Assessment of the evidence due to the error of the conclusion on the innocence of the convicted persons, the acquittal of the court of Appeal was canceled

By the verdict of the Aktau City Court of Mangistau region dated May 25, 2018: S. previously convicted, found guilty by Part 2 of Article 362 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), he was sentenced to 2 years of imprisonment.  According to Article 44 of the Criminal Code, probation control is established, and every year one hundred hours of forced labor is involved. In accordance with Part 1 of Article 49 of the criminal code, he is deprived of the special rank of "senior police lieutenant". U. previously convicted, found guilty of Part 2 of Article 362, Part 2 of Article 416, Part 1 of Article 419 and Part 1 of Article 420 of the Criminal Code, including restriction of freedom by Part 2 of Article 362 for 2 years, restriction of freedom by Part 2 of Article 416 for 1 year with deprivation of the right to hold certain positions in the civil service for 1 year, Part 1 of Article 419 for 50 monthly calculation indices (hereinafter referred to as MCI)-fines in the amount of 120,250 tenge and restriction of freedom for 2 years under Part 1 of Article 420 are imposed. On the basis of Parts 1), 3) of Article 58 of the Criminal Code, a sentence of restriction of liberty for 2 years with deprivation of the right to hold certain positions in the civil service for 1 year is established by the imposition of a less severe punishment on the totality of criminal offenses to a more severe punishment. According to Article 44 of the Criminal Code, probation control is established, and every year one hundred hours of forced labor is involved. In accordance with Part 1 of Article 49 of the criminal code, he is deprived of the special rank of "senior police lieutenant". A. previously convicted, found guilty of Part 2 of Article 362, part 2 of Article 416 and Part 1 of Article 420 of the criminal code, sentenced to Part 2 of Article 362 with restriction of freedom for 2 years, Part 2 of Article 416 with deprivation of the right to hold certain positions in the civil service for 1 year, restriction of freedom for 1 year and restriction of freedom for 2 years with deprivation of the right to hold certain positions in the civil service for 1 year and Part 1 of Article 420 with restriction of freedom for 2 years. On the basis of Parts 1), 3) of Article 58 of the Criminal Code, a sentence of restriction of liberty for a final 2 years with deprivation of the right to hold certain positions in the civil service for one year is established by the imposition of a less severe punishment on the totality of criminal offenses to a more severe punishment.

According to Article 44 of the Criminal Code, probation control is established, and every year one hundred hours of forced labor is involved. In accordance with Part 1 of Article 49 of the Criminal Code, he is deprived of the special rank of "senior police sergeant". By a court verdict S., U. and A. for committing acts that, as officials, caused serious harm to the rights and legitimate interests of the Victim B., who clearly went beyond the limits of their rights and powers, as well as to the legally protected interests of society and the state, in the abuse of their powers and official powers, U. and A. officials authorized to draw up a protocol on administrative offenses are found guilty of falsifying evidence in the case of an administrative offense, as well as giving knowingly false testimony as witnesses during a pre-trial investigation, and U. guilty of deliberately false statements about committing a criminal offense.  Together with this verdict, private resolutions were adopted to attract the attention of the prosecutor of Mangystau region and take appropriate measures. By the resolution of the judicial board on criminal cases of the Mangistau Regional Court of August 20, 2018, the powers of the guilty verdict and individual resolution against S., U. and A. were canceled, which were acquitted by the new verdict of this judicial instance due to the absence of a criminal offense in their actions. The factual and full circumstances of the case specified in the protest of the prosecutor general, the indictment and the verdict of the court of First Instance on the basis of the full recognition of the guilt of U. and A. in the case and other irrefutable evidence accumulated in the case, U., A. and it is clear that S. committed a violation of the constitutional rights of the Victim B. by abusing their official powers, falsifying evidence in cases of administrative offenses, knowingly delivering false statements and giving false testimony in a criminal case, the board of the appeal court did not obey the legal requirements of the police officers of the latter, did not provide documents, he made an unreasonable conclusion that he was actively resisting, falsified the evidence, which is beyond doubt, that there were no actions against B. on the part of police officers, but on the contrary, in the latter's actions, disobedience to the legal requirements of police officers, the use of a mobile phone while driving a vehicle, after the ban on driving, in addition, during the incident, the traffic police officers showed the dominance of power and ethically rude behavior against B., As a result of which they went beyond the competence of official authorities, showed the illegality of such actions, asked to cancel the decision of the Appellate Judicial Board and acquittal, as well as private decisions against U., A. and S. and leave the verdict of the court of first instance unchanged. In accordance with paragraph 2) of Part 1 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code), the basis for the Cassation review of judicial acts that have entered into legal force are violations of the law committed during the investigation or judicial review of the case, violations of the constitutional rights and freedoms of citizens that have led to improper imposition of punishment, or improper application of criminal and criminal procedure laws, including the issuance of an unjustified acquittal. U of the court of First Instance. there are such grounds for canceling the decision of the court of Appeal and the acquittal to overturn the guilty verdict in respect of A.

As it was clearly established in the case, the road patrol police officers of the Aktau City Department of internal affairs U. and A. On April 23, 2017, at 14:50, in front of the fence of the Mangistau Regional Department of the National Security Committee, while performing their official duties, driving a car of the state registration mark (hereinafter referred to as the registration mark) 268CVA/12 "KIA Sportage" (hereinafter referred to as the vehicle) from the operational control center in the 23rd microdistrict of Aktau, on the basis of a notification of the use of a mobile phone, B. was issued by the Code of administrative offenses of the Republic of Kazakhstan (hereinafter referred to as the code of administrative offenses of the Republic of Kazakhstan (hereinafter referred to as the code of administrative offenses of the Republic of Kazakhstan (hereinafter referred to as the code of administrative offenses of the Republic of Kazakhstan (hereinafter referred to as the code of administrative offenses of the Republic of Kazakhstan (hereinafter referred to as the code of administrative offenses of the Republic of Kazakhstan (hereinafter referred to as the code of administrative offenses of the Republic of Kazakhstan). – "I don't know," he said. B. said that he did not agree with their arguments that he had committed an offense, that he would record his actions on his mobile phone, explain to them the reason that gave rise to his arrest, and if he presented the appropriate evidence, he would not refuse to provide documents, and asked permission to park his car in another place, as he stopped himself at a road sign prohibiting parking.  However, U. and A. in accordance with the requirements of Article 802 Part 2 of the Administrative Code, it is impossible to initiate proceedings in connection with the incident of an administrative offense or the absence of its composition, provided for in paragraphs 2), 3) of Part 1 of Article 741 of this code, despite the fact that they are obliged to establish whether he committed an offense or not in accordance with the requirements of the law, he recognized these actions as disobedience to their legal requirements, showed their dominance of power against him, and decided not to send him unpunished according to the Received message, and not for the purpose of checking documents. After that, U. and A. abused their power and official powers, clearly exceeding the limits of their rights and powers, causing serious damage to the rights and legitimate interests of B., grossly violating the requirements of Paragraph 1) of Part 1 of Article 797 of the Administrative Code, U. I took off the rear registration mark of the latter's car in front of A. without showing it in an illegal way, and hid it in a service car "UAZ" under the control of J. by his colleagues standing there. A., in turn, pretended not to remove the registration mark of B.'s car, but felt that he had noticed these illegal actions, and in order to eliminate his tracks, he came to zh., instructed him to turn off the port camera and hide it further without showing the registration mark inside the car.

U. and A. Then, in an attempt to bring their illegal activities to an end, B.'s act of driving the vehicle out of the parking area without listening to them, continued to use it against him, likening it to an infraction act in which he drove the vehicle without registration and did not comply with their stop requirement. When B. began to move his car, warning that they would go to the prosecutor's office to report these illegal actions, they interfered, stopped and demanded that he get out of the car. B. in turn, forced to comply with their demand, he voluntarily left his car without resistance. At this moment, U. and A., at the invitation of the latter, gave false information that the deputy platoon commander Z. B., who arrived at the scene, used a mobile phone while driving, drove his car without a registration mark, resisted themselves and did not provide documents.  Well, Z. in turn, seeing that U.'s finger was exploited, he took their information honestly and instructed them to conduct a medical examination to resolve B.'s legal liability for disobedience, lock his car in a parking lot and take appropriate measures. Then, although B. did not show them any resistance action, U. and A. pushed him forcibly, and at this moment U. snatched his cell phone from his hands and forcibly planted it on the passenger side of his car.  Only if there are sufficient grounds to believe that the driver driving the vehicle is in a state of intoxication, in accordance with Part 1 of Article 796 of the Administrative Code, he is subject to suspension from driving the vehicle and examination of the state of intoxication, and there is no legal basis for taking such measures, as well as there is no restriction on the movement of his car in such a context, B. forcibly conducted a medical examination and parked his car in the parking lot. After that, U. and A. they continued their illegal activities and filled out protocols on illegal administrative offenses with Parts 1 of articles 613, 591 of the Administrative Code in relation to B. According to these articles of the administrative code, despite the absence of grounds for holding a vehicle in the parking lot provided for in Part 1 of Article 797 of this code and the absence of grounds for arrest of B.'s vehicle in Part 2 of Article 590 of the Administrative Code, four hours after the incident, the registration of the vehicle is unknown, the management has not committed an administrative offense, As a result, U. and A. on the day of the incident, B. was taken with him from 14:50 to about 20:00 in the evening, that is, for five hours without sending. In addition, due to their illegal actions, he could not withdraw his car from the parking lot for 44 days. This situation, on the basis of a contract with B. "C" LLP dated February 02, 2017 No. 8021, using transport as a source of income, engaged in daily transportation of a person, earning a net profit of 15,000 tenge, supporting a family, had a tangible negative impact on the daily livelihood, material damage to his family, without bringing a material benefit in the amount of 660,000 tenge.

In addition, B. was brought to the Aktau City Department of internal affairs without prosecution, U. did not provide the documents required during the incident, showed disobedience to them, removed the rear registration mark of his car, deliberately made a movement, injured his arm and drove the vehicle without a registration mark, registered in the Unified Register of pre-trial investigations of the Aktau City Department of internal affairs (hereinafter referred to as SDTB) No. 174710031001491, in respect of which the Criminal Code of the City Department of internal affairs of Aktau No. 174710031001491 a criminal case was initiated under Article 379 of the Civil Code of the Republic of Kazakhstan. U. and A., who were involved as witnesses in this criminal case during the pre-trial investigation and the incident, B. did not hand over the documents required, showed disobedience against them, removed the rear registration mark of his car, deliberately made a movement, injured U.'s arm and gave false answers about driving a vehicle without a registration Mark, B. in gross violation of Paragraph 3) of Part 1 of Article 797 of the Administrative Code of the Republic of Kazakhstan, he did not actually drive a vehicle without a registration sign, only removed it from the territory of the sign prohibited for parking, encroached on his personal property, snatched his mobile phone from his hands, unreasonably forced medical examination, locked his car in a parking lot, and hid important circumstances in another case. B. as a victim, from the first days of his pre-trial investigation, then at the main trial, as well as at the stage of the court of Appeal, he gave unambiguous answers to the above-mentioned circumstances, both in content and in the sequence corresponding to the incident. These answers are obtained in compliance with the procedure established by the Criminal Procedure Law and do not cause any doubts in their authenticity, but rather correspond to the real circumstances of the case and are fully consistent with the objective evidence below. In particular, the irrefutable evidence attached to the case - the development of the incident in the video recordings of the operational control center and a portable video camera handed over to A. for official use, which fully corresponds in content to the circumstances of the case, as well as to the answers of B.

Among them, it is clearly depicted that B.'s car was in place of the rear registration sign before being stopped by traffic police officers, then they took it off secretly, without warning, and then A. went to his colleague J. and said: "Mura come here, turn off the camera, there is a number on board, take it slowly and hide it somewhere in the cabin", U. jerked B, took him to the passenger side of the car, snatched his mobile phone from his hands and forcibly put him in the car.  U. and A. during the pre-trial investigation, as well as during the main trial, they fully admitted the charges, expressed their sincere regret for their actions, without denying the circumstances of the incident recorded in these videos, and responded with the answers of B. They confirmed this answer in their confrontation with B. Asked as a witness, J. indicated in his answers that A. had instructed him to turn off his camera and hide the registration sign lying on board further.  At the same time, the production of a registered criminal case against B. under Article 379 of the criminal code on the basis of a false report of U. on disobedience to a representative of the authorities was reduced by the resolution of the Inquirer of the Aktau City Department of internal affairs of April 26, 2017, due to the absence of corpus delicti in his actions. Proceedings of administrative offenses initiated on the basis of protocols of administrative offenses with respect to B. with Part 1 of Article 613 of the Administrative Code, Part 2 of Article 590 and Part 1 of Article 591 of the Administrative Code, respectively, were terminated by resolutions of the Munaili District Court of Mangistau region dated May 30, 2017 and the specialized administrative court of Aktau dated June 8, 2017 on the basis of the absence of the composition of administrative offenses in its actions. In such a context of the case, the court of first instance, in compliance with the requirements of the law on the case, conducts a comprehensive judicial investigation, taking as a basis a set of convincing evidence collected by the pre-trial investigation body and directly examined and objectively evaluated at the court session, which does not raise any doubts in terms of consistency. I correctly assessed the actions of A. from a legal point of view, correctly differentiated the actions of A. by Part 2 of Article 362, Part 2 of Article 416 and Part 1 of Article 420 of the criminal code, and U. by Part 2 of Article 362, Part 2 of Article 416 and Part 1 of Article 419 of the criminal code.

These conclusions of the court of first instance are fully agreed by the Judicial Board of the Supreme Court for criminal cases. In accordance with the requirements of Paragraph 8 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 4" on some issues of evaluating evidence in criminal cases", the court is obliged to conduct a comprehensive, complete and objective study of evidence submitted by the parties and evaluate them in accordance with the law. The court of Appeal, not complying with these requirements of the law, not giving a correct legal assessment in accordance with Article 125 of the CPC in terms of the relevance, admissibility, certainty of the above-mentioned evidence, and all of them in terms of sufficiency to resolve this case, annulled the legal verdict of the court of First Instance on the guilt of U. and A. for committing the above-described criminal acts, and issued an unjustified acquittal against them.  Therefore, the Court of appellate instance has a U. the arguments of the protest against the decision of the court of First Instance to overturn the guilty verdict and their acquittal are subject to cancellation. However, under Part 2 of Article 362 of the criminal code, the criminal acts of U. and A. are subject to re-qualification, since in accordance with the additions and amendments to the criminal law after the conviction of the court of first instance, the law of the Republic of Kazakhstan dated July 12, 2018 No. 180-VI of the criminal code, in which they were found guilty, Part 2 of Article 362 of the criminal code is excluded.  Considering that in accordance with Paragraph 22 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2017 No. 5" on the procedure for proceedings in criminal cases at the Cassation stage", the case was considered on the grounds provided for in Article 485 of the criminal code and circumstances allowing the application of the provisions of Article 6 of the criminal law, the act on the retroactive this part of the sentence in respect of I. A. should be brought into line with the law on the basis of Article 6 of the Criminal Code, and their criminal acts should be re-classified into Part 1 of Article 362 of the criminal code. In addition, as it is clearly established in the case, due to the fact that a criminal case against B. for disobedience to a representative of the authorities is registered on the basis of a false report of U. by a court verdict, he is found guilty by Part 1 of Article 419 of the Criminal Code, and his knowingly false testimony as a witness is fully covered by the composition of the criminal offense provided for in this article, a criminal case against him under Part 420 of Article 1 of this code, on the basis of Paragraph 2) of Part 1 of Article 35 of the Criminal Code, subject to termination due to the lack of composition of the criminal offense. The court is obliged to take all measures provided for by law in accordance with Article 24 of the CPC for a comprehensive, complete and objective study of the circumstances necessary and sufficient for the correct resolution of the case. In the case, the circumstances that both expose and justify the defendant, as well as mitigate and aggravate his responsibility and punishment, are subject to determination. At the same time, All statements about the innocence or low degree of guilt of the defendant, as well as about the presence of evidence that justifies him or facilitates his liability, should be checked. And in accordance with the requirements of Article 388 of this code, the court's verdict must be legal and justified. If the verdict is made in compliance with all the requirements of the law and on the basis of the law, it is recognized as legal, and if it is made in the course of a comprehensive and objective study of the evidence presented to the court at the hearing, it is recognized as justified.

During the pre-trial investigation, as well as at the first and appellate court instances, S. did not fully admit the charges against him under Part 2 of Article 362 of the criminal code, but arrived at the scene after A.'s actions on the part of the driver B. reported on the walkie-talkie and called for help, where U. and A. he received a message from the operational control center that B. was driving and using a mobile phone, the latter disagreed with him, asked for evidence, did not comply with their legal requirements and did not provide documents, because of which they said that he did not have documents and took off the registration mark of his car, moreover, seeing U.'s hands were exploited, in fact, he thought that he was disobeying him, , and the evidence was urgently taken from the operational control center and explained that it was not yet possible to show him, but he also stated that he would not give documents if he did not show evidence without listening to him, U. and A. locked his car in the parking lot, ordered him to undergo a medical examination, then they had to register with the SDTBT for disobedience, received a certificate and registered it in the specified register, B. did not see who received his mobile phone, how and the latter was seen only during the investigation he asked the court to justify himself.  U. I did not deny this answer given by S. in A. However, the truthfulness of S.'s answers is not in doubt, but rather fully coincides with the true circumstances of the event, and most importantly with the content of the video recording of this event recorded on A.'s portable video camera. Moreover, in the criminal case against B., U. and A. were brought to criminal responsibility for writing a false report and giving knowingly false testimony, and were found guilty by a court verdict. In this case, poison. in order to find out the circumstances of the incident and to resolve the legal liability of the victim, it is appropriate for S. to register this fact in the SDTBT in order to find out the legal responsibility of the victim, and also comply with the law. Therefore, the conclusion of the court of Appeal that these actions committed by S. Do not go beyond the limits of his official authority is correct. In accordance with Paragraph 8) of Article 77 of the Constitution of the Republic of Kazakhstan and Part 3 of Article 19 of the CPC, any unresolved doubts about the guilt of the defendant, as well as doubts arising in the application of criminal and criminal procedure laws, must be resolved in favor of the defendant.

On the part of the pre-trial investigation bodies, other irrefutable evidence proving that S. committed the criminal offense described in the sentence has not been provided and there is no possibility to accumulate such evidence in the future. In addition, the right of S. to defend himself as a suspect during a pre-trial investigation was violated. In accordance with the requirements of paragraph 7) of Part 1 of Article 67 of the CPC, if there are conflicts between the interests of suspects, accused and one of them has a defender, the participation of the defender in the proceedings on a criminal case is mandatory, and in accordance with the second part of this article, the participation of the defender in such cases must be ensured from the moment of establishing a conflict between their interests. In accordance with the requirements of Paragraph 14 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 6, 2002 No. 26" on the practice of applying the Criminal Procedure legislation regulating the right to defense", " the bodies conducting criminal proceedings must explain to the suspect, accused, defendant that they have the opportunity to receive a defender and this does not depend on whether there is a fee for him. Refusal of a defense attorney can occur at any stage of legal proceedings only at the initiative of the suspect, accused, defendant and in the presence of the defense attorney, and this should not be due to the lack of funds to be paid for legal assistance. If there are no real funds to pay a lawyer, the court must recognize the refusal of the lawyer as forced and reject it. Acceptance of the refusal of the defense attorney falls within the competence of the body conducting the criminal process. In accordance with Part 6 of Article 99 of the CPC, an application for refusal from the defender is drawn up by a reasoned resolution, with which the defender, suspect, accused, defendant immediately familiarize themselves and certify with their signatures. In this case, the presence of a defense lawyer is proved by attaching a lawyer's warrant or a copy of the relevant document of another person sent as a defense lawyer to the materials of the criminal case. As it turned out in the case, in the pre-trial investigation, and later in the main trial, S. did not admit the charges against him, and U. I am A., who, on the contrary, fully admitted the charges, that is, there was a confrontation between their interests.

Despite this, the pre-trial investigation body, without fulfilling the requirements of the above-mentioned law, does not explicitly involve the defender in the case to protect the interests of S., but is limited only to recording in the case materials his request to refuse the help of the defender. In this case, in accordance with paragraph 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 4" on some issues of evaluation of evidence in criminal cases", on the basis of Article 112 of the CPC, the evidence against him must be declared invalid due to violation of the right of S. to protection guaranteed by the Constitution of the Republic of Kazakhstan. In such a context of the case, the acquittal issued by the Appellate Judicial Board against him due to the absence of any criminal offense in the actions of S. is legitimate and justified, therefore it is subject to suspension. U. when imposing a sentence on A., The Court of first instance was guided by the requirements of Article 52 of the Criminal Code, stating that they had not previously been criminally prosecuted, confessed to crimes committed and sincerely repented, were married, had teenage children, positive characteristics as circumstances mitigating their criminal liability and punishment, and that they committed criminal offenses in violation of their professional vows-aggravating criminal liability and punishment, as well as correctly taking into account the opinion of the Victim B.

In this regard, the criminal offenses of U. and A. under Part 2 of Article 362 of the criminal code are subject to a reduction in the size of the punishment imposed on them by Part 1 of Article 362 of the criminal code, as they are again differentiated into part one of this article and the scale of their charges is reduced.  The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan in respect of the convicted S. revoked the decision of the court of Appeal and the parts of the appeal sentence for acquittal. Assessment of evidence due to the error of the conclusion on the innocence of the convicted, the acquittal of the court of Appeal was annulledthe powers of the acquittal parts of the decision and the appeal verdict of the court of Appeal in relation to the convicted U and A. were canceled.  In relation to U. and A., the verdict of the court of first instance was changed, and the criminal case was terminated on the basis of Paragraph 2) of Part 1 of Article 35 of the Criminal Code due to the absence in the actions of U. of the composition of the criminal offense provided for in Part 1 of Article 420 of the criminal code.  Under Part 2 of Article 362 of the criminal code, the criminal offense of U. was again differentiated into Part 1 of Article 362 of the criminal code, under this article he was sentenced to 1 year and 6 months of restriction of freedom. Parts of the sentence for recognizing U. guilty by Part 2 of Article 416, Part 1 of Article 419 and imposing penalties on them are left in force. On the basis of Parts 1, 3 of Article 58 of the criminal code, by introducing a less severe punishment into a more severe one, a sentence of restriction of freedom of 1 year and 6 months was finally imposed with deprivation of the right to hold certain positions in the civil service for one year. Under Part 2 of Article 362 of the criminal code, the criminal offense act of A. was again differentiated into Part 1 of Article 362 of the code, and under this article he was sentenced to imprisonment for 1 year and 6 months.

Parts of the sentence A. guilty of Part 2 of Article 416, part 1 of Article 420 of the criminal code and the imposition of punishment on them are left in force. On the basis of Parts 1, 3 of Article 58 of the criminal code, by introducing a less severe punishment into a more severe one, a sentence of restriction of freedom for 2 years was finally imposed with deprivation of the right to hold certain positions in the civil service for 1 year. The part of the sentence to U. and A. establishing probation control on the basis of Article 44 of the criminal code and imposing appropriate duties on them in this regard was left unchanged.  The powers of the resolution and the private resolution of the judicial board for criminal cases of the Mangistau Regional Court of August 20, 2018 for violation of private resolutions were canceled, and the part of the private resolution of the Aktau City Court of May 25, 2018 in relation to U. and A. was left unchanged. The remaining parts of the judicial acts were left unchanged, and the protest of the prosecutor general of the Republic of Kazakhstan was partially satisfied.

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases