Assessment of the set of evidence any suspicion in the case must be considered in favor of the accused and the guilty verdict cannot be based on assumptions
By the verdict of the Judicial Board of the Kyzylorda Regional Court on criminal cases dated July 5, 2019: t. not previously convicted, recognized as innocent by Paragraph "B" of the fourth part of Article 177 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) (1997), the fourth part of Article 28, the fifth part of Article 312 (1997) and acquitted due to the absence of a criminal offense. The claim for the recovery of 88,340 US dollars or 27,827,000 tenge at the exchange rate at the same time, 2,540,000 tenge as additional losses as a result of the criminal activity of K. and T. was dismissed. In the case, procedural costs in the amount of 24,823 tenge were taken into account by the state. Although the Prosecutor General indicated in his protest that the Judicial Board of the Supreme Court of the Republic of Kazakhstan on criminal cases in its resolution of April 30, 2019, for the new consideration of the criminal case against T., sending it to the court of Appeal, must conduct a comprehensive, complete and objective study of the circumstances of the case, take all measures provided for by law for the issuance of a legitimate and justified judicial act, the court does not comply with these requirements, does not pay attention to the testimony of the victim, does not ensure the completeness and versatility of the judicial investigation, again, he indicated that he had made an unjustified acquittal against T., and in connection with the illegality of this sentence, he canceled it and asked to send the case to the court of Appeal for a new consideration.
The victim K. indicated that in his objections, which supported the protest, T.'s guilt was proved by the answers of a number of witnesses and the conclusion of a judicial psychological and philological examination, in respect of which he canceled the acquittal and asked to send the criminal case to the court of Appeal for a new consideration. In accordance with the first part of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code), violations committed during the investigation or judicial review of a case, violations of constitutional rights and freedoms of citizens or improper application of criminal and criminal procedure laws are grounds for Cassation review of judicial acts that have entered into legal force. In this case, there were no such violations in relation to T., which served as the basis for reviewing the acquittal of the court of Appeal in Cassation. The body of pre-trial investigation believes that the acquitted T. his future godfather is the former head of the Aksai Police Department of the Kyzylorda City Department of internal affairs – on April 24, 2014, in the course of special events conducted by employees of the Department of economic and anti-corruption in Kyzylorda, the victim was detained as a suspect in bribery, that is, under Paragraph "A" of part four of Article 311 of the Criminal Code (1997), having learned that he was arrested on the same day, he planned to quickly get 100,000 US dollars collected by relatives in order to take him out of custody let's save, because your homes may be searched," he said falsely. On April 28, 2014, the victim took the money from the House of the daughter of K. zh. and the son of the first K. took it to the House of T. and handed it over to the latter in cash. Then, on May 17, 2014, K. borrowed Қ 20,000 in cash from K. B., saying: "I will help your father K. get out of custody, committing a crime." And on October 30, 2014, "I will help get your father out of custody"-he deceived 40,000 US dollars, the victim caused a particularly large damage to K. by fraud in the amount of a total of 142,000 US dollars, or 27,264,000 tenge at that time, and drove him to give a bribe to an official in an especially large amount. In accordance with the requirements of the third part of Article 388 of the CPC and Paragraph 2 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "on the court verdict", a verdict made on the basis of a comprehensive and objective study of the evidence presented to the court at the court session, as well as compliance with the requirements of the law and The acquittal against T. fully complies with these requirements of the law and is based on objectively evaluated convincing evidence that has been thoroughly studied in the main trial, does not raise any doubts in terms of consistency. In accordance with the requirements of part one of Article 113 of the CPC, a criminal event in a criminal case and the signs of the composition of a criminal offense provided for by the Criminal Law (time, place, method and other circumstances of its commission) must be determined without fail.
From this point of view of the law, the conclusion of the court of Appeal on the fact that T., in the circumstances set out in the indictment, did not find its own evidence of the charge of fraudulently inflicting particularly large damage on the victim K. and inciting him to give a bribe to an official in a particularly large amount, is legitimate and justified. In the answers given during the pre-trial investigation, as well as during the main trial, T. he did not fully admit the charges against him, he did not commit the crimes specified in the indictment, the victim did not take any money from K., he slandered him, he asked to justify himself, showing that it was possible to spend these funds by his son S. On the contrary, the pre-trial investigation body justified the charges against him for fraudulent possession of other people's property in an especially large amount and incitement to give a bribe to an official in an especially large amount with the answers of the victim K. and his son S., who were involved as witnesses in the case. At the same time, the prosecution put forward the answers of the wife of the daughter of the victim, J. A., half-brother A., half-sister Z., former colleagues and friends K. and B. as evidence that S. took to the acquitted T. At first 100,000, then 40,000 and 20,000, that is, a total of 160,000 US dollars for safekeeping. However, no other irrefutable evidence has been identified that refutes T.'s arguments, does not raise any doubts in terms of consistency. 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 " due to the presumption of innocence and in accordance with Article 19 of the CPC, the guilty verdict cannot be based on assumptions and must be confirmed by a sufficient set of clear evidence, and all assumptions arising in the case must be investigated. Contradictions between the evidence are subject to identification and evaluation.
Unresolved suspicions of the defendant's guilt, as well as doubts arising in the application of criminal and criminal procedure laws, must be resolved in his favor. It is natural that the court of Appeal, in compliance with the requirements of this law, gives a legally sound assessment of the accumulated evidence in the case, criticizes the answers of the above-mentioned witnesses, and does not take into account the particularly large amount of money of the victim K. as evidence of fraudulent possession by T. Because they, as close relatives and friends of the latter, are interested people in the case, and their answers are not supported by any irrefutable evidence. At the same time, it was clearly established in the case that since K. was in custody, he did not have the opportunity to directly give T. The above money, he heard about this circumstance from his wife A. and son S., and his close relatives and friends knew about this circumstance from the words of the latter, that is, they also did not clearly see that S. gave this money to T. In such a situation, the conclusions of the forensic psychological and philological examination conducted in the case also cannot serve as irrefutable evidence that T. committed this criminal offense. Since the results of this examination dated August 1, 2016 indicate that the text of the messages submitted for research contains semantic components about money, but the words of T. and A. do not contain components that indicate that they actually received any money. In accordance with paragraph 11 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated November 26, 2004 No. 16" on forensic expertise in criminal cases", the expert's opinion is subject to study and evaluation. When studying the expert's opinion, it should be borne in mind that it does not have any advantages over other evidence, does not have a predetermined force and is subject to analysis, comparison and evaluation, including with other evidence in the case. Therefore, the motivation of the protest that the answers and conclusions of the above-mentioned witnesses are irrefutable evidence of the fraudulent possession of the victim K.'s money in a particularly large amount is unfounded. From this point of view, there is no legal reason to believe that T. is guilty of inciting the victim K. to give a bribe to an official in a particularly large amount. After all, the pre-trial investigation body did not give T. concrete evidence of WHO and under what circumstances he was driven to give a bribe, imposing the above charges. In accordance with the requirements of Paragraph 8) of the third part of Article 77 of the Constitution of the Republic of Kazakhstan and part four of Article 19 of the CPC, any suspicion of a person's guilt is considered in favor of the accused and the guilty verdict cannot be based on assumptions.
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