To recognize dangerous recidivism of crimes, a person must have previously been sentenced to imprisonment for a serious crime
By the verdict of the Baizak District Court of Zhambyl region dated March 11, 2015 O. previously sentenced on February 25, 2013 to restriction of freedom for 4 years by paragraphs "A, B" of Part 2 of Article 178 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), by the resolution of this Court of December 23, 2014, the sentence of restriction of freedom for 4 years was replaced by a sentence of imprisonment for 4 years, - He is sentenced to 7 years of imprisonment with confiscation of property under paragraphs "a, B" of Part 2 of Article 179 of the Criminal Code, 1 year and 6 months of imprisonment under Part 1 of Article 101 of the Criminal Code, 7 years of imprisonment with confiscation of property in accordance with Part 3 of Article 58 of the criminal code. In accordance with Article 60 of the criminal code, with the partial addition of the unserved part of the sentence imposed by the sentence of February 26, 2013, the property of the final O. was confiscated and sentenced to 9 years in prison, serving his sentence under the strict regime of a correctional colony. On the basis of Part 1 of Article 14 of the criminal code, recidivism of crimes is recognized in the actions of O. By the verdict of the court, O. was found guilty of robbery, as well as reckless murder, combined with conspiracy by a group of people, threats to use force dangerous to the life and health of a person subjected to an attack with the aim of illegal entry into a dwelling and theft of other people's property.
The criminal case was not considered on appeal. In the petition of the convicted O., indicating that the repetition of crimes was incorrectly recognized in his act, the court changed the verdict, eliminated this error and asked to assign him a punishment in accordance with Part 2 of Article 55 of the criminal code and, accordingly, change the type of Correctional Institution. The guilt of the convicted O. is fully confirmed by the evidence collected in the case and studied at the court session in a comprehensive, complete, objective assessment, the consistency of which does not raise any doubts. The criminal actions of the convicted O. were properly evaluated by the court. However, the court mistakenly concluded that in the process of imposing a sentence, there is a repetition of a crime in the actions of the convicted person. From the materials of the case,it follows that O. was sentenced to 4 years of restriction of freedom by paragraphs "A, B" of Part 2 of Article 178 of the criminal code by the verdict of the Court No. 2 of Taraz dated February 25, 2013, then by the resolution of the Baizak District Court dated December 23, 2014, the sentence of restriction of freedom for 4 years for malicious evasion of restriction of freedom of O. was replaced by a sentence of imprisonment for 4 years. In accordance with paragraph 12 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4" on some issues of imposing a criminal penalty", such persons may not be considered sentenced to imprisonment if the punishment (restriction of Liberty) imposed by a court verdict on the grounds provided for in Part 2 of Article 45 of the criminal code is replaced by a sentence of imprisonment. And according to Part 1 of Article 14 of the criminal code, in order to recognize dangerous recidivism of crimes, a person must have previously been sentenced to imprisonment for committing a serious crime. For the same reason, the recidivism of crimes is incorrectly recognized in the actions of the convicted O., as well as the recognition of recidivism of crimes as a circumstance aggravating the criminal liability and punishment of the convicted is subject to exclusion from the sentence.
When imposing a criminal penalty, courts should take into account the nature and degree of danger to society of the committed criminal offense, information regarding the identity of the guilty person, his responsibility and circumstances mitigating and aggravating the punishment, as well as the impact of the imposed punishment on the convict's correction, the living conditions of the family and his dependents. In accordance with Article 53 of the Criminal Code, the court recognized O.'s recognition of the crime committed by him as a mitigating circumstance of criminal liability and punishment. In the presence of mitigating circumstances and in the absence of aggravating circumstances that are not provided for as a sign of a crime committed in accordance with paragraph 3) of Part 2 of Article 55 of the criminal code, it is indicated that the term or amount of punishment may not exceed the maximum term or amount of the most severe type of punishment provided for in the relevant article of the special part of this criminal code-three-quarters. Part 2 of Article 179 of the Criminal Code provides for a sentence of imprisonment for a period of up to ten years. In this regard, taking into account the requirements provided for by Part 2 of Article 55 of the criminal code, the maximum amount of punishment that can be imposed on O. in the form of imprisonment is considered to be 6 years and 8 months. It is necessary to impose a penalty on O. by partially adding the unserved part of the sentence imposed by the sentence of February 26, 2013 on the basis of Article 60 of the criminal code. In accordance with paragraph 20 of the above-mentioned normative resolution, the property subject to confiscation must be clearly indicated in the resolution part of the sentence and it is indicated that the confiscation can be applied only to property that is in the property of the convicted person and (or) third parties, found illegally or acquired with funds found illegally. In this criminal case, there is no data on the existence of property acquired with illegally found funds in the personal property of O., as well as documents are attached to the case that O. does not have any property. Therefore, an additional penalty in the form of confiscation of property assigned to O. is subject to cancellation. In addition, O. due to the fact that he was not previously deprived of his liberty, in accordance with paragraph 2) of Part 5 of Article 46 of the criminal code, it is necessary that he be a moderately safe institution of the Penal correction system as an institution for serving a sentence.
On the basis of the above, the Judicial Board of the Supreme Court of the Republic of Kazakhstan on criminal cases amended the verdict of the court of first instance in relation to the convicted O., excluding the conclusion that O.'s actions contain a repetition of crimes and circumstances aggravating his criminal liability and punishment. The term of imprisonment imposed on O. by paragraphs "a,B" of Part 2 of Article 179 of the criminal code is:-6 years and 8 months under Paragraph 3) of Part 2 of Article 55 of the Criminal Code;-6 years and 8 months on the basis of Part 3 of Article 58 of the Criminal Code by subtracting a less severe punishment into a more severe one; - Applying Article 60 of the criminal code, the final reduction to 7 years and 6 months, the transfer of serving the sentence to a medium-safe institution of the Penal correction system, and the additional penalty of confiscation of property was abolished. The rest of the sentence was left unchanged, and the petition of the convicted O. was satisfied.
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