According to the presumption of innocence, a guilty verdict cannot be based on assumptions, and it must be supported by a sufficient set of clear evidence

By the verdict of the Enbekshi District Court of Shymkent, South Kazakhstan region, dated November 15, 2013: M. was not previously convicted, sentenced to pay a fine of 865,500 tenge in the amount of 500 monthly calculation indices by Article 192-1 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) (as amended in 1997). The issue of physical evidence is resolved in accordance with the procedure established by Article 118 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code). By the court verdict M. "Director of "" e ""LLP, executive director of "" T "" LLP, who was found guilty of causing a large amount of damage to the state in the amount of 42,742,928 tenge of Value Added Tax, making transactions by a private business entity without actually performing work, providing services, sending goods, selling fake invoices for the sale of building materials, the total amount of which was not placed on it, knowing that "" C "" LLP does not actually have the necessary building materials at the disposal of these companies,. The verdict was not reviewed on appeal. In the protest of the prosecutor general, the court verdict was made on unanalyzed, unconfirmed evidence, there was no evidence for conducting operational search measures against M., Considering that the evidence was obtained by provocation, the verdict of the Enbekshi District Court of November 15, 2013, which was issued against him, was annulled, declared innocent by Article 192-1 of the criminal code and asked to terminate the criminal case. After the prosecutor annulled the sentence of N., recognized M. innocent, heard the opinion on the termination of the criminal case, studied the materials of the criminal case, the motives in the protest, the Judicial Board of the Supreme Court of the Republic of Kazakhstan on criminal cases came to the conclusion as follows. Paragraphs 8), 9) of part three of Article 77 of the Constitution of the Republic of Kazakhstan state that any suspicion of a person's guilt is considered in favor of the accused, and evidence obtained by illegal means has no legal force, no one should be convicted only on the basis of his personal confession. In accordance with paragraph 1) of the third part of Article 484, paragraph 1) of the first part of Article 485, paragraph 3) of the second part of Article 485, the Supreme Court shall review judicial acts that have entered into legal force by local and other courts in a cassation manner on the protest of the prosecutor general of the Republic of Kazakhstan in cases of non-compliance with the appeal procedure for appealing them,  In this criminal case, the requirements of this law were grossly violated, the consequences of which led to the conviction of an innocent person. According to the materials of the case, a statement was attached to the criminal case, indicating that the senior inspector of the PPP for the Sairam region E. received a notification that officials of LLP "E" and LLP "T" are engaged in the sale of false invoices for the purpose of tax evasion and illegal profit without the intention of entrepreneurship, that is, without concluding any transaction agreements. Convicted M. and Witness B. in their answers, they said that they met through the internet on October 7, 2013.

According to the presumption of innocence, a guilty verdict cannot be based on assumptions, and it must be supported by a sufficient set of clear evidence

However, the investigative body did not check in it the sufficiency of data indicating signs of a criminal offense, which is being prepared on the received notification in relation to LLP "E" and LLP "t". In the absence of circumstances that exclude proceedings in the case in accordance with article 180 of the CPC, sufficient data indicating signs of a criminal offense-the reason for initiating a pre-trial investigation. However, the pre-trial investigation body ignored these requirements of the law, not checking the adequacy of data indicating signs of a criminal offense, which is being prepared on the received notification in relation to LLP "E" and LLP "t". The subjective side of the composition of Article 192-1 of the criminal code is characterized by direct intentional intent, that is, the intent of the perpetrator should be aimed at organizing the receipt of property benefits or writing false invoices for tax evasion by counterparties, and appear before carrying out operational search measures. Witness in the case B. He did not work in LLC" c", and he did not intend to evade taxes, on the contrary, by his actions he provoked M. to commit a crime. In his response, the witness stated that B. gave his consent to the proposal made in October 2013 to participate in the disclosure of false invoice data by financial police officers, met M. as the head of LLP "E" and LLP "t" dated October 7, 2013, M. was detained during the transfer of invoices dated October 11, 2013.  According to M.'s answer, on October 7, 2013, through the internet, he met a citizen named "Gaukhar", met in the cafe "Tau samaly", located in Shymkent, agreed on the sale of invoices for 398,934,000 tenge at a rate of 9.8 percent, and during the sale of invoices for October 11, 2013, he was detained by financial police officers. In the criminal case, there is no data on the fact that M. is actively writing false invoices or the results of operational-search measures, since the investigative body has not established sufficient grounds, as well as in the materials of the criminal case B.the application for consent to voluntarily participate in the conduct of operational search measures is not registered.

In addition, it is established that B. participated in the disclosure of several crimes by provocation. For example, by the decision of the Supreme Court of June 2, 2020, the verdict of the Turksib District Court of Almaty on January 29, 2016 against T. was canceled, and he was acquitted. By the decision of the Supreme Court of October 22, 2020, by the verdict of the Al-Farabi District Court of Shymkent of June 21, 2016, O., A., K. and Sh. convicted by Article 28 of the third, fourth, fifth parts, Article 24 of the third part, Article 216 of the third part of the criminal code were also acquitted. "In accordance with paragraph 24) of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 8 ""on the practice of considering some corruption crimes"", provocative and incitement actions, consisting in giving a bribe to a person when consent is obtained as a result of persuading him to take a bribe in the presence of circumstances testifying that there is no intention to take a bribe without the intervention of criminal prosecution bodies and the crime has not been committed, eliminate the criminality of the act committed by the person in respect of whom this act was carried out." In this criminal case, there was a case in which B. provoked M. to commit a crime. In accordance with paragraph 18) of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4" on the court verdict " and part three of Article 393 of the CPC, it is stated that, in accordance with the presumption of innocence, the guilty verdict cannot be based on assumptions and must be confirmed by a sufficient set of clear evidence. In this case, the court verdict issued under Article 192-1 of the Criminal Code against M. is canceled in accordance with paragraph 2) of part one of Article 35 of the criminal code, due to the absence of the composition of a criminal offense in his actions, and the criminal case is subject to termination. Adoption of this decision in accordance with the requirements of Article 39 of the CPC, the violated right of M. is restored on the basis of Chapter 4 of the CPC, and the right to compensation for damage caused by illegal actions of the body conducting criminal proceedings is subject to recognition. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan canceled the verdict of the court of first instance against the convicted M., and the criminal case was suspended from production in accordance with paragraph 2) of part one of Article 35 of the criminal code due to the absence of the composition of the crime in the actions of the convicted M. In accordance with Chapter 4 of the CPC, the violated right of M. is restored and the body conducting criminal proceedings 

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