Causing property damage by deception and abuse of trust in the absence of signs of theft      

By the verdict of the Almalinsky District Court of Almaty dated October 5, 2015, B. was sentenced under paragraph "b" of part 2 of Article 182 of the Criminal Code (as amended on July 16, 1997) to 9 months and 11 days of imprisonment to serve her sentence in a penal colony. Taking into account the period of B.'s detention from December 24, 2014 to October 5, 2015, the sentence imposed was decided to be served, B. was released from custody in the courtroom. On charges of committing crimes provided for in paragraph "b" of part 3 of Article 177 of the Criminal Code for episodes in relation to victims O., S., paragraph "b" of part 4 of Article 177 of the Criminal Code for episodes in relation to victims A., Ch., paragraph "b" of part 2 of Article 177 of the Criminal Code for the episode in relation to the victim H., B. She was found innocent and acquitted for lack of evidence of a crime. 3,241,300 tenge were recovered from B. in favor of the victim P. for compensation of material damage, 922,550 tenge for the benefit of the victim F., as well as a state fee in the amount of 41,638 tenge for state revenue. By the verdict of court B. She was found guilty of causing property damage to the victims P. and F. by deception and abuse of trust in the absence of signs of theft, on a large scale, committed repeatedly. By the decision of the Judicial Board for Criminal Cases of the Almaty City Court dated April 1, 2016, the verdict of the court remained unchanged. Having studied the materials of the criminal case, the arguments of the petition, and having heard the prosecutor who supported the arguments of the petition, the judicial board concluded that the judicial acts against B. were subject to cancellation on the following grounds. The court of cassation, in accordance with paragraph 14 of Article 494 of the CPC, verifies the legality, validity and fairness of the court's verdict in full.

The grounds for revoking or changing the sentence in cassation under paragraph 10 of Article 494 of the CPC are the circumstances specified in Article 433 of the CPC. In the present case, there are such grounds for quashing the verdict. The court's conclusions do not correspond to the actual circumstances of the case, in addition, the criminal law was incorrectly applied by the court, and there are no signs of a crime in the actions of convicted B., for which she was found guilty by the court verdict. So, according to the results of the consideration of the criminal case of B. according to the episodes in relation to the victims O., S., A., Ch. and H. found innocent and acquitted for lack of corpus delicti. Based on these episodes, the court of first instance correctly concluded that there were civil relations between B. and the victims O., S., A., Ch., H. related to monetary obligations under which she made payments. At the same time, the court reasoned this conclusion in the verdict by the fact that B.'s actions lacked the intent to seize victims' funds for free immediately before concluding oral loan agreements, as well as the qualifying sign of "deception and abuse of trust." At the same time, the court, in similar episodes with respect to the victims P. and F., found B. guilty of causing property damage by deception and abuse of trust, repeatedly, on a large scale, in the absence of signs of embezzlement. From the materials of the criminal case, it can be seen that between B. and the brothers P. and F., as in the episodes concerning O., S., A., Ch., Kh., oral loan agreements were concluded with the condition of their return with remuneration. So, the convicted B. During the pre-trial investigation and judicial investigation, she gave stable and consistent testimony that due to the difficulties she had in business due to the missing cargo in Turkey, she turned to her friend P. with a request for an interest-bearing loan, who offered to take 3,000,000 tenge from him at 4% remuneration. In May 2012, P., through her common-law spouse, D., transferred the specified amount to her with the condition of a refund on demand with a month's notice. from May 2012 to June 2013, she paid P. remuneration for this debt is 120,000 tenge per month, in total I paid about 1,560,000 tenge.

In June 2013, at the request of P. She returned 2,000,000 tenge to him near the Shvab House restaurant on the corner of Ablaikhan – Kabanbai Batyr streets. In July-August 2013, she again borrowed from P. on the same terms, but at 5% remuneration twice for 5,000 US dollars, for a total of 10,000 US dollars. And from about August 2013 to June-July 2014, she paid compensation (interest) to the victim P. In February 2014, P. said that due to the jump in the dollar exchange rate, she had to pay him interest on 1,000,000 tenge, not 40,000 tenge, but 256 US dollars, and she paid the specified amounts. In total, for the period from May 2012 to June-July 2014, she returned 4,070,000 tenge and 5,000 US dollars. However, after the devaluation, that is, after February 2014, she began to have business problems, in June 2014 she had a nervous breakdown, was depressed, and therefore she was treated in hospital for two weeks with a diagnosis of "depressive syndrome" and was unable to continue paying remuneration. Similarly, in January 2014, she borrowed money for the purchase of goods at interest from P. Between January 2014 and October 2014, she paid him $300 each, for a total of approximately $2,700. She took the specified amounts from the brothers P. and F. I did not promise to borrow an apartment in Thailand. Since January 2011, she has been an equity investor in the construction of an apartment in Pattaya, Thailand. Her common-law husband D. promised the brothers P. and F. to pay the rest of the debt after the completion of the construction of her apartment in Thailand and its sale. P. did not give promises to purchase an apartment to the victims, neither she nor D. showed any websites to the brothers. The website of the Thai developer Amazon existed in Russian and English since 2010 and was publicly available to everyone, so the brothers could, if they wanted, independently arrange equity participation in the construction of apartments without its intermediary services. These statements of the convict are confirmed by D.'s receipt dated November 6, 2014, from which it can be seen that the latter borrowed money from the brothers P. and F. at interest. It follows from the testimony of the convict that D. actually received the money, but he acted on her instructions and transferred the money to her, and she conducted all negotiations with the brothers P. and F. The court found that D. wrote the receipt 2 years after the loan was received by his common-law wife B., the latter did not deny receiving funds from the brothers P. and F. Moreover, during her stay at the mental health center and later in the detention facility, D. was in constant contact with the brothers P. and F. and he did not refuse to pay the principal debt, which is confirmed in his testimony by the victim P. In the case file there is a calculation of B.'s debt to the brothers P. and F., confirming the existence of a loan agreement for B.'s funds with the condition of payment of remuneration. During the main trial, this calculation was presented to the victim P., who confirmed that this calculation was written in his own hand. The fact that B. paid interest in the form of remuneration to the victims of P. is also confirmed by the testimony of witnesses K. and G., given during the main trial. Thus, the testimony of the victims P. and F. about the transfer of funds to B. through her common-law spouse D. in the amount of $ 22,000 and $25,000, respectively, for the purchase of apartments in Thailand was not confirmed in court. During the legal assessment of the testimony of the victims P. and F. and other examined evidence, the court recognized and established in the verdict the facts of B.'s loan of sums of money from the victims P. for the development of his business with the payment of remuneration. Whereas the motives for transferring the money to B. The above-mentioned victims, cited by the latter and which were the basis for charging the convicted person with deceptive acts, were not confirmed, the court should have critically assessed, together with all the circumstances of the case, their testimony regarding B.'s failure to receive remuneration for using the victims' funds.

The testimony of the convicted person and witnesses about the payment of remuneration, the examined written documents (receipt, calculations) are evidence even in the absence of documentary evidence of the specific amounts of money transferred to the victims as interest payments on loans. It has been objectively established, confirmed by the case materials and not disputed by anyone, that B. was indeed engaged in business, had outlets, and purchased goods abroad for subsequent sale. Considering B.'s consistent testimony about the long-term and regular interest payments on the loans of the brothers P. and F. confirmed by the examined evidence, taking into account the objective reasons given by the convicted person for which she was subsequently unable to fulfill her obligations to the victims, the mere fact of their non-fulfillment in full at the request of the victims under the established circumstances cannot be regarded as deceptive infliction of property damage or its infliction as a result of abuse of trust, as about this it is stated in the verdict. In this case, such criminal circumstances were not established by the court. Stating in the verdict that property damage was inflicted on the victims P. and F. by deception and abuse of trust, the court did not establish the content of the deception or specific signs of abuse of trust on the part of the convicted person, thereby not establishing the objective side of the crime. According to the actual circumstances of the case, the subjective side of deceptive infliction of property damage in B.'s actions is also absent; on the contrary, her actions indicate her intention to fulfill her obligations. In particular, their execution was hindered by the fact that B. was detained from December 24, 2014 to October 05, 2015. These facts indicate that the convict has no intention of deceiving and abusing the trust of the victims P. and F. in order to cause them property damage. Thus, the qualification of the actions of convicted B. under Article 182 of the Criminal Code is not based on the law, since, in accordance with the disposition of this article, deception or abuse of the trust of the owner of the property must be present in the actions of the perpetrator.

In addition, liability under Article 182 of the Criminal Code occurs if unlawful enrichment at the expense of someone else's property did not lead to a decrease in his cash funds, and the perpetrator only unlawfully used the property entrusted to him, unlawfully appropriating the income received from this, which is subject to receipt by the owner's funds. The subjective side of the crime provided for in Article 182 of the Criminal Code is characterized by a direct intent to extract material benefits at the expense of others, which should be covered by the consciousness of the perpetrator and determine the nature of his actions. The existence of such intent, as well as the existence of actions indicating the commission of a crime by B. under Article 182 of the Criminal Code, was not established by the court in the verdict and was not confirmed by the case materials. In accordance with paragraph 17 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated August 15, 2002 No. 19 "On judicial verdict", a guilty verdict cannot be based on assumptions and must be supported by a sufficient set of reliable evidence. Any contradictions between the evidence are subject to clarification and evaluation. Irremediable doubts about the defendant's guilt, as well as doubts arising from the application of criminal and criminal procedure laws, are interpreted in his favor. These requirements of the law have not been fulfilled by the court. According to the episodes concerning the victims P. and F. The court unreasonably regarded the civil law relationship between the convicted and the victims as a criminally punishable act in the absence of sufficient and reliable evidence of its commission by B., which violated the principle of presumption of innocence. During the consideration of the case, the court allowed the incorrect application of the criminal law, the conclusions of the court do not correspond to the established factual circumstances of the case, which led to the conviction of an innocent woman.  In such circumstances, the judicial board considered that B.'s actions lacked the elements of a criminal offense provided for in article 182 of the Criminal Code (as amended on July 16, 1997). Judicial acts against her are illegal and unfounded and, in this regard, are subject to cancellation with the termination of the criminal case due to the absence of elements of a criminal offense in her actions. The adoption of such a decision entails, in accordance with Article 39 of the CPC, recognition of the convicted B.'s right to rehabilitation in accordance with Chapter 4 of the CPC. The board found no grounds for issuing a private ruling against the Prosecutor General's Office, as requested by B., since the decisions taken by the courts on the totality of court proceedings, on the basis of which B. was acquitted of all charges, objectively indicate violations by the criminal prosecution authorities both in terms of conducting a preliminary investigation and monitoring by supervisors. the prosecutors. Based on the above, the judicial board of the Supreme Court for Criminal Cases annulled the judicial acts of the local courts against B. and terminated the proceedings on the basis of paragraph 2 of part 1 of Article 35 of the CPC for the absence of elements of a criminal offense in her actions. In accordance with articles 37-42 of the CPC, B. was recognized as having the right to rehabilitation and compensation for damage caused by illegal actions of bodies conducting criminal proceedings. The petition of the convicted B. is satisfied.

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