Found guilty of illegal entry into production premises and secret embezzlement of other people's property
By the verdict of the Sairam District Court of Turkestan region dated May 14, 2019: M. was sentenced to 3 years of restriction of freedom by paragraphs 1), 2), 3) of the second part of Article 188 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code) without a previous conviction. A. previously convicted persons sentenced to restriction of liberty for 3 years by paragraphs 1), 2), 3) of the second part of Article 188 of the criminal code. In accordance with the third part of Article 62 of the criminal code, the terms of detention for convicted M. from January 5 to 24, 2019 and A. from 5 to 10, 2019 are calculated for one day to one day of punishment in the form of restriction of freedom, and the term of the imposed sentence of 1 month and 3 days is considered to have been served. By the verdict of the court, M. and A. were found guilty between December 2018 and January 2019 of illegal entry into production premises by preliminary collusion with a group of people and repeated secret embezzlement of other people's property. The verdict was not considered on appeal. In his protest, the prosecutor general did not dispute the differentiation and justification of the actions of convicted persons, but asked to change the court's verdict in connection with the incorrect application of the criminal law in the process of imposing penalties on them. The guilt of the convicted persons on the commission of the crime against the charges of M. and A. is fully confirmed by the totality of evidence, which was detailed, carefully checked and duly evaluated at the main trial. Thus, the conclusion of the court, which differentiated the actions of convicted persons M. and A. by paragraphs 1), 2), 3) of the second part of Article 188 of the criminal code, is justified and correct, this circumstance is not disputed even in the protest. However, the arguments indicated by the prosecutor in the protest are reasonable and therefore subject to satisfaction. In accordance with the verdict, in the course of imposing sentences on M. and A., the court recognized their full recognition of guilt, sincere repentance as circumstances mitigating the responsibility and punishment of convicted persons, and there are no circumstances aggravating their responsibility and punishment. Paragraph 1) of part two of Article 55 of the Criminal Code states that in the presence of mitigating circumstances and in the absence of aggravating circumstances that are not provided for as a sign of a crime committed, the term or amount of the main type of punishment may not exceed half of the maximum term or amount provided for in the relevant article of the special part of this code, when committing a crime of less serious or moderate severity.
Found guilty of illegal entry into production premises and secret embezzlement of other people's property
The sanction of the second part of Article 188 of the criminal code, in which the criminal behavior of convicted persons M. and A. is differentiated, provides for a restriction of freedom up to 5 years or a sentence of imprisonment for the same period. Therefore, in accordance with the requirement of Article 11 of the Criminal Code, a criminal offense in which convicted persons are found guilty belongs to the category of a crime of medium severity. Thus, the amount of restriction of Liberty imposed on convicted persons by paragraphs 1), 2), 3) of the second part of Article 188 of the criminal code may not exceed 2 years and 6 months on the basis of Paragraph 1) of the second part of Article 55 of the criminal code. Therefore, the sentence is subject to change, the amount of punishment imposed on convicted persons is reduced. At the same time, according to the third part of Article 62 of the criminal code, M. from January 5 to 24, 2019, and A. from January 5 to 10, 2019, those who were in custody were calculated for the term of punishment in the form of restriction of freedom-one day per day, and the court calculated a period of 1 month and 3 days more for each of them. As it is established from the materials of the criminal case, M. was held in custody from January 5 to 24, 2019, that is, for 20 days, and A. from 5 to 10, 2019, that is, for 6 days. So, it is unreasonable for the court to calculate a period of 1 month and 3 days for their term of punishment. At the same time, since the motivational part of the sentence incorrectly states that the crime committed by M. and A. belongs to the category of "serious crime", it is also subject to change. The judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan, in respect of convicted M. and A., changed the verdict of the court of First Instance, and the sentence of restriction of Liberty imposed on M. and A. by paragraphs 1), 2), 3) of the second part of Article 188 of the criminal code was reduced to 2 years and 6 months in accordance with paragraph 2) of the second part of Article 55 of the criminal code. In accordance with the third part of Article 62 of the criminal code, the term of the sentence imposed on M. was considered to have been served for 20 days, for A.-for 6 days. In the motivational part of the sentence, the statement that the crime committed by M. and A. belongs to the category of "serious" crimes was changed to belong to the category of crimes of "moderate severity". The rest of the sentence was left unchanged. The prosecutor general's protest was satisfied.
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