Bringing obviously innocent people to criminal responsibility, abuse of power and official powers, and coercion to testify

By the verdict of the Almaly District Court of Almaty dated October 29, 2019: R., who had no previous criminal record, was convicted under part 2 of Article 28, Article 415 of the Criminal Code of the Republic of Kazakhstan (hereinafter – to 1 year of restriction of liberty with deprivation of the right to hold positions in public service for a period of 3 years, according to parts 2, 3 of Article 28, part 1 of Article 414 of the Criminal Code to 2 years of restriction of liberty with deprivation of the right to hold positions in public service for a period of 3 years, according to parts 2, 3 of Article 28, parts 2 of Article 412 of the Criminal Code to 5 years of imprisonment with deprivation of the right to hold positions in public service for a period of 5 years, under paragraph 3) of part 2 of Article 146 of the Criminal Code to 3 years of imprisonment with deprivation of the right to hold positions in public service for a period of 3 years, under part 2 of Article 412 of the Criminal Code to 5 years of imprisonment with deprivation of the right to hold positions in public service for a period of 5 years, subitems 1), 2), 3) of part 2 of Article 274 of the Criminal Code to 2 years of imprisonment, under paragraph 3) of part 4 of Article 362 of the Criminal Code to 5 years of imprisonment with life deprivation of the right to hold positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, government organizations and organizations in whose authorized capital the state's share is more than 50%, including national management holdings, national holdings, national companies, national development institutions, of which the state is a shareholder, their subsidiaries, more than 50% of the voting shares (participation interests) of which belong to them, as well as in legal entities, more than 50% of the voting shares (participation interests) of which belong to these subsidiaries. On the basis of part 3 of Article 58 of the Criminal Code, 7 years of imprisonment with life imprisonment were finally imposed by partial addition of penalties for holding positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, state organizations and organizations in whose authorized capital the state's share is more than 50%, including including in national management holdings, national holdings, national companies, national development institutions, of which the state is a shareholder, and their subsidiaries, more than 50% of the voting shares (participation interests) of which belong to them, as well as in legal entities, more than 50% of the voting shares (participation interests) of which belong to these subsidiaries, while serving their sentences in an institution of the medium-security penal system.

Bringing obviously innocent people to criminal responsibility, abuse of power and official powers, and coercion to testify

R. was found innocent of committing a crime under part 2 of Article 412 of the Criminal Code upon bringing the obviously innocent H., R., O., B., I., A., S., K., M. to criminal responsibility and acquitted for lack of corpus delicti. R. was found innocent under paragraph 3) of part 4 of Article 362 of the Criminal Code upon the fact of exceeding authorities and official powers in relation to K., S., P, S., D., Ya., S., R., P., A., S., K., M. and acquitted for lack of a criminal offense. He was also found not guilty of the episode of coercion to testify against F. and he was acquitted for lack of a criminal offense under part 2 of Article 28, Article 415 of the Criminal Code. In accordance with part 1 of Article 49 of the Criminal Code, it was decided to deprive R. of his class rank – senior Adviser of Justice and the rank of police major. According to part 2 of Article 49 of the Criminal Code, it was decided to submit a submission to the President of the Republic of Kazakhstan on the deprivation of R. of the state award – the medal "Zhauyngerlik yerligi ushin". M., who had no previous criminal record, was sentenced under paragraphs 1), 2), 3) of part 2 of Article 274 of the Criminal Code to 1 year 6 months 7 days of imprisonment. M. he was found innocent of committing a crime under paragraph 3) of part 4 of Article 362 of the Criminal Code on the fact of abuse of power and official authority in relation to the victims K., S., A, P., S., D., Ya., S., R., P. and acquitted for the absence of elements of a criminal offense in his actions. R. was found innocent under part 3 Article 412 of the Criminal Code on the fact of illegal criminal prosecution and he was acquitted due to the lack of evidence of his guilt in committing a criminal offense. By the verdict of the court of R. found guilty of: - bringing an obviously innocent person to criminal responsibility, combined with accusing the person of committing a grave and especially grave crime; - in organizing the bringing of an obviously innocent person to criminal responsibility with charges of committing a grave and especially grave crime; - in the commission of torture, that is, the intentional infliction of mental suffering committed by an official in order to obtain from the tortured a confession for the actions that he and another person committed, causing moderate harm to health; – organizing knowingly illegal detention; – forcing a person to testify by using threats from a prosecutor conducting a pre–trial investigation; - spreading knowingly false information that poses a risk of violating public order or causing significant harm to the rights and legitimate interests of citizens or organizations or the legally protected interests of society and the state, committed by a group of persons on the basis of by prior agreement, using his official position, the media and telecommunications networks.

M. was found guilty of spreading deliberately false information that creates a danger of violating public order or causing significant harm to the rights and legitimate interests of citizens or organizations or the legally protected interests of society and the state, committed by a group of persons by prior agreement, using his official position, the media and telecommunications networks. By the decision of the Judicial Board for Criminal Cases of the Almaty City Court dated January 17, 2020, the verdict against R. and M. remained unchanged. In the protest, the Prosecutor General points out that the judicial acts against R. and M. regarding their acquittal under Article 412 of the Criminal Code are illegal and are subject to cancellation due to the incompleteness of the judicial investigation and the inconsistency of the court's conclusions with the factual circumstances of the case. Requests judicial acts regarding the acquittal of R. under part 2 of Article 412 of the Criminal Code upon the involvement of the obviously innocent H., R., O., B., A., S., K., M., as well as M. under part 2 of Article 412 of the Criminal Code upon the unlawful involvement of E. to cancel. The criminal case against R. and M. in this part, send it to the judicial board for criminal cases of the Almaty City Court for a new judicial review in a different composition. Leave the remaining judicial acts unchanged. In their objections to the cassation appeal, convicts R., M., and lawyer T., expressing their position on the arguments of the Prosecutor General, ask the judicial acts to remain unchanged and the protest to be dismissed. After hearing the speeches of Prosecutor N., who supported the protest, the victim H. and his lawyer A., who agreed with the arguments of the prosecutor, convicted M., lawyers T., A. After examining the materials of the criminal case and discussing the content of the protest, the judicial board considers that the judicial acts should be left unchanged on the following grounds. The circumstances of the criminal offenses committed by R. and M., for which they were found guilty, were established by the totality of evidence examined at the court session, which are mutually consistent with each other, and are not disputed by anyone. The court's conclusions on the acquittal of R. on the episodes of crimes against the victims H., R., O., B., A., S., K., M., and M. - the facts of E.'s illegal criminal prosecution are also based on comprehensively, fully and objectively researched evidence analyzed by the court. Thus, the basis for the acquittal of R. under part 2 of Article 412 of the Criminal Code against the employees of the DBEKP in Almaty, H. and R., was the initiation of 4 criminal cases under Article 192 of the Criminal Code (as amended in 1997) against false entrepreneurs, according to which H. I carried out checks.

Despite the termination of X. ADDENDUM No. 280/12c due to the expiration of the six–month period and the failure to identify illegal activities of the LLP, the verdict of the specialized Interdistrict Criminal Court of Almaty (hereinafter referred to as the SMC) dated February 22, 2017, which entered into force, established that the materials of the ADDENDUM contained information about the cashing of funds. It was on the instructions of K. (convicted by the above-mentioned verdict) that his subordinates H. and R. The case of an operational check of ADDENDUM No. 280/12c was terminated, according to which the facts of the constant cashing of money by L., S., F., K., Sh., A. and others, who were subsequently convicted by the same sentence to various terms of punishment, were reliably established. The prosecutor's arguments that this sentence has no prejudicial significance, since K.'s actions have been reclassified from part 3 of Article 262 of the Criminal Code, part 5 of Article 28, Article 215 of the Criminal Code to part 1 of Article 316 of the Criminal Code (as amended in 1997), are untenable, since the involvement of K., H. and R. The unlawful termination of DPP No. 280/12c is established by the factual circumstances of the case. In the presence of such circumstances, R., being the head of the ICOG, could not but give a legal assessment of the actions of the financial police officers H. and R. The arguments given by the prosecutor about the legality of the termination of the DOPING in connection with the expiration of a six-month period in accordance with the requirements of the Law of the Republic of Kazakhstan "On Operational Investigative Activities" (hereinafter referred to as the Law) and departmental instructions are unfounded, since in accordance with the same Law, the DOPING, based on the materials of which signs of a crime are seen, was subject to implementation, since the tasks of the operational investigative Its main activity is the detection, prevention and suppression of crimes.

Thus, the court, having reliably established the factual circumstances of the case, correctly concluded that R. had been acquitted under Part 2 of Article 412 of the Criminal Code for an episode of a crime against the victims H. and R. Regarding the accusation of R. of unlawfully bringing O. and B. to criminal responsibility, the court's conclusions were that R.'s actions lacked the elements of a criminal offense provided for in part 2 articles 412 of the Criminal Code are also correct. The prosecutor's arguments that R. it was reliably known that AIM-12 LLP and the representative office of Africa Resources Business Limited in Almaty did not participate in the scheme of false entrepreneurial activity of the I.-F. criminal group, funds were not transferred to the accounts of false enterprises, refuted by the testimony of the victims themselves, who did not deny that they were familiar with F. and they came to the DBECP together with him, as well as the verdict of the Almaty City Court of Justice dated February 22, 2017, according to which LLP "A", registered in O., was recognized as a false enterprise. Justifying R. In this episode of the criminal offense, the court correctly took into account the decision of Investigator S. dated September 30, 2017, by which the criminal case against O. and B. and other defendants was terminated due to the decriminalization of Article 215 of the Criminal Code (as amended in 2014). At the same time, in the decision to terminate the criminal case, the investigator indicated that at present, in order to continue the criminal investigation against O., B., I. and other persons who participated in an organized group led by I. and Sh. (convicted by the verdict of July 22, 2017) of committing a false enterprise, the grounds disappeared due to the change in the criminal law.

Thus, the criminal case against O. and B. was terminated not because of the lack of corpus delicti in their actions, but due to a change in legislation, that is, on non-rehabilitating grounds. at the time of the investigation of the criminal case in 2016, R. could not have known about the adoption in July 2017 of the Law excluding criminal liability under Article 215 of the Criminal Code For these reasons, he cannot be held responsible for the unlawful criminal prosecution of O. and B. According to the episode of the crime against M., A., S. and K., the court also legally acquitted R. due to the absence of corpus delicti in his actions on the grounds that R. correctly determined the amount of alleged damage on fictitious invoices seized from K., which exceeded 20 MCI. The court's conclusions that the damage incriminated by R. to these persons was reasonably established by the expert opinion of 2012 are correct. The VAT amounts indicated in the expert's conclusions from 2012 in the amount of 17 192 732.13 tenge for LLP "M" and 17 549 967.29 tenge for LLP "R" were the grounds for charging these persons under paragraphs "a, b" of part 2 of Article 192 of the Criminal Code. In addition, according to the results of the court's investigation of the criminal case against K. and others, it was established that she was detained while selling fictitious invoices totaling over 300,000,000 tenge, according to expert K.'s conclusions, the amount of VAT payable amounted to 34.6 million tenge, which in 2012 exceeded 20 MCI and Therefore, it was the basis for bringing her and others to criminal responsibility. In addition, the court took into account the fact that the special prosecutor had opened a criminal case against K., M., A., S. terminated not for lack of evidence of a crime, but in connection with the decriminalization of Article 215 of the Criminal Code (as amended in 2014). Thus, taking into account the totality of all the evidence examined, the court made the correct decision that R.'s actions did not constitute a criminal offense under part 2 of Article 412 of the Criminal Code in this episode. On the fact of illegal criminal prosecution, E. M.'s acquittal by the court was based on his stable testimony, which was not refuted by anything, but, on the contrary, was confirmed by the totality of the examined evidence. Thus, at the court hearing, M. testified that the decision on qualifications in respect of E. he could not stand it because he could not know the circumstances of the case, he had never investigated tax crimes and also did not know about the accounts, the signature in the resolution on changing and clarifying the qualification of E.'s actions did not belong to him.

The signature on his behalf has been circled by someone, so it is not known how the expert gave the conclusion. It follows from R.'s testimony that he personally drafted the decisions on the qualification of the acts of the suspects, neither M. nor anyone else from the ICOG had anything to do with the preparation of procedural documents. By the testimony of witness E. It is established that the resolution on the qualification of the act of E. he personally handed it to her on November 9, 2016, but he does not remember who signed it. The expert K. At the hearing, she explained that only 3 pages of the qualification resolution (42 sheets in total) were submitted for the study. The decision submitted to her by the court for review on the qualification of the act against E. on behalf of M. was not provided to her as an object for research. She could not explain why she did not take a general picture on the document under study and did not seal the document with the seal of the examination. If she had received the circled signature object for examination, she would have given a conclusion that it was impossible to establish the signature's identity.

Witness A. explained to the court that he had issued a decision on the appointment of a forensic handwriting examination, in which he asked the expert who had signed the decision on the qualification of the act against E. M. or another person. At the same time, the original of the resolution under investigation was removed from the materials of criminal case No. 15075001100037. Two or 3 sheets of the resolution were sent for examination, whereas the resolution itself consists of 41 sheets, which E. motivated by the fact that the object of the study was only a signature. Meanwhile, the court requested volume No. 1424 of the criminal case for No. 15075001100037, from which A. the original decision on the qualification of E.'s act was withdrawn, however, only a copy of the decision turned out to be in the specified volume, while the last sheet with the signature of the person who produced it was missing. The testimony of witnesses K. and A. that the signature was defaced by M., that is, circled when he and the defense attorney reviewed the materials of the criminal case, was checked by the court and found no confirmation. If there are reasonable doubts about M.'s guilt. in the unlawful prosecution of E., as well as in the reliability of forensic handwriting examination No. 5385, the court reasonably excluded her from the list of admissible evidence and acquitted him for the lack of corpus delicti in his actions. By virtue of paragraph 8) of Part 3 of Part 77 of the Constitution of the Republic of Kazakhstan and part 3 of Article 19 of the CPC, irremediable doubts about the guilt of the suspect, the accused, the defendant are interpreted in their favor. The Judicial Board for Criminal Cases of the Supreme Court left the judicial acts of the local courts in relation to R. and M. unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan was left without satisfaction. 

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