The main trial should be conducted only in relation to that defendant and only within the limits of the prosecution that he filed with the court
By the verdict of the Enbekshi District Court of Shymkent dated October 2, 2017: A. previously sentenced on February 28, 2011 to imprisonment for 7 years and 6 months on the basis of Part 1 of Article 185 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), Part 3 of Article 175 "B", Part 3 of Article 177 "B", Part 3 of Article 58 of the criminal code. By a court decision of January 24, 2012, the amount of this punishment was reduced to 7 years in accordance with Article 5 of the criminal code. On June 22, 2015, on the basis of Part 3 of Article 345 of the criminal code, Part 2 of Article 58 of the criminal code, on the basis of Part 2 of Article 347 of the criminal code, he was sentenced to imprisonment for 2 years and 6 months with the deprivation of the right to drive a vehicle for a final period of 5 years, depriving him of the right to drive a vehicle for a minimum security institution of the Penal correction system. By the court verdict A. he was found guilty of gross violation of the rules of traffic or operation of vehicles while driving, causing an accident that caused the death of the victim U. by negligence, and leaving the scene. By the decision of the Judicial Board of the South Kazakhstan regional court on criminal cases dated November 24, 2017, the court sentence was canceled. By the verdict of the Judicial Board of the South Kazakhstan regional court on criminal cases dated November 24, 2017 A. On the basis of Part 3 of Article 345 of the Criminal Code, Article 347 of the criminal code, Part 2 of Article 58 of the criminal code, by transferring a less severe punishment to a more severe punishment for a set of crimes, the final sentence is sentenced to imprisonment for 4 years and 6 months with the deprivation of the right to drive a vehicle for 5 years, serving the sentence in the highest security institution of the Penal correction system.
By the resolution of the judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan dated June 26, 2018, the resolution and verdict of the judicial board on criminal cases of the South Kazakhstan regional court dated November 24, 2017 were unchanged, the protest of the prosecutor general of the Republic of Kazakhstan was dismissed. In the protest of the prosecutor general of the Republic of Kazakhstan, the convicted A. did not challenge the evidence of guilt and the qualification of criminal actions, but asked to change the verdict of the court of first instance in connection with the incorrect imposition of punishment, the resolution and verdict of the judicial board on criminal cases of the South Kazakhstan regional court dated November 24, 2017, the resolution of the judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan dated June 26, 2018. The fact that convicted A. committed a crime in the circumstances recorded in the court verdict is based on the evidence objectively studied at the court session and given an appropriate assessment and corresponds to the actual circumstances of the case. The court correctly ranked the criminal activity of A. Part 3 of Article 345 of the Criminal Code, Article 347. The Appellate Judicial Board grossly violated the requirements of criminal and Criminal Procedure legislation when imposing a sentence on convicted A. In accordance with Part 1 of Article 340 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code), the main trial is conducted only in relation to the defendant and within the limits of his / her prosecution submitted to the court.
The main trial should be conducted only in relation to that defendant and only within the limits of the prosecution that he filed with the court
At the same time, 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 imposing criminal penalties", the limits of judicial proceedings are limited to the charges formulated and brought when drawing up an 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 existence of circumstances aggravating liability not specified in the indictment, 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. The indictment in the criminal case does not specify the circumstances aggravating the responsibility and punishment of A. However, the court of Appeal unreasonably recognized the repeated Commission of criminal offenses in accordance with Article 54 of the Criminal Code as circumstances aggravating criminal liability and punishment, although the circumstances aggravating criminal liability and punishment in the actions of the convicted A. were not specified in the indictment.
The judicial collegium for criminal cases of the Supreme Court of the Republic of Kazakhstan amends the verdict of the judicial collegium for criminal cases of the South Kazakhstan regional court and the resolution of the judicial collegium for criminal cases of the Supreme Court of June 26, 2018 in respect of convicted A., removing from the verdict of the judicial collegium of appeal the repeated Commission of a criminal offense recognized as a circumstance aggravating criminal liability and punishment, applying to convicted A. paragraph 1) of Part 2 of Article 55 of the Criminal Code with Part 3 of Article 345 of the Criminal Code, 2 years and 6 months with deprivation of the right to drive a vehicle for a period of 5 years, Article 347 of the criminal code, paragraph 1 of Part 2 of Article 55 of the criminal code, one year with deprivation of the right to drive a vehicle for a period of 3 years, 2 years and 6 months with deprivation of the right to drive a vehicle for a final period of 5 years with deprivation of the right to drive a vehicle for a more severe punishment in accordance with Part 2 of Article 58 of the criminal code, leaving the rest of the judicial acts unchanged. The protest of the prosecutor general of the Republic of Kazakhstan was partially satisfied.
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