctly qualified by the court. The type and amount of the main punishment imposed on T. complies with the requirements of article 52 of the Criminal Code, and is proportionate to what he has done and his personality. However, the courts of the first and appellate instances incorrectly applied the norms of criminal law when imposing additional punishment in the form of life imprisonment for the right to provide legal services. Meanwhile, the list of punishments, the grounds and conditions for their application, as well as the special conditions for the imposition of certain punishments are given in section 3 of the General Part of the Criminal Code of the Republic of Kazakhstan. In accordance with article 50 of the Criminal Code, the deprivation of the right to hold a certain position or engage in a certain activity consists in prohibiting holding certain positions in the civil service, in local governments, financial organizations, or engaging in certain professional or other activities. Deprivation of the right to hold a certain position or engage in a certain activity is established for a period of one to ten years. For committing corruption crimes, deprivation of the right to hold a certain position or engage in a certain activity is mandatory and consists of a lifetime ban from holding positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, the authorized body for regulation, control and supervision of the financial market and financial organizations, government organizations and quasi-governmental entities. sectors. The Cassation Board considers it necessary and sufficient to appoint T. additional punishment in the form of deprivation of the right to provide legal services for a period of 10 years.
In addition, T. was given an additional penalty in the form of confiscation of property, whereas in accordance with part 1 of Article 48 of the Criminal Code, confiscation, that is, compulsory gratuitous seizure and conversion into state ownership, is subject to property owned by a convicted person, obtained by criminal means or acquired with funds obtained by criminal means, as well as property that is an instrument or means of committing a criminal offense. By virtue of 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 the imposition of criminal punishment", if there is no information on the criminal nature of the origin of property in the case or the property has not been established at all, confiscation of property is not prescribed, including under articles of the Special Part of the Criminal Code providing for mandatory appointment this type of additional punishment. The attribution of property to objects of confiscation on the basis of the provisions of part three of Article 113 of the Criminal Procedure Code of the Republic of Kazakhstan is a circumstance included in the subject of proof. It can be seen from the case file that the criminal prosecution authority did not establish the existence of such property in T., therefore, the confiscation was ordered unlawfully. Consequently, judicial acts are subject to change in terms of the additional penalties imposed on T. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in relation to T. and she abolished the additional punishment of life imprisonment for the right to provide legal services. T. was given an additional punishment in the form of deprivation of the right to provide legal services for a period of 10 (ten) years. The additional penalty of confiscation of property has been abolished. The rest of the judicial acts remained unchanged. The petition of the convicted T. was partially satisfied.
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