Extortion committed in a group of persons by prior agreement

By the verdict of the judicial board for Criminal Cases of the Karaganda Regional Court dated May 2, 2019: G., previously convicted, on August 23, 2016, under part 3 of Article 188 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) (as amended in 1997) to 4 years in prison with the application of Article 63 of the Criminal Code, conditionally acquitted paragraph 2) of part 2 of Article 191 of the Criminal Code due to the absence of corpus delicti; - convicted under paragraph 2) of part 2 of Article 194 of the Criminal Code to 5 years in prison. On the basis of articles 64, 60 of the Criminal Code, the suspended sentence of the previous sentence was lifted. By partially attaching the unserved part of the sentence, 6 years and 6 months of imprisonment were finally imposed, while serving the sentence in an institution of the maximum security penal system. On the basis of part 1 of Article 14 of the Criminal Code, a recidivism of crimes was recognized in 2002. The term of serving the sentence is calculated from March 16, 2018. By a court verdict, G. was found guilty of extortion committed in a group of persons by prior agreement. In the petition, convict G. asks for a minimum sentence. Indicates that the amnesty Act of 2016 was not applied to the previous criminal record. He was sentenced to 6 years in prison by the verdict of the court of first instance, and to 6 years and 6 months in prison by the court of appeal, with his situation deteriorating. The court reasonably found G. guilty of committing the crime specified in the verdict, based on the evidence that is admissible, on the basis of which, having assessed them in their entirety, correctly established the factual circumstances of the case.

Extortion committed in a group of persons by prior agreement

The actions of G. under paragraph 2 of part 2 of Article 194 of the Criminal Code have been given a correct legal assessment. The appeal verdict of the judicial board for Criminal Cases of the Karaganda Regional Court dated May 2, 2019 was issued after the partial cancellation of the verdict of the specialized interdistrict criminal court of the Karaganda region dated November 23, 2018. By the said verdict of the court of first instance He was acquitted under part 2 of Article 262 of the Criminal Code, sentenced under paragraph 2) of part 4 of Article 191 of the Criminal Code to 4 years in prison, under paragraph 2) of part 2 of Article 194 of the Criminal Code – to 4 years and 6 months in prison, on the basis of part 3 of Article 58 of the Criminal Code by partial addition of punishments – to 5 years in prison.. In accordance with article 64 of the Criminal Code, the suspended sentence imposed by the verdict of August 23, 2016 was lifted, and on the basis of parts 1 and 4 of Article 60 of the Criminal Code, the final term of 6 years of imprisonment was determined by partially attaching the unserved part of the sentence for a period of 1 year. The case was considered on appeal based on the complaints of the defense, as well as the prosecutor's motion, which raised the issue of the illegality of the acquittal under part 2 of Article 262 of the Criminal Code. The prosecutor also pointed out that the court of first instance found G. guilty under paragraph 3) of part 2 of Article 191 of the Criminal Code, but imposed punishment under paragraph 2) of part 4 of Article 191 of the Criminal Code. That is, the prosecutor's motion raised the issue of worsening the situation of convicted G. only in terms of acquittal under part 2 of Article 262 of the Criminal Code. In the rest of the sentence, the issue of worsening the convict's situation and imposing a more severe punishment was not raised. The court of appeal did not agree with the arguments of the prosecutor and recognized the acquittal under part 2 of Article 262 of the Criminal Code as lawful. Moreover, when passing a new sentence, G. was acquitted under paragraph 2) of part 2 of Article 191 of the Criminal Code. At the same time, the appellate instance violated the requirements of part 2 of Article 431 of the Criminal Procedure Code of the Republic of Kazakhstan, according to which the court of appeal has the right to make a decision that worsens the situation of a convicted person only within the limits and on the grounds specified in the complaints and the prosecutor's petition.

The sentence of the court of first instance of G. under paragraph 2) of part 2 of Article 194 of the Criminal Code was imposed in the form of 4 years and 6 months of imprisonment, based on Article 60 of the Criminal Code, 1 year of the unserved part of the sentence under the previous sentence was added to the imposed punishment. At the same time, the court of appeal, when sentencing, imposed a more severe sentence of 5 years in prison under paragraph 2) of part 2 of Article 194 of the Criminal Code and added 1 year and 6 months of imprisonment instead of 1 year, thereby unreasonably worsening the situation of convict G. In addition, by the verdict of the Kazybekbi district Court on August 23, 2016, G. was sentenced under part 3 of Article 188 of the Criminal Code to 4 years in prison with the application of Article 63 of the Criminal Code on probation. It follows from the verdict that the damage in the case has been fully compensated. In accordance with part 2 of Article 4 of the Law of the Republic of Kazakhstan dated December 13, 2016 "On Amnesty in connection with the twenty–fifth anniversary of Independence of the Republic of Kazakhstan" (hereinafter referred to as the Amnesty Law), the unserved part of the sentence as of the date of enactment of this Law is subject to reduction by one-fourth to persons convicted of committing a serious crime who do not fall under the the effect of paragraph 1 of this article, in the case of full compensation for the damage caused by the crime. In accordance with paragraph 6 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 15 "On judicial practice on the application of Article 6 of the Criminal Code of the Republic of Kazakhstan", the courts of first, appellate and cassation instances may bring into line previous sentences against persons subject to the conditions of Article 6 of the Criminal Code, if these sentences they were not reviewed in the order of execution. Since the verdict of August 23, 2016 in respect of If he has not been reviewed in the order of execution, the board considers it necessary to apply part 2 of Article 4 of the Amnesty Law to him, reducing the unserved part of the sentence by one-fourth. According to the court's verdict of August 23, 2016, G. was detained from April 16 to August 23, 2016, that is, for 4 months and 7 days. From the clarifications of paragraph 9-1 of the normative resolution "On certain issues of the appointment of criminal punishment" dated June 25, 2015 No. 4 (with amendments and additions dated December 11, 2020), it follows that when a person is sentenced to probation with the application of Article 63 of the Criminal Code, the time of his detention before the sentence enters into force is counted in the term of serving the sentence according to the rules of part 3 of Article 62 of the Criminal Code, taking into account the type of institution of the penal system in which he was to serve his sentence, subject to his conviction to real imprisonment.

Extortion committed in a group of persons by prior agreement

Since convict G., when sentenced to real imprisonment, had to serve his sentence in a medium-security institution, in accordance with paragraph 2) According to Part 2 of Article 62 of the Criminal Code, the time of detention is counted in the term of punishment at the rate of one day for one and a half days of serving a sentence of imprisonment in a medium-security institution. In this regard, the sentence imposed by the court in the form of 4 years of suspended imprisonment is subject to reduction, taking into account the period of detention by 6 months and 10 days (4 months and 7 days by 1.5). When applying the Amnesty Law, the imposed punishment is subject to reduction by 10 months and 12 days (1/4 of the unserved sentence of 3 years and 5 months and 20 days). Taking into account that convict G. committed the crime in this case during the period of probation, his punishment must be determined taking into account the rules of parts 1, 4 of Article 60 of the Criminal Code. Thus, due to the incorrect application of the criminal procedure law, which led to the incorrect imposition of punishment, the verdict in this case is subject to change. Based on the above, the judicial Board for Criminal Cases of the Supreme Court changed the verdict of the court of appeal against G. G. under paragraph 2) of part 2 of Article 194 of the Criminal Code, 4 years and 6 months of imprisonment were imposed. The sentence imposed on G. by the verdict of the court of first instance dated August 23, 2016 on the basis of part 2 of Article 4 of the Law of the Republic of Kazakhstan dated December 13, 2016 "On Amnesty in connection with the twenty-fifth anniversary of Independence of the Republic of Kazakhstan" was reduced by 10 months and 12 days. It was decided to consider him sentenced under part 3 of Article 188 of the Criminal Code to 3 years, 1 month, and 18 days of imprisonment with the application of Article 63 of the Criminal Code on probation. In accordance with article 64 of the Criminal Code, the suspended sentence for the previous sentence was lifted and, on the basis of parts 1 and 4 of Article 60 of the Criminal Code, by partially attaching the unserved part of the sentence of 8 months of imprisonment, 5 years and 2 months of imprisonment were finally imposed. The rest of the verdict remains unchanged. The convicted person's petition has been granted. 

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