Criminal Defense Law Firm - Robbery and open theft of other people's property
By the verdict of the district court No. 2 of the Medeu district of Almaty dated December 23, 2019: K. was sentenced under paragraphs 1), 3) of part 2 of Article 191 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 3 years of restriction of liberty, under paragraph 1) of part 2 of Article 192 of the Criminal Code to 5 years of imprisonment, under paragraph 2) parts 2 of Article 194 of the Criminal Code to 3 years and 6 months of restriction of liberty, based on parts 1, 3 of Article 58 of the Criminal Code by absorbing a less severe punishment with a more severe one, finally to 5 years of imprisonment. On the basis of article 63 of the Criminal Code, the imposed punishment was decided to be considered conditional. T., was sentenced under paragraphs 1), 3) of part 2 of Article 191 of the Criminal Code to 3 years of restriction of freedom, under paragraph 1) of part 2 of Article 192 of the Criminal Code to 5 years of imprisonment, under paragraph 2) of part 2 of Article 194 of the Criminal Code to 3 years and 6 months of restriction of freedom, on the basis of parts 1, 3 of Article 58 of the Criminal Code by absorbing a less severe punishment with a more severe one, finally to 5 years in prison. On the basis of article 63 of the Criminal Code, the imposed punishment was decided to be considered conditional. Probation control has been established and duties have been assigned. The preventive measure in the form of detention has been abolished. In satisfaction of civil claims of I., K. refused. From K. and T., procedural costs related to the examination in the amount of 3,405 tenge were collected from each to the state income, and a compulsory payment in the amount of 50,500 tenge was made to the Victims Compensation Fund. The fate of the physical evidence is resolved. By the decision of the Judicial Board for Criminal Cases of the Almaty City Court dated February 11, 2020, the verdict of the court was changed.
Criminal Defense Law Firm - Robbery and open theft of other people's property
According to paragraph 2) of part 2 of Article 194 of the Criminal Code, the punishment is excluded as unnecessarily imputed. The actions of K. and T. were reclassified from paragraph 1) of part 2 of Article 192 of the Criminal Code to paragraphs 1), 3) of part 2 of Article 191 of the Criminal Code, finally qualified under paragraphs 1), 3) of part 2 of Article 191 of the Criminal Code, which imposed 4 years and 6 months of restriction of freedom. Probation control has been established, duties have been assigned. K. is involved in forced labor for a period of 100 hours per year. The time of K. and T.'s detention from August 9 to December 23, 2019 is counted in the term of punishment. In protest, I.O.The Prosecutor General of the Republic of Kazakhstan requests to review the judicial acts that have taken place, repeal the application of Article 63 of the Criminal Code, and consider K. and T. convicted under paragraphs 1), 3) of part 2 of Article 191 of the Criminal Code to 3 years of restriction of liberty, under paragraph 1) of part 2 of Article 192 of the Criminal Code to 5 years of imprisonment, under paragraph 2) of Part 2 Article 194 of the Criminal Code to 3 years and 6 months of restriction of liberty, on the basis of parts 1, 3 of Article 58 of the Criminal Code, and finally to 5 years of imprisonment while serving a sentence in an institution of the medium-security penal system. He provides the following arguments in support. According to the testimony of the victim I. and witness R., K. brought the knife to I.'s body, i.e. created a real threat to the latter's life and health. The two facts about I. have a time gap and are covered by different actions. The extortion of 130,000 tenge was carried out after 75,000 tenge were stolen by robbery. The punishment imposed is excessively lenient. The guilt of K. and T. in committing a crime against the victim B. is beyond doubt and is not disputed in the protest brought. The court reliably established that K. and T. began to demand money from B., who had previously known T.. I agreed to give 2,000 tenge. When B.'s friend brought the latter's purse, T. took away B.'s purse with 17,500 tenge. Thus, the convicts stole the specified funds and wallets. In fact, the actions of the convicts against B. involved the extortion of 2,000 tenge, which then escalated into the open theft of 17,500 tenge and a purse, i.e. robbery.
However, according to the indictment, actions against the said victim are qualified only under paragraphs 1), 3) of part 2 of Article 191 of the Criminal Code. The court has no right to worsen the situation of convicts. In part of the episode, the following was established in relation to victim I. in the case. On August 7, 2019, K. and T. met with a previously familiar T. – I. They began demanding funds from the latter in the amount of 200,000 tenge. At the same time, T. hit the victim in the stomach with his hand, and K. with the handle of the knife in the forehead area. K. also let the victim touch the knife. I., frightened, gave them 75,000 tenge. However, K. and T. They continued to demand the rest of the money. I. called his mother, then cashed out the funds transferred by her in the amount of 80,000 and 50,000 tenge, which he handed over to the convicts. These circumstances are confirmed by the testimony of the victim I. Thus, I. testified in court that K. and T. (the latter was previously known) began to demand 200,000 tenge from him. When he refused, K. hit him with the handle of a knife, and T. punched him in the stomach. Everything happened from 23:00 hours on August 7 to 04:30 hours on August 8. K. and T. said that if he did not give the money, they would use violence against him. There were threats of bodily harm. He first gave them 75,000 tenge, then called his mother, cashed out the transferred money and gave them 80,000 and 50,000 tenge. According to the disposition of Article 192 of the Criminal Code, robbery is an attack with the aim of stealing someone else's property, combined with violence dangerous to the life or health of the person being attacked, or with the threat of direct use of such violence. That is, the distinguishing features of robbery are surprise and the seizure or attempt to seize property simultaneously with the attack. The threat of violence using an object used as a weapon alone cannot serve as unequivocal evidence of a robbery. It follows from the victim's testimony that the demands for the withdrawal of money lasted for more than one hour. The convicts threatened physical violence if they did not transfer the money. That is, the threat of a knife and physical violence served as a way to reinforce the threat, and its implementation had to be carried out after a certain time. At the same time, the convicts seized part of the property – 75,000 tenge simultaneously with the demand, the remaining 130,000 tenge - after a certain time. Then they fled the scene of the crime. In accordance with paragraph 14 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 23, 2006 No. 6 "On judicial practice in cases of extortion", resolving the issue of delineating robbery provided for in paragraph 1) part 2 of Article 191 of the Criminal Code, and robbery from extortion combined with violence, it should be borne in mind that if in robbery or robbery violence is a means of seizing property and retaining it, then in extortion physical violence is a way of reinforcing the threat, but is not implemented immediately, but after a certain time., in the more or less distant future.
Extortion will also occur if the perpetrator received the property at the same time as making the claim. Based on the above, the judicial board considers that K. and T.'s actions against the victim I. in seizing the amounts of 75,000 and 130,000 tenge are subject to reclassification from paragraph 1) of part 2 of Article 192, paragraph 2) of part 2 of Article 194 of the Criminal Code to paragraphs 1), 2) of part 2 of Article 194 of the Criminal Code, i.e. as extortion, committed with the use of violence, by a group of persons by prior agreement. At the same time, the collegium does not go beyond the prosecution and does not worsen the situation of convicts, since it reclassifies them from a more serious crime of robbery and extortion to a less serious crime. When imposing punishment, the court takes into account the young age of 18 years, partial admission of guilt by both convicts, sincere repentance, positive characteristics from the place of residence, as well as the commission of a crime for the first time, voluntary compensation for damage caused by the crime. No aggravating circumstances have been established.
Criminal Defense Law Firm - Robbery and open theft of other people's property
The court takes into account the position of the victim I. and the legal representative of the victim B. – K., who asked not to deprive the convicts of their liberty. Based on the above, the court considers that the correction of K. and T. is possible without isolation from society with a penalty of 4 years and 6 months of restriction of freedom for everyone. K., as he does not have a permanent job and is not employed in studies, is subject to forced labor. Based on the above, the judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in relation to K. and T. and the verdict regarding the conviction of K. and T. according to paragraphs 1), 3) of part 2 of Article 191 of the Criminal Code, 3 years of restriction of freedom remained unchanged. The actions of K. and T. under paragraph 1) of part 2 of Article 192, paragraph 2) of part 2 of Article 194 of the Criminal Code were reclassified into paragraphs 1), 2) of part 2 of Article 194 of the Criminal Code. K. and T. were sentenced under paragraphs 1), 2) of part 2 of Article 194 of the Criminal Code to 4 years and 6 months of restriction of freedom for each. On the basis of part 3 of Article 58 of the Criminal Code, K. and T. were given the final penalty of 4 years and 6 months of restriction of freedom for each of the crimes by absorbing a less severe punishment with a more severe one. Established in relation to K. etc. probation control for the entire term of the sentence. The convicted persons are charged with the following duties: not to change their permanent place of residence, work, or study without notifying the authorized state body responsible for monitoring the behavior of the convicted person, not to leave the settlement without notifying the probation service. K. and T. are required to report to the probation service at their place of residence within 10 days after the decree enters into force. K. was involved in forced labor in places designated by local executive bodies for a period of 100 hours per year. The time of K. and T.'s detention from August 9 to December 23, 2019 was counted towards the term of punishment at the rate of one day of detention for two days of restriction of freedom. The rest of the judicial acts remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan was partially satisfied.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
