The incorrect imposition of punishment based on the totality of sentences and the illegal calculation of the beginning of the sentence led to a change in judicial acts.
By the verdict of the Aktobe city Court No. 2 dated March 19, 2013: Zh.,- convicted under paragraphs "a, b" of part 2 of Article 179 of the Criminal Code in accordance with part 2 of Article 59 of the Criminal Code to 8 years in prison with confiscation of property, on the basis of articles 60 and 61 of the Criminal Code to 8 years and 6 months in prison with confiscation of property and serving a sentence in a special-regime penal colony. In accordance with paragraph "b" of part 3 of Article 13 of the Criminal Code in the actions of J. The presence of a particularly dangerous recidivism of crimes is recognized. By the decisions of the Criminal Appeals Board dated May 14, 2013 and the Cassation Board of the Aktobe Regional Court dated July 05, 2013, the verdict of the court remained unchanged. S. and I. were also convicted in this case, in respect of which judicial acts are not being appealed. By the verdict of the court of J. He was found guilty of having committed a robbery by a group of persons in prior agreement with I. and S. on the victims E. and A. and seized other people's property from the M store totaling 79,430 tenge.
In the petition, convicted Zh., disagreeing with the judicial acts issued in the case, indicated that the pre-trial investigation had been conducted in violation of the norms of the criminal procedure law, which led to the conviction of an innocent man. Requests to review the judicial acts that have taken place. Having examined the case by way of supervision at the request of the convicted person, the supervisory judicial board of the Supreme Court came to the following conclusions. The guilt of the convicted Zh. the commission of theft of other people's property with the use of violence dangerous to the life and health of the victims is proved by the testimony of the victims, witnesses, protocols of inspection of the scene, confrontation, expert opinions and other factual data. Actions of the convicted Zh. They are qualified according to paragraphs "a, b" of part 2 of Article 179 of the Criminal Code, right. The punishment for the crime provided for in this provision of the criminal law is also correctly assigned to him. At the same time, the court committed significant violations of the criminal law when sentencing the convicted person based on the totality of sentences.
In this case, the court of first instance partially added Zh. to the punishment imposed under paragraphs "a, b" of part 2 of Article 179 of the Criminal Code in the form of 8 years in prison on the basis of Article 60 of the Criminal Code. The unserved sentence by the verdict of the Aktobe city Court No. 2 dated August 02, 2007 in the form of 6 months in prison and finally determined that he should serve 8 years and 6 months in prison. This court's decision to impose 6 months of imprisonment on a convicted person is not based on the law. By a court decision of September 01, 2010, in the order of execution of the sentence based on Article 71 of the Criminal Code. He was released from custody, and the unserved part of the sentence of 2 years, 5 months, and 19 days of imprisonment was replaced by a milder type of punishment - restriction of liberty for the same period. Thus, from September 01, 2010 to the day he committed a new crime, that is, until October 26, 2012, J. served a sentence of 2 years, 1 month, and 25 days in prison. In this regard, the sentence he has not served is 3 months and 24 days of restriction of freedom. In accordance with the explanations contained in paragraph 12 of the normative resolution of the Supreme Court No. 10 dated December 25, 2007 "On parole and replacement of the unserved part of the sentence with a more lenient type of punishment", in the case of a convicted person committing a new crime while serving a more lenient type of punishment, the punishment imposed for him is fully or partially only the unserved part of the new punishment is added, and not the part of the imprisonment that remains unserved. In such circumstances, taking into account the above clarifications of the normative resolution and the provisions of Article 62 of the Criminal Code, the court of first instance was entitled to attach to the punishment imposed under the new sentence, on the basis of article 60 of the Criminal Code, according to the totality of sentences, only a punishment in the form of no more than 1 month 27 days of imprisonment.
Also, the court of first instance illegally calculated the beginning of the term of serving J. punishments since October 27, 2012. It follows from the materials of the criminal case that J. On suspicion of committing open theft of other people's property, he was actually detained and taken to the police station on October 26, 2012. In accordance with the requirements of Articles 54, 134 of the CPC and paragraph 4 of the normative resolution of the Supreme Court No. 7 of December 28, 2009, as amended and supplemented by the normative Resolution No. 1 of April 21, 2011, "On the application of the norms of criminal and criminal procedural legislation on the observance of personal freedom and inviolability of human dignity, countering torture, violence and other cruel or degrading forms of treatment and punishment" when a person is detained on suspicion of committing a crime, the period of detention and arrest is calculated from the moment (hour) of the actual detention of this person.
Contrary to the above-mentioned direct requirements of the law and the regulatory decree, the lower courts calculated the period of Zh.'s detention and, accordingly, the time he served the sentence imposed by the court, not from October 26, but from October 27, 2012. In connection with the above, the supervisory judicial board of the Supreme Court of the verdict of the Aktobe city Court No. 2, the decisions of the appellate and cassation judicial boards on criminal cases of the Aktobe Regional Court in relation to Zh. changed it. Based on article 60 of the Criminal Code, based on the totality of the sentences, J. was sentenced to 8 (eight) years and 1 (one) month in prison with confiscation of property. The term of serving the sentence is J. calculated since October 26, 2012. In the rest of the sentence and rulings in respect of Zh. I left it unchanged.
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