An accusation of negligence is possible only if an official has failed to fulfill the duties assigned to him and their non-fulfillment has resulted in a significant violation of the rights and legitimate interests of citizens or organizations or the legally protected interests of society or the state.
By the verdict of the Kordai District Court dated February 14, 2012, T., was sentenced under Part 1 of Article 316 of the Criminal Code to a fine of 100 monthly calculation indices in the amount of 151,200 tenge. On the basis of paragraph 3 of Part 3 of the Law "On Amnesty in connection with the twentieth anniversary of the State Independence of the Republic of Kazakhstan" dated December 28, 2011, T. was released from punishment. By the verdict of the court of T. He was found guilty of holding the position of a specialist at the customs post in Zhambyl region, being an official, being on daily duty, improperly performed his duties, due to his negligent attitude to the service, he missed a car with cargo without paying customs duties and fees, which entailed a significant violation of the legally protected interests of the state in the amount of 47,166 tenge. The Appeal judicial board of the Zhambyl regional court upheld the verdict. Also, the cassation judicial board of the regional court left the above judicial acts unchanged. The Supervisory Judicial Board of the Supreme Court, having studied the materials of the criminal case, came to the conclusion that the court decisions against T. were unjustified and illegal. 316 of the Criminal Code, liability for negligence is provided only if the failure or improper performance by an official of his duties due to unfair or negligent attitude to the service has resulted in a significant violation of the rights and legitimate interests of citizens or organizations or the legally protected interests of society or the state. The charge of negligence by T. is based on the fact that as a result of his actions, expressed in the formal verification of the weight of the goods transported on the back of a passenger car driven by S. From Kyrgyzstan to Kazakhstan, goods with a total customs value of 114,450 tenge were imported into the customs territory, and due to non-payment of customs duties and taxes, damage was caused to the state in the amount of 47,166 tenge.
The indicated amount of damage is based on calculations made by a customs specialist - A., based on a given weight of 200 kg of transported handrails. Meanwhile, this calculation, based on the accusation, is presumptive. According to the testimony of specialist A. at the court hearing, the calculation was made at the request of the financial police based on the attached copies of the invoice, receipt, cargo customs declaration, certificate of origin, examination act of the Chamber of Commerce and Industry of the Kyrgyz Republic dated 09/05/2011. The calculation is based on the certified copies of the documents provided. The amount of customs duties and charges calculated in the presence of the original certificate of origin would have decreased to 27,938 tenge. If S. had decided to clear the cargo according to a simplified procedure, according to a receipt order, provided that his cargo really is 200 kg, it would have cost him 12% less VAT on the value of the cargo, which in monetary terms would have amounted to 4,200 soms or 13,734 tenge. The choice of the declaration procedure depends on the declarant himself. It has not been substantiated in the case on the basis of which circumstances the maximum amount of 47,166 tenge was allegedly used as the basis of the charge, and not the amount of 13,734 tenge under the simplified procedure, and this issue was not the subject of discussion. Witness A., who calculated the damage depending on the weight of the railings carried by S., also explained that she had not been provided with an act of weighing the cargo. The act of weighing the goods (metal railings) dated 08/23/2011 was presented by a representative of the prosecutor's office only in the court of first instance and is not listed in the inventory of the criminal case against T. The said act was drawn up by assistant prosecutor Sh., signed by witnesses Zh. and A., who explained that on 08/23/2011, metal railings and a separate car were weighed at the customs in-depth inspection post. Meanwhile, questioned as witnesses at the meeting of the appeals board, G., E. they explained that on 08/23/2011, there were no scales for weighing cars and goods at the in-depth inspection post (pit), they were at work at the specified post from 09 a.m. on 08/23/2011 to 09 a.m. on 08/24/2011, and a car with metal railings did not enter the in-depth inspection post (pit) on 08/23/2011, weighing railings it was not produced. There is also a letter signed by the deputy in the case file.The head of customs "K" reported that there were no scales at the site of the in-depth inspection (pit) on August 22-23, 2011, as they were installed only on September 04, 2011. It follows from the same letter that according to the weighing acts, the presence of a representative of the customs authority and the presence of a resolution on the conduct of inspections, which are not available in this case, is mandatory. Currently, it is not possible to resolve doubts about the weight of the transported handrails due to their absence. After involving S. to administrative responsibility, his applications with a request to take the cargo back to Kyrgyzstan due to the lack of accompanying documents and funds for customs clearance, the said perilla were transferred on September 05, 2011 according to the act of acceptance and transfer of cargo and vehicle to officials of the customs post of the Kyrgyz Republic. Therefore,
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