An aggravating circumstance of criminal punishment  

By the verdict of the Almaty City Court dated May 23, 2005: K., who had no previous convictions, was convicted under part 1 of Article 235 of the Criminal Code of the Republic of Kazakhstan (hereinafter – to 5 years of imprisonment, under paragraphs "a, c" of part 3 of Article 181 of the Criminal Code to 10 years of imprisonment with confiscation of property, under paragraph "b" of part 3 of Article 176 of the Criminal Code to 10 years of imprisonment with confiscation of property, under part 3 of Article 251 of the Criminal Code to 8 years of imprisonment, under part 3 of Article 28, part 3 of Article 24, paragraphs "a, b, e, w, z" of part 2 of Article 96 of the Criminal Code to 15 years of imprisonment with confiscation of property, under part 3 of Article 28, paragraphs "e, w, k" of part 2 of Article 96 of the Criminal Code to 19 years of imprisonment freedom with confiscation of property. Based on part 4 of Article 58 of the Criminal Code, 25 years of imprisonment with confiscation of property, with serving the first five years in prison, and subsequent punishment in a high-security penal colony, were finally imposed by partial addition of punishments. The term of serving the sentence has been calculated since May 12, 2004. Court costs in the amount of 109,200 tenge were collected from K. to the state revenue. The same verdict convicted P., K., T., K., against whom the case is not being considered.

By the verdict of the court, K. was found guilty of: - creating an organized criminal group and leading it; - illegal acquisition, transportation, storage and transfer of firearms, ammunition, explosive devices, by an organized group; - extortion in order to receive large-scale money from B., for selfish reasons; - attempted murder of A., who was fulfilling a public duty, in a way dangerous to the lives of many people, not completed due to circumstances beyond his control; - murder of N., in order to conceal another crime; - theft of the property entrusted to him on a large scale, through embezzlement and embezzlement. The verdict was upheld by the decision of the Criminal Division of the Supreme Court of the Republic of Kazakhstan dated November 22, 2005. By the resolution of the Stepnogorsk City Court of the Akmola region dated November 23, 2018, the petition of the convicted K. the application of the retroactive force of the law and the reduction of the sentence was partially satisfied. According to the verdict of the Almaty City Court of May 23, 2005, the actions of K. reclassified from paragraph "b" of part 3 of Article 176 of the Criminal Code (as amended on July 16, 1997) to paragraph 1) of part 3 of Article 189 of the Criminal Code, the sentence under this article was reduced to 7 years in prison.

An aggravating circumstance of criminal punishment  

In the rest of the sentence, the qualification of the convicted person's actions remains the same. The final sentence under part 4 of Article 58 of the Criminal Code is defined as 22 years of imprisonment with confiscation of property, with serving the first five years in prison, and subsequently in an institution of the maximum security penal system. The term of serving the sentence has been calculated since May 12, 2004. In the remaining part, K.'s request to exclude aggravating circumstances from the court's verdict and to apply article 55 of the Criminal Code was refused. By the resolution of the Judicial Board for Criminal Cases of the Akmola Regional Court dated April 12, 2019, the resolution of the Stepnogorsk City Court of the Akmola region dated November 23, 2018 was amended with the cancellation of the final punishment with the application of part 4 of Article 58 of the Criminal Code (as amended in 1997) in the form of 22 years in prison, with K. remaining in the form of 25 years of imprisonment. In the submission of the Chairman of the Supreme Court, it is stated that the incorrect application of the criminal law led to a violation of uniformity in the interpretation and application of legal norms by the courts. Whereas, according to part 2 of Article 54 of the Criminal Code, the circumstance provided for in the relevant article of the Special Part cannot be re-considered as a sign of a criminal offense as a circumstance aggravating responsibility and punishment. In this regard, a particularly active role in the commission of a crime and the use of weapons, ammunition, and explosives are subject to exclusion from aggravating circumstances.

In accordance with paragraph 18) of part 7 of Article 494 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), upon the proposal of the Chairman of the Supreme Court, the cassation instance, based on the materials available in the criminal case and additionally submitted by the parties, fully verifies the establishment of the factual circumstances of the case and the application of the criminal law, compliance with the norms of the criminal procedure law during the proceedings, legality and validity of the verdict or decision of the court of first instance, appeal, cassation instances. The court's conclusions on the evidence of K.'s guilt the crimes for which he was convicted, under the circumstances set out in the verdict, are based on the evidence examined at the court session. Legal assessment of the actions of the convicted person under part 1 of Article 235, under paragraphs "a, c" of part 3 of Article 181, paragraph "b" of part 3 of Article 176, part 3 of Article 251, part 3 of Article 28, part 3 of Article 24, under paragraphs "a, b, e, f, h" of part 2 of Article 96 of the Criminal Code, part 3 of Article 28, paragraphs "e, g , k" of part 2 of Article 96 of the Criminal Code are given correctly. However, as can be seen from the case file, when imposing punishment, the court indicated that it takes into account the circumstances of K.'s dependent child as mitigating responsibility and punishment, and the court recognized a particularly active role in the commission of a crime and the use of weapons, ammunition, and explosives as circumstances aggravating responsibility and punishment. Meanwhile, K. He was convicted under part 1 of Article 235 of the Criminal Code for the creation of an organized criminal group, as well as its leadership, which already provides for his active role in the commission of crimes. In addition, K. He was convicted under part 3 of Article 251 of the Criminal Code for the illegal acquisition, storage, and carrying of firearms, ammunition, and explosives, meaning that this circumstance has already been charged against him and taken into account as a sign of a criminal offense. Whereas, according to part 2 of Article 54 of the Criminal Code, the circumstance provided for by the relevant article of the Special Part of the Criminal Code, as a sign of a criminal offense, cannot be repeatedly taken into account as a circumstance aggravating responsibility and punishment. In this regard, a particularly active role in the commission of a crime and the use of weapons, ammunition, and explosives are subject to exclusion from aggravating circumstances. Taking into account the presence of mitigating and the absence of aggravating circumstances, K.'s punishment should be imposed using the rules of part 2 of Article 55 of the Criminal Code (as amended in 2014). According to paragraphs 2), 3) of part 2 of Article 55 of the Criminal Code (as amended in 2014), in the presence of a mitigating circumstance that is not provided for as a sign of a committed crime, and in the absence of aggravating circumstances, the term or amount of punishment may not exceed two thirds when committing a serious crime, three quarters of the maximum term when committing a particularly serious crime, or the amount of the most severe type of punishment provided for in the relevant article of the Special Part of the Criminal Code. The imposition of punishment in accordance with the requirements of part 2 of Article 55 of the Criminal Code entails a reduction in the terms of the imposed punishment both for the alleged criminal offenses and for the imposition of punishment based on their totality.

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 K. and excluded as aggravating his criminal responsibility and punishment the circumstances of "a particularly active role in the commission of crimes" and "the commission of crimes using weapons, ammunition, explosives." K. was sentenced, with the application of part 2 of Article 55, part 3 of Article 56 of the Criminal Code (as amended in 2014), punishment: - under part 1 of Article 235 of the Criminal Code (as amended in 1997) – 4 years imprisonment; - according to paragraphs "a, b" of part 3 of Article 181 of the Criminal Code (as amended in 1997) – 10 years of imprisonment with confiscation of property; - under paragraph 1) of part 3 of Article 189 of the Criminal Code (as amended in 2014) – 4 years and 8 months of imprisonment with confiscation of property; - under part 3 of Article 251 of the Criminal Code (as amended in 1997) – 6 years and 8 months of imprisonment; - under part 3 of Article 28, part 3 of Article 24, paragraphs "a, b, e, w, z" of part 2 of Article 96 of the Criminal Code (as amended in 1997) – 11 years 3 months of imprisonment with confiscation of property; - under part 3 of Article 28, paragraphs "e, g, k" of part 2 of Article 96 of the Criminal Code (as amended in 1997) – 15 years in prison. On the basis of part 4 of Article 58 of the Criminal Code, by partial addition of punishments, K. was finally sentenced to 22 (twenty-two) years of imprisonment with confiscation of property. The rest of the judicial acts remained unchanged. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied. 

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