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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE KYRGYZ REPUBLIC

of December 5, 2003 No. 18

About court practice on cases on abaction (practice of courts of the Talas region of the Kyrgyz Republic)

Having heard and having discussed results of generalization of court practice on cases on abaction on the example of the Talas region, the plenum of the Supreme Court of the Kyrgyz Republic notes that courts consider cases of this category according to the current legislation. At the same time, in activity of the courts there are shortcomings and violations of the laws.

Some courts make mistakes in qualification of criminal acts of perpetrators. Not on all cases the principles of individualization in case of assignment of punishment are observed.

So, not always courts react to the facts of not identification and not accountability of all persons who committed crimes on abaction.

In some cases to persons who committed serious crimes soft measures penalties are unreasonably imposed. Along with it courts sometimes unreasonably apply imprisonment, including for short terms, to persons whose correction and re-education is possible without isolation from society.

Not always in the cases provided by the law it is applied to persons condemned for abaction, additional measure property nakazaniyakonfiskation.

Measures for ensuring compensation of material damage are not always taken, civil actions of the victims without consideration are unreasonably left.

Courts do not pay necessary attention to identification of the reasons and conditions promoting making of crimes on abaction and taking measures to their elimination.

For the purpose of elimination of noted shortcomings of work of the courts and the correct, uniform application by courts of the legislation on abaction, being guided by article 15 of the Law "About the Supreme Court of the Kyrgyz Republic and Local Courts", plenum of the Supreme Court of the Kyrgyz Republic

decides:

1. Draw the attention of courts to need of strengthening of responsibility for crimes on abaction, compliance with law by hearing of cases of this category.

By hearing of cases about abaction it is strict to fulfill requirements of Art. 19 of the Code of penal procedure of the Kyrgyz Republic about comprehensive, complete and objective investigation of circumstances of the committed crime.

2. By hearing of cases about abaction it must be kept in mind that the abaction is the secret stealing of foreign cattle committed in the absence of the owner or other owner of this cattle, or strangers or and at their presence, but is imperceptible for them. When specified persons saw what is stolen, however the guilty person, proceeding from surrounding situation, believed what is effective secretly, the deeds also are secret plunder of foreign cattle as crucial importance for assessment of actions of the guilty person has its subjective idea of nature of made.

If person which is present at unlawful taking of foreign cattle does not understand illegality of these actions or is close relative of the guilty person who expects with respect thereto that during withdrawal of property he will not meet counteraction from the specified person, the deeds should be qualified as abaction. If the listed persons took measures to suppression of plunder of foreign cattle (for example, required to stop these illegal actions), then responsibility of the guilty person for deeds comes under article 167 of the Criminal code of the Kyrgyz Republic.

Stealing of the cattle otherwise, than theft, is qualified under the relevant articles of the Criminal code of the Kyrgyz Republic.

3. If during making of abaction of action of the guilty person are found the owner or other owner of the cattle or other persons, however, the guilty person, understanding it, continues to make unlawful taking of the cattle or its deduction, the deeds should be qualified as robbery, and in case of use of violence for the purpose of occupancy of scotomas or for its deduction directly after withdrawal, these actions shall be qualified, depending on nature of the applied violence as robbery (the p. 2 of Art. 167 of UK of the Kyrgyz Republic) or robbery (Art. 168 of UK of the Kyrgyz Republic).

If violent acts are made upon termination of abaction with the purpose to disappear or avoid detention, they cannot be considered as robbery or robbery and are subject to independent qualification under the relevant articles of the Criminal code of the Kyrgyz Republic depending on nature of these actions and the come effects.

4. Plunder of foreign cattle is considered completed crime if foreign cattle is withdrawn, and the guilty person has real opportunity to use it or to dispose at discretion (for example, to turn the stolen cattle in own favor or for benefit of other persons, to dispose of it with a mercenary motive otherwise).

Courts shall mean that according to the law plunder of foreign cattle the intentional illegal irretrievable address to the property or to property of other persons of foreign cattle is recognized. The mercenary motive for structure of this crime is obligatory.

Do not form structure of abaction the illegal actions directed to occupancy by foreign cattle not with a mercenary motive, and, for example, for the purpose of its temporary use with the subsequent return to the owner or in connection with the expected right to this cattle. Depending on the facts of the case such actions in the presence to that the bases are subject to qualification under article 353 of the Criminal code of the Kyrgyz Republic or other articles of the Criminal code of the Kyrgyz Republic.

5. According to part two of article 18 of the Criminal code of the Kyrgyz Republic the subject of crime, stipulated in Article 165 Criminal codes of the Kyrgyz Republic, person which reached by the time of making of theft of the cattle, fourteen-year age is.

6. The abaction made by group of persons (item 2 of the p. 2 of Art. 165 of UK of the Kyrgyz Republic) is characterized by the fact that two and more persons without previous concert (item 1 of the p. 2 of Art. 31 of UK of the Kyrgyz Republic) which owing to article 17 of the Criminal code of the Kyrgyz Republic are subject to criminal liability for deeds take part in crime execution. If person committed theft of the cattle by means of use of other persons which are not subject to criminal liability owing to age, diminished responsibility or other circumstances, its action (in the absence of other qualifying signs) it is necessary to qualify according to p.1 Art. 165 of the Criminal code of the Kyrgyz Republic as direct principal offender (p. 3 of Art. 30 of UK of the Kyrgyz Republic).

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