Theft of other people's property

By the verdict of the Shemonaikha District Court of the East Kazakhstan region dated October 14, 2020: S., who had no previous criminal record, was sentenced under paragraph 3) of part 3 of Article 191 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 5 years in prison to serve his sentence in an institution of the medium security penal system. The measure of restraint against S. was changed, and he was taken into custody in the courtroom. The term of serving the sentence is calculated from October 14, 2020. In accordance with paragraph 2) In part 3 of Article 62 of the Criminal Code, the time of S.'s detention is counted during the time of serving the sentence. in custody from October 14, 2020, until the verdict comes into force, at the rate of one day per one and a half days of serving a sentence of imprisonment in a medium-security facility. Procedural costs in the amount of 11,552 tenge and a compulsory payment to the Victims Compensation Fund in the amount of 55,560 tenge were collected from S. to the state revenue. The fate of the physical evidence is resolved. By a court verdict, S. was found guilty of open theft of other people's property with illegal entry into the vault. By the decision of the Judicial Board for Criminal Cases of the East Kazakhstan Regional Court dated December 9, 2020, the verdict was upheld. According to paragraph 4 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 8 "On judicial practice in cases of embezzlement" (hereinafter referred to as the Regulatory Resolution), theft is the secret theft of other people's property. When deciding whether embezzlement is secret, courts should proceed from the perception of the situation by the perpetrator himself. If the perpetrator believes that he is acting unnoticed by others, then theft should be classified as theft, even if the owner or another person is watching his actions. When the court found S. guilty of open theft of other people's property with illegal entry into the vault, it proceeded only from the testimony of witness N. Thus, the court of first instance found that S. had taken the stolen property outside through the window, but some of the goods had scattered, and at that moment an eyewitness to the crime, witness N., saw S. through the window and called out to him. However, S., despite the evidence of the crime he was committing, in order to carry out criminal intent, openly stole property and fled the scene of the crime, causing material damage to the victims by his criminal actions. However, from the testimony of witness N., it appears that she was not an eyewitness to the criminal act committed by S..

Theft of other people's property

Since witness N. testified to the court that on August 2, 2020, she was in her apartment (located on the second floor) and at about 00:30 from the window of her apartment she heard extraneous sounds coming from the Samrat store located on the first floor of the dormitory. She looked out the window and saw a bent grate, someone was sitting by the window, and she could hear the rustle of packages. She shouted, "Who's there?" and heard someone say, "Got caught." From the sound of his voice, it seemed to her that it was Viktor Kaverzin. She immediately went to call the commandant. While making the call, she looked out the window again and saw the silhouette of a man running away towards house number 38. After that, she immediately went outside, where she went out and M. Near the window of the store they saw bags with stolen products. A few minutes later, police officers arrived, and upon their arrival, S. collected the valuables stolen from her store. She couldn't describe the criminal's appearance because she hadn't seen him: when she looked out the window, the man had already disappeared from view. In accordance with paragraph 5 of the above-mentioned Regulatory Decree, open theft is such theft that is committed in the presence of the victim or persons in charge or under whose protection the property is located, or in full view of outsiders, when the person committing the theft realizes that these persons understand the unlawful nature of his actions, but ignores this circumstance. However, from the testimony of witness N., it should be concluded that she did not see how S. committed the theft from the store and what exactly he stole, she only heard the rustle of packages and saw the silhouette of a man near the store. At the same time, she did not know: whether a theft has been committed from a store or is being prepared to be committed.

S. himself, realizing that the noise he made near the store was heard by other people, quietly disappeared from the crime scene with the stolen goods. This is evidenced by both the testimony of S. himself and the testimony of witness N., who, looking out of the window, saw the silhouette of a man running away to the side. She could not describe the criminal's appearance, as she did not see him when she looked out the window, the man had already disappeared from view. Thus, S. acted unnoticed by others, despite the fact that his actions were observed by N., therefore, the actions of S. It should be reclassified from paragraph 3) of part 3 of Article 191 of the Criminal Code to paragraph 3) of part 3 of Article 188 of the Criminal Code as secret theft of other people's property committed during illegal entry into the vault. When sentencing S. In accordance with article 52 of the Criminal Code, the judicial board took into account the nature and degree of public danger of the committed act, the identity of the perpetrator, including his behavior before and after the commission of the offense, circumstances mitigating responsibility and punishment – admission of guilt, sincere repentance for the deed and lack of compensation for the damage caused to the victims. In such circumstances, the board considered it fair and sufficient for S. to be corrected by imposing a custodial sentence on him. In accordance with paragraph 1) part 5 of Article 46 of the Criminal Code serving a sentence With. It is defined in institutions of the minimum security penal system.

In accordance with paragraph 2) According to Part 3 of Article 62 of the Criminal Code, the time of S.'s detention from October 14, 2020, until the entry into force of the sentence is calculated at the rate of one day for two days of serving a custodial sentence in a minimum security facility. On the basis of the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in relation to S. Actions of S. reclassified from paragraph 3) of part 3 of Article 191 of the Criminal Code to paragraph 3) of part 3 of Article 188 of the Criminal Code, which imposed a penalty of 2 (two) years of imprisonment while serving a sentence in an institution of the minimum security penal system. In accordance with paragraph 2) According to Part 3 of Article 62 of the Criminal Code, the time of S.'s detention from October 14, 2020, until the entry into force of the sentence is calculated at the rate of one day for two days of serving a custodial sentence in a minimum security facility. The rest of the judicial acts remained unchanged. The petition of the convicted S. satisfied. 

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