Acquitted due to lack of evidence of the commission of a crime

By the verdict of the court No. 2 of Ust-Kamenogorsk, East Kazakhstan region, dated November 30, 2018: S., previously convicted: 1) on October 7, 2002, under paragraph "c" of part 2 of Article 178, paragraphs "a, b, c" of part 2 of Article 175, paragraphs "a, b, e" of part 2 of Article 120, part 3 of Article 24, paragraphs "a, b, e" of part 2 of Article 120, part 4 of Article 251, part 3 of Article 58 of the Criminal Code to 8 years of imprisonment; 2) on August 13, 2004, under Article 360, Article 60 of the Criminal Code to 7 years in prison, - sentenced under part 1 of Article 262 of the Criminal Code to 9 years in prison, under paragraph 1 of part 4 of Article 191 of the Criminal Code to 7 years in prison, under paragraph 1 of part 4 of Article 188 of the Criminal Code to 5 years in prison, under part 3 of Article 24, paragraph 1 of part 4 of Article 188 of the Criminal Code to 5 years of imprisonment, under part 2 of Article 296 of the Criminal Code to community service for up to one hundred and sixty hours. Based on part 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment, a more severe one was finally sentenced to 9 years of imprisonment to be served in an institution of the maximum security penal system. In accordance with part 1 of Article 14 of the Criminal Code, a recidivism of crimes was recognized in S.'s actions. A., previously convicted: 1) on February 11, 2008, under part 2 of Article 259 of the Criminal Code, he was sentenced to 5 years in prison, under part 1 of Article 262 of the Criminal Code to 8 years in prison, under paragraph 1 of part 4 of Article 188 of the Criminal Code to 6 years in prison, under part 3 of Article 24 of the Criminal Code, paragraph 1 of part 4 of Article 188 of the Criminal Code to 5 years of imprisonment. On the basis of part 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment, a more severe one was finally sentenced to 8 years of imprisonment to be served in an institution of the medium-security penal system. He was found not guilty under paragraph 1 of part 4 of Article 191 of the Criminal Code (episode B.) and acquitted for failure to prove the commission of a crime.

The term of serving the sentence was calculated from December 26, 2017. Ch., previously convicted, convictions extinguished, sentenced under part 2 of Article 262 of the Criminal Code to 6 years in prison, under paragraph 1 of part 4 of Article 188 of the Criminal Code to 5 years in prison, under part 3 of Article 24 of the Criminal Code, paragraph 1 of part 4 of Article 188 of the Criminal Code to 5 years of imprisonment, according to part 2 of Article 287 of the Criminal Code to 6 months of imprisonment. On the basis of parts 1, 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment, 6 years of imprisonment were finally imposed with serving the sentence in an institution of the medium-security penal system. The term of serving the sentence has been calculated since December 26, 2017. M., who had no previous criminal record, was sentenced to 6 years in prison under part 2 of Article 262 of the Criminal Code, to 5 years in prison under paragraph 1 of part 4 of Article 188 of the Criminal Code, to 5 years under part 3 of Article 24 of the Criminal Code, paragraph 1 of part 4 of Article 188 of the Criminal Code deprivation of liberty. Based on part 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment with a more severe one, 6 years were finally assigned to serve the sentence in an institution of the medium-security penal system. The term of serving the sentence was calculated from December 26, 2017. S., A., Ch. and M. They were found guilty of committing 13 episodes of secret theft of other people's property with entry into residential premises and 1 episode of open theft of other people's property as part of an organized criminal group from September 2016 to December 2017.

Acquitted due to lack of evidence of the commission of a crime

By a decision of the judicial Board for Criminal Cases of the East Kazakhstan Regional Court dated April 19, 2019, the court's verdict was overturned and a new guilty verdict was issued. By the verdict of the judicial board for criminal cases of the East Kazakhstan Regional Court dated June 28, 2019, S. was found guilty and sentenced under part 3 of Article 191 of the Criminal Code to 6 years in prison, under part 3 of Satya 188 of the Criminal Code to 4 years in prison, under part 3 of Article 24, paragraphs 1, 2, 3 of part 2 of Article 188 to 2 years and 6 months of imprisonment, under part 2 of Article 296 of the Criminal Code to community service for 100 hours. Based on part 3 of Article 58 of the Criminal Code, 6 years of imprisonment were finally imposed and the sentence was served in an institution of the maximum security penal system. In addition, S. was found innocent and acquitted under part 1 of Article 262 of the Criminal Code and under paragraphs 1, 3 of part 4 of Article 188 of the Criminal Code (episodes of theft of property of victims S., M. and D.) due to the absence of criminal offenses in his actions. In accordance with part 1 of Article 14 of the Criminal Code, a recidivism of crimes was recognized in S.'s actions. The term of serving the sentence is calculated from December 26, 2017. He was sentenced under part 3 of Article 188 of the Criminal Code to 3 years and 6 months in prison, and under part 3 of Article 24, paragraphs 1, 2, and 3 of part 2 of Article 188 of the Criminal Code to 2 years in prison. Based on part 3 of Article 58 of the Criminal Code, 3 years and 6 months of imprisonment were finally imposed, while serving the sentence in an institution of the medium-security penal system. In addition, A. was found innocent and acquitted under part 1 of Article 262 of the Criminal Code, paragraph 1 of part 4 of Article 191 of the Criminal Code and part 4 of Article 188 of the Criminal Code (episodes of theft of property of S., Ch., B., U., B., V. and K.) for the absence of elements of criminal offenses in his actions. The term of serving the sentence has been calculated since December 26, 2017. Ch. was sentenced under paragraphs 1, 3 of part 2 of Article 188 of the Criminal Code to 2 years in prison, under part 3 of Article 24, paragraphs 1, 2 of part 2 of Article 188 of the Criminal Code to 1 year 6 months in prison, under part 2 of Article 287 of the Criminal Code to 6 months deprivation of liberty. On the basis of part 3 of Article 58 of the Criminal Code, 2 years of imprisonment were finally imposed and the sentence was served in an institution of the minimum security penal system. He was found innocent and acquitted under part 2 of Article 262 of the Criminal Code and paragraph 1 of part 4 of Article 188 of the Criminal Code (episode of theft of victim S.'s property) due to the absence of elements of criminal offenses in his actions. The term of serving the sentence was calculated from December 26, 2017. M. was sentenced under paragraphs 1, 3 of part 2 of Article 188 of the Criminal Code to 1 year, 6 months and 3 days of imprisonment. He was released from custody from the courtroom due to serving his sentence. He was found innocent and acquitted under part 2 of Article 262 of the Criminal Code and paragraph 1 of part 4 of Article 188 of the Criminal Code and part 3 of Article 24, paragraphs 1, 2, 3, part 2 of Article 188 of the Criminal Code (episodes of theft of the property of the victims K. and M.) for the absence of elements of criminal offenses in his actions.

Acquitted due to lack of evidence of the commission of a crime

In the protest, the Prosecutor General of the Republic of Kazakhstan points out that the judicial acts against the convicts are illegal and are subject to cancellation due to the inconsistency of the court's conclusions with the actual circumstances of the case, the presence of significant violations of the norms of the criminal procedure law and the improper application of the criminal law by the court, which led to unjustified partial justification and the imposition of excessively lenient punishment. Considers that the court of appeal unreasonably excluded from the evidence the materials of the operational search activities carried out in the period from November 13, 2017 to December 26, 2017. And also the material evidence was incorrectly returned: Subaru Forester, Mr. 488 MZA16, and Subaru Outback, Mr. 501 WEZ 05, which are the instruments of crimes and, in accordance with Part 1 and paragraph 1 of Part 3 of Article 118, are subject to confiscation. Requests to cancel the judicial acts against the convicts and send the criminal case to the judicial board for criminal cases of the East Kazakhstan Regional Court for a new judicial review in a different composition. The court's conclusions on the guilt of those convicted of the acts they are accused of are based on comprehensively, fully and objectively examined evidence provided in the verdict of the court of appeal. The court, based on the totality of evidence, correctly established the factual circumstances of the case for all episodes of offenses. The guilt of the convicted persons is proved by the testimony of witnesses, victims, search, seizure protocols, physical evidence and other evidence examined in court. Therefore, the prosecutor's statement about the unreasonableness of the partial acquittal of convicted persons in relation to the victims A., Ch., B., U., S., D. should be dismissed due to the lack of evidence of the guilt of those convicted in these episodes of crimes and the legality of the decision. The prosecutor's arguments that the guilt of these episodes was proved by the verdict of court No. 2 Ust-Kamenogorsk, dated February 20, 2019, by which K. was found guilty under part 2 of Article 262 and paragraph 1 of part 4 of Article 188 of the Criminal Code, that is, of committing secret theft of other people's property as part of an organized criminal group, repeatedly, with illegal entry into residential premises (as part of S., A., Ch.) are unfounded. The court's verdict against K. was passed in the framework of conciliation proceedings without challenging the evidence collected by the preliminary investigation authorities and without investigating the circumstances of the case. And in the descriptive part of the verdict against K. The specific details of the persons who committed crimes with him are not specified. In this regard, it is unacceptable to use the above-mentioned court verdict and K.'s testimony in the process of proving the guilt of convicts and to build accusations against others, that is, convicts. The conclusions of the court of appeal on the acquittal of S., A. on charges of creating an organized criminal group and leading it under part 1 of Article 262 of the Criminal Code, as well as Ch., M. under part 2 of Article 262 of the Criminal Code are correct, based on the totality of the evidence examined.

Acquitted due to lack of evidence of the commission of a crime

The creation of an organized group and its leadership, as well as participation in it, is characterized by direct intent, involves active actions aimed at organizing it and ensuring that it is necessary for its smooth operation, as well as joining such criminal formations and directly committing planned crimes. Evidence indicating that S. and A. They committed active actions aimed at organizing a criminal group and providing the necessary means for its functioning, involving other members in it, establishing rules of communication between accomplices of the group, as well as planning future actions if a special relationship arises in which a detailed plan is drawn up, which is necessary to find guilty of creating and leading an organized group. a criminal group under part 1 of Article 264 of the Criminal Code, there is no case. The materials of the criminal case reliably established that the convicts S., A., and other members of the group, Ch. and M. were unfamiliar, the thefts were committed by them at considerable intervals, in a group with different people without prior planning of their criminal actions. Within the meaning of the criminal law, an organized criminal group is defined by two criteria:1) stability and 2) the purpose of joining a group to commit one or more criminal offenses. In the absence of at least one of these signs in the actions of the perpetrators, the composition of a criminal offense is not formed, the commission of an offense by an organized criminal group. In the framework of this criminal case, the stability and stable nature of the criminal group has not been proven, therefore, the court of appeal correctly qualified the actions of the convicts as actions committed by a group of persons by prior agreement. The panel also finds the prosecutor's arguments that the appellate instance unreasonably excluded from the evidence the materials of the operational search activities carried out between November 13, 2017 and December 26, 2017, to be untenable. Thus, in accordance with paragraph 12 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013 No. 3 "On the application in criminal proceedings of certain norms of legislation regulating the protection of state secrets", the prosecution authorities attach to the criminal case the materials of operational investigative activities as material evidence and (or) documents in accordance with articles 121 and (or) 122 of the CPC. Thus, the inclusion of physical evidence and documents obtained as a result of operational investigative activities in the materials of the criminal case and their inclusion in the inventory is a prerequisite. Failure to comply with the specified requirements of the criminal procedure law in accordance with the requirements of Article 112 of the CPC entails the recognition of factual data obtained in the course of operational investigative activities as inadmissible as evidence.

At the same time, it should be noted that this provision of the law on the mandatory inclusion in the inventory of the results obtained by secret means applies equally to the materials of special operational search activities, as well as to materials obtained during general operational search activities. Due to the fact that the materials of the operational search measures carried out against convicts S., A., Ch. and M. (volume 35, l.d. 133) with the attached video disc of special operational search measures from November 14, 2017 (volume 36, l.d. 1-5) at the time of consideration of this case, the materials of the criminal case were not attached and included in the inventory of the materials of the criminal case, the court of appeal reasonably concluded that they were excluded from the evidence and declared the materials of the operational search activities conducted between November 13, 2017 and December 26, 2017 inadmissible as evidence. The prosecutor's arguments that the court of appeal improperly returned the physical evidence - Subaru Forester, Mr. 488 MZA16, and Subaru Outback, Mr. 501 WEZ 05 cars, which are instruments of crimes and subject to confiscation in accordance with Parts 1 and paragraph 1 of Part 3 of Article 118, the board considers unfounded, and therefore the protest in this part is also subject to rejection. It should be noted that the attribution of property to objects of confiscation on the basis of the provisions of part 3 of Article 113 of the CPC is a circumstance included in the subject of proof. If there is no information in the case about the criminal nature of the origin of the property, about the use of property as an instrument of offense, then confiscation is not applied. The Board considers that the court of appeal reasonably refused to recognize the Subaru Forester, Mr. 488 MZA 16, and Subaru Outback, Mr. 501 WEZ 05 cars as instruments of crime, since they were not used as such in the commission of crimes. There is no information in the case file that these vehicles were illegally obtained or purchased with funds obtained by criminal means. On the contrary, the court of appeal reliably established that the Subaru Outback car, Mr. 501 WEZ 05, belongs to N., and the Subaru Forester, Mr. 488 MZA16, belongs to E. However, this information about the legal owners of the cars is not contained in the protest. Thus, the court issued a guilty verdict against the convicts, taking into account the totality of the evidence in the case, in compliance with the principle of their sufficiency, relevance and admissibility.

Acquitted due to lack of evidence of the commission of a crime

There were no significant violations of the norms of the criminal procedure law during the consideration of the case, and the requirements for the protection of the rights of convicts were met. Based on the evidence examined, the court assessed them from the point of view of relevance, admissibility, reliability, and all the evidence collected together was sufficient to resolve the criminal case, and came to the correct conclusion that the convicts were proven guilty of the crimes they were charged with. In such circumstances, the actions of those convicted by the court of appeal were given a proper legal assessment. The measure of punishment is imposed on convicted persons, taking into account the nature and degree of public danger of the crime committed by them, taking into account the circumstances mitigating and aggravating their responsibility and punishment, within the limits of the sanction of the article under which they were found guilty. Based on the above, the judicial board for criminal cases of the Supreme Court upheld the judicial acts of local courts in respect of S., A., Ch., M.. The protest of the Prosecutor General of the Republic of Kazakhstan was left without satisfaction. 

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