Theft of someone else's property entrusted to the perpetrator (embezzlement), committed by a group of persons by prior agreement on a large scale

The court, having correctly established the factual circumstances of the case, gave an incorrect legal assessment of the actions of the convicts, qualifying them as theft of someone else's property entrusted to the perpetrator committed by a group of persons by prior agreement on a large scale.

By the verdict of court No. 2 of the city of Pavlodar on April 25, 2011, the following persons were convicted: U., under paragraph "b" of part three of Article 176 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 5 years in prison with confiscation of property and serving a sentence in a correctional colony of general regime; K., under paragraph "b" of part three of Article 176 of the Criminal Code to 7 years of imprisonment with confiscation of property while serving a sentence in a high-security penal colony. In accordance with paragraph "b" of the second part of Article 13 of the Criminal Code, a dangerous recidivism of crimes was recognized in his actions.; R., under paragraph "b" of the third part of Article 176 of the Criminal Code to 5 years of imprisonment with confiscation of property while serving his sentence in a correctional colony of general regime. By the verdict of the court, U., K. and R. were found guilty of the fact that U.  In order to steal a Mercedes-Benz car entrusted to him, No. S... with a Rolfo–C170 trailer No. 4, worth 2,713,500 tenge, belonging to M., he entered into a criminal conspiracy with K. and R.. After that, they took the car to the floodplain of the Irtysh River near the village of Sychevka, Pavlodar region, disassembled it for spare parts and sold it. By the decisions of the Appellate Judicial Board for Criminal Cases of the Pavlodar Regional Court of August 31, 2011, the verdict against K. remained unchanged. By the decisions of the cassation judicial board of the Pavlodar Regional Court of November 22, 2012, the judicial acts against K. and February 14, 2013 against R. were left unchanged.

In the protest, the Prosecutor General of the Republic of Kazakhstan requested that the actions of the convicts be reclassified from paragraph "b" of the third part of Article 176 of the Criminal Code to paragraph "b" of the third part of Article 175 of the Criminal Code, according to which U. and R. should be sentenced to 4 years of imprisonment with confiscation of property, with serving their sentences in a correctional colony of general regime, K. – 5 years of imprisonment with confiscation of property, with serving a sentence in a high-security penal colony, arguing that, as required by law, in order to recognize property as entrusted, it is not enough to establish that a person is its actual owner, it is necessary that the subject, on a certain legal basis, owns this property, exercises appropriate powers in relation to it. Having studied the materials of the criminal case, the Supervisory Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan satisfied the prosecutor's protest on the following grounds. The court, having correctly established the factual circumstances of the case, at the same time gave an incorrect assessment of the actions of the convicts, qualifying them under paragraph "b" of part three of Article 176 of the Criminal Code as theft of someone else's property entrusted to the perpetrator (embezzlement) committed by a group of persons by prior agreement on a large scale. As follows from the case file, U., by oral agreement, without concluding an employment contract or a liability agreement, was hired as a driver for M. in March 2008. By mutual consent, the victim's car was in his yard in the village of Pavlodarskoye without the right to use and dispose of it. In early August 2009, U., in a group with prior agreement with K. and R., took the car into the forest without M.'s permission, dismantled it in parts and sold it. The subject of Article 176 of the Criminal Code is entrusted property, which is in the lawful possession of the subject of the crime, possession must be related to the exercise by the perpetrator of the powers of management, disposal, delivery or storage in relation to the property. Powers in relation to the stolen property may arise from a person by virtue of official duties, contractual relations or special instructions from the owner or owner of the property. In order to recognize the property as entrusted, it is not enough to establish that the person is its actual owner, it is necessary that the subject, on a certain legal basis, owns this property and exercises appropriate powers in relation to it. Meanwhile, these requirements of the law have not been taken into account by the court.  The conclusions of the courts that the car carrier was entrusted to U. and was in his rightful possession have not been confirmed. The existence of certain legal grounds for the possession of this property and the exercise of appropriate powers in relation to it by U., K. and R. are not seen from the evidence available in the case. Other circumstances of the case regarding the special powers of the perpetrators in relation to the stolen property were not clarified by the court. In addition, the court found established the facts of the hidden removal of the truck U. in a group of persons in prior agreement with K. and R. at night from the village of Pavlodarskoye for the secret cutting of the truck. In such circumstances, the court gave an incorrect legal assessment of the actions of the convicted persons. In view of the above, the supervisory judicial board considers that the actions of U., K. and R. are subject to reclassification to paragraph "b" of the third part of Article 175 of the Criminal Code as secret theft of other people's property committed by a group of persons by prior agreement on a large scale. Retraining the actions of convicted persons entails a reduction in the penalty. Based on the above, guided by paragraph 2 of the sixth part of Article 467, as well as Article 468 of the Criminal Procedure Code of the Republic of Kazakhstan, the Supervisory Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan amended the judicial acts issued in respect of U., K. and R. Their actions were reclassified from paragraph "b" of the third part of Article 176 of the Criminal Code to paragraph "b" of the third part of Article 175 of the Criminal Code, according to which U. and R. were sentenced to 4 years of imprisonment with confiscation of property, with serving their sentences in a correctional colony of general regime for each, K. – 5 years of imprisonment with confiscation of property, while serving a sentence in a high-security penal colony. The rest of the verdict of the court, the decisions of the appellate and cassation instances were left unchanged. 

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