Unlawful conviction under Articles 24, part 3, 188, part 3, paragraph 3) of the Criminal Code Theft

T. was sentenced under Articles 24, part 3, 188, part 3, paragraph 3) of the Criminal Code to 3 years in prison. 60 of the Criminal Code, by partially attaching the unserved part of the sentence under the previous sentence, 3 years and 3 months of imprisonment were finally appointed for serving.

T.'s actions were recognized as a recidivism of crimes. A compulsory payment in the amount of 55,560 tenge was collected from T. to the Compensation Fund for Victims.

By the verdict of the court, T. was found guilty of attempted theft, that is, the secret theft of someone else's property by illegally entering a residential building that was not completed due to circumstances beyond his control.

The court of appeal upheld the verdict.

The cassation instance annulled judicial acts with the termination of proceedings in the case on the following grounds.

The court, having reliably established the factual circumstances of the case, gave a correct assessment of the actions of the convicted person.

It was established that T., in order to steal property, entered the courtyard of the house belonging to A., and tried to illegally enter the apartment building by squeezing the plastic door.    At this time, a patient entered the courtyard and began to call for help.          T., having failed to complete his criminal actions due to circumstances beyond his control, disappeared.

In accordance with paragraph 2 of the regulatory decree of the Supreme Court "On judicial practice in cases of embezzlement", the subject of embezzlement is specific property. It must have a certain value, on which the qualification of the crime depends.

The specific property that T. attempted to steal has not been identified.

There is no sufficient body of evidence in the case to confirm T.'s intent to commit theft of someone else's property with its assigned value.

In accordance with the rules of art.24, part 4 of the Criminal Code, an attempt to commit a criminal offense is not a criminal offense.

It follows from the above that in the case of an attempted theft of an unidentified property, which cannot be assessed, committed with illegal entry into a dwelling, the act of an innocent person should be qualified under Article 149 of the Criminal Code (violation of the inviolability of a dwelling), and in the case of an attempt to enter a dwelling or non-residential premises, it is subject to justification.

 

 

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