Participation in an organized group and commission of robberies in its composition

By the verdict of the specialized interdistrict Criminal Court of Almaty dated November 19, 2018: Ye., who had no previous criminal record, was sentenced under Part 2 of Article 262 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 6 years in prison, under part 5 of Article 287 of the Criminal Code to 5 years in prison, under part 1 of Article 380 of the Criminal Code 1 year of imprisonment, under paragraph 1) of part 3 of Article 126 of the Criminal Code to 6 years of imprisonment, under paragraph 1) of part 4 of Article 192 of the Criminal Code with the application of parts 4, 5, 6 of Article 55 of the Criminal Code to 8 years of imprisonment. In accordance with part 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment, a more severe punishment was finally imposed in the form of 8 years of imprisonment to be served in institutions of the maximum security penal system. The sentence was calculated from May 30, 2017. The procedural costs have been recovered, and the fate of the physical evidence has been resolved. The same verdict convicted S., E., K., R., Sh. and N., in respect of which judicial acts are not considered. By the verdict of the court of E. He was found guilty of participating in an organized group and committing robberies in February 2013 against Z. and B., in March 2013 against G. and D., he was also found guilty of unlawful imprisonment, violence against a government official, as well as illegal acquisition, transportation, carrying and possession of weapons. and ammunition. By the decision of the Judicial Board for Criminal Cases of the Almaty City Court dated April 19, 2019, the verdict against E. remained unchanged. In the protest, the Prosecutor General, without disputing the guilt of E. in the use of violence against a government official, he points out that the court's conclusions stated in the verdict on the convict's guilt in other criminal offenses do not correspond to the actual circumstances of the case. The search of a Toyota Camry car owned by E. in the case, as well as the discovery of a sawn-off shotgun, 16-caliber cartridges, the discovery and removal of the sawn-off handle, the discovery of 16-caliber cartridges in the apartment, and the identification of E. according to episodes of robberies were committed in violation of the criminal procedure law.

Participation in an organized group and commission of robberies in its composition

In accordance with Article 19 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), he requests that judicial acts be amended, E.'s conviction under part 2 of Article 262, part 5 of Article 287, paragraph 1) of part 3 of Article 126, paragraph 1 of Part 4 of Article 192 of the Criminal Code and the application of part 3 of Article 58 of the Criminal Code be abolished. Count E. convicted under part 1 of Article 380 of the Criminal Code to 1 year of imprisonment and release him from punishment in connection with serving his sentence. In the petition, lawyers U. and K. in the interests of the convicted E. They are asking for judicial acts to be changed, canceling them in terms of his unlawful conviction under all articles of the indictment due to violations of constitutional rights and freedoms of citizens, norms of criminal law and criminal procedure law committed during the pre-trial investigation and the main trial, which led to the conviction of an innocent man. At the same time, in the petition, they point to a number of violations of the law committed during the pre-trial investigation and trial. In responding to the prosecutor's protest, lawyer K. disagreed with the protest regarding the conviction of E. According to part 1 of Article 380 of the Criminal Code, he requests that the lawyers' petition be granted in full, overturning the verdict against E. due to his innocence and non-involvement in the crimes charged against him, ruling on his full acquittal. The court found that on May 30, 2017, the investigative and operational group of the National Security Committee for Almaty, in order to detain the convicted R. and conduct a search at his place of residence, together with National Guard officers, drove a Toyota Land Cruiser 200 operational vehicle to R.'s place of residence at the address: Almaty region, Karasai district, 27 Raimuly Chokpara St., Koksai. At about 01:00 hours, R., arriving in a Toyota Camry car, registration number 050RWY/01, drove into the courtyard under the control of E., where, during the arrest of R., a shootout broke out between him and the National Guard officers, during which the unit commander J. received a gunshot wound to his left foot. E., while driving the car The Toyota Camry brand, having switched on the reverse gear of the car, rammed a Toyota Land Cruiser 200 special unit car at high speed, pushing it out onto the street, while pinching the employee. between the car and a concrete fence, thereby injuring him in the shoulder joint area. The court's conclusion that Ye. was guilty of using violence against a government official in protest is not disputed and is based on the evidence examined at the hearing and stated in the verdict, including the testimony of the victim Ch., the presence of bodily injuries in his forearm, the testimony of witnesses K, J., D., B., A. – eyewitnesses of the deed. The court gave the evidence a correct and reasoned assessment and reasonably concluded that the injuries to the representative of the authorities were caused as a result of illegal actions by E. In this regard, the defense's arguments about the innocence of the convicted person in this episode are untenable and are refuted by the above evidence. There are no grounds to question the admissibility and reliability of the evidence presented. Non-conversion of the victim Ch. seeking medical help at the hospital of the Department of Internal Affairs does not refute the presence of his injuries indicated in the outpatient card. Justifying E.'s guilt in the illegal acquisition, transportation, carrying and storage of weapons, the court referred to the search report dated May 30, 2017, during which, at R.'s place of residence, in the cabin of a Toyota Camry car, registration number 050RWY/01, belonging to E., which was located at the time of the search in the courtyard of R.'s house, under A sawn-off shotgun was found and seized under the driver's seat. According to the conclusion of the forensic ballistics examination No. 1979, the sawn-off shotgun was made by self-made shortening of the barrel of a hunting smoothbore rifle model "Izh-K" 16 caliber, factory-made, and belongs to non-standard firearms. The number plates on the edge were destroyed by grinding. The trigger mechanism of the sawn-off shotgun is in good working order and is suitable for firing shots. According to the traceological examination for No. 34254, the hand trace from dactoplot No. 4, removed from the surface of the sawn-off shotgun found in E.'s car, was left by the middle finger of the latter's hand.

Participation in an organized group and commission of robberies in its composition

It can be seen from the case file that the search of the Toyota Camry car belonging to E. was carried out on the basis of the decision of the investigating judge dated May 27, 2017 on authorizing a search at the place of residence of R. The court reliably established that the specified car was located on the territory of the house of R., and the search, including the car, consistently covered both the territory of the house, as well as the premises of an apartment building. These circumstances are confirmed by watching the video recording of the investigative action, as well as the testimony of witnesses. and K., specialist Sh., who were present directly during the investigative action. In this regard, the arguments of the protest and the petition for the illegality of the search of the car based solely on the search warrant at the place of residence of R., and not E., are unfounded. Regarding the search at Ye.'s place of residence, it was conducted on the basis of the decision of the investigating judge dated May 27, 2017, authorizing a search at his place of residence, located at 24 Zhetysu-4, block 6, Almaty. The totality of the evidence examined at the court session was correctly assessed by the court as sufficient for a reliable conclusion about E.'s guilt in the illegal acquisition, transportation, carrying and storage of weapons. There is also no reason to question the evidence presented, including the video recording of the search of the car. At the same time, the case file confirms that all the 12- and 16-caliber cartridges seized from E. belong to factory production for smoothbore hunting weapons. According to the clarifications of paragraph 3 of the normative Resolution of the Supreme Court of July 21, 1995 No. 4 "On judicial practice in cases of theft of firearms, ammunition, weapons and explosives, illegal acquisition, carrying, storage, manufacture or sale of them, and negligent storage of firearms" carrying, storage, acquisition, manufacture or The sale of ammunition for smoothbore hunting weapons does not constitute a criminal offense provided for in the relevant parts of Article 287 of the Criminal Code. In this regard, the conviction of E. must be excluded from the sentence. for the illegal acquisition, transportation, carrying and storage of ammunition. As for the conviction of E. under part 2 of Article 262, paragraph 1) of part 3 of Article 126, paragraph 1) of part 4 of Article 192 of the Criminal Code, the judicial board finds judicial acts in this part subject to cancellation. In accordance with paragraph 12 of the Supreme Court's normative resolution No. 4 of April 20, 2006 "On certain issues of evaluating evidence in criminal cases", a court verdict cannot be recognized as lawful if it is made only on the basis of the victim's testimony, which has not been analyzed, compared for reliability and not confirmed by other evidence. Contrary to these requirements of the normative resolution, the court's conviction was based on the contradictory testimony of victim B., and on the second episode of the robbery, the testimony of victim G., the protocol of identification by the victims E. Meanwhile, it follows from B.'s testimony that E. hit him once and did not approach him again. After that, I saw him driving a car when he was taken to the police building. However, all this time, victim Z., who was with him, He did not identify E. as a participant in the crime. The court, refuting the convict's arguments about innocence, pointed out in the verdict that the victim G. directly pointed to E. as the person who committed the crime. However, these statements by the victim do not reliably confirm the convict's guilt in the act charged against him, since the second victim G. did not identify him. During the identification of E., the victims did not describe any specific signs of his appearance. They indicated the general features of the person, whereas at the time of the commission of crimes E. He was underage, and his identification was carried out almost 5 years later, when his appearance had changed significantly.

Within the meaning of the law, identification cannot be considered justified if the identifying person has indicated such signs that, due to their uncertainty, are insufficient to establish identity. In addition, the defense presented evidence that during the period of the robberies committed by the criminal group, Ye. was an 11th grade student and studied at an educational institution in Astana. His absence from classes related to his stay in another city has not been established in the case. During the specified period of time, Ye. traveled outside the country, which is confirmed by the case file. In such circumstances, the court did not refute Ye.'s indisputable alibi, which casts doubt on his involvement in robberies and unlawful imprisonment, as well as participation in a criminal group. According to article 19 of the CPC, a conviction cannot be based on assumptions and must be supported by a sufficient body of acceptable and reliable evidence. Irremediable doubts about the defendant's guilt, as well as doubts arising from the application of criminal and criminal procedure laws, are interpreted in his favor. Thus, the guilty verdict under part 2 of Article 262, paragraph 1) of part 3 of Article 126, paragraph 1) of part 4 of Article 192 of the Criminal Code was passed without taking into account the arguments of the defense and the court based the verdict on evidence that does not meet the requirements of relevance, admissibility and reliability.

Taking into account that E.'s confession as one of the participants in the organized criminal group is not supported by the evidence collected in the case, his actions from part 5 of Article 287 of the Criminal Code are subject to reclassification to part 3 of Article 287 of the Criminal Code. When imposing punishment, the collegium takes into account circumstances mitigating criminal liability and punishment, and the absence of aggravating circumstances. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court amended the judicial acts of the local courts in relation to E. and annulled the judicial acts regarding the conviction of E. according to part 2 of Article 262, paragraph 1) of part 3 of Article 126, paragraph 1) of part 4 of Article 192 of the Criminal Code and the criminal case in this part on the basis of paragraph 2) of part 1 of Article 35 of the CPC was terminated due to the absence of elements of criminal offenses in his actions. E.'s conviction for the illegal acquisition, transportation, carrying and storage of ammunition was excluded from the verdict. E.'s actions from part 5 of Article 287 of the Criminal Code were reclassified to part 3 of Article 287 of the Criminal Code and a sentence of 2 years and 6 months imprisonment was imposed. On the basis of part 2 of Article 58 of the Criminal Code, by absorbing the less severe punishment imposed under part 1 of Article 380 of the Criminal Code into a more severe one, the punishment was finally imposed in the form of 2 years and 6 months of imprisonment. Due to the full completion of his sentence, Ye. was released from custody immediately. The rest of the judicial acts remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan and the petition of lawyers U. and K. were partially satisfied. 

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