Causing property damage, through abuse of trust, in the commission of fraud

Judicial acts against the convicts were canceled and the proceedings were terminated due to the absence of corpus delicti in their actions and lack of evidence of guilt. According to the verdict of the court No. 2 of Taraz, Zhambyl region, dated April 30, 2014. She was sentenced under part 1 of Article 177 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 1 year in prison. Based on the Law of the Republic of Kazakhstan "On Amnesty in connection with the twentieth anniversary of the State Independence of the Republic of Kazakhstan" dated December 28, 2011 (hereinafter – the Law) She is relieved of her punishment. By the same verdict, K. She was sentenced under paragraph "b" of part 2 of Article 182 of the Criminal Code to 2 years in prison, with the application of Article 63 of the Criminal Code, the punishment was considered conditional, with a probation period of 1 year. G. was also sentenced under paragraph "b" of part 2 of Article 182 of the Criminal Code to 2 years and 6 months in prison, with the application of Article 63 of the Criminal Code, the punishment was considered conditional with a probation period of 1 year. The Court of Appeal of June 26, 2014 upheld the verdict. The operative part of the verdict against H. after the words "Recognize H. guilty under the first part of Article 177 of the Criminal Code and impose a sentence of 1 year in prison" was supplemented with the words "In accordance with paragraph 4 of the first part of Article 2 of the Law, release X. from serving his sentence."

The Cassation Judicial Board upheld the verdict and the appeal decision. By the verdict of the court, K. and G. were found guilty of causing property damage to the owners by abuse of trust in the absence of signs of theft, by a group of persons by prior agreement, repeatedly, on a large scale, Kh. – of committing fraud against M. The Supervisory Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan overturned the verdict and subsequent judicial acts and discontinued the proceedings in the case of K. and G. for the lack of corpus delicti in their actions, and for the lack of proof of guilt in relation to H. In accordance with article 42 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), convicts have the right to compensation for harm due to full rehabilitation on the following grounds.  In accordance with the provisions of paragraph 17 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated August 15, 2002 No. 19 (with name changes and additions), due to the presumption of innocence and in accordance with Article 19 of the CPC, the conviction Bulletin of the Supreme Court of the Republic of Kazakhstan No. 3/201535 cannot be based on assumptions and must be confirmed by a sufficient set of reliable evidence. All possible versions of the case should be investigated. 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. In the verdict, the court stated that the victims had taken part in LBM's projects as a result of the campaigning activities of K. and G., who promised them good earnings as part of the company's activities. They were given funds to participate in LBM projects. As a result of their campaigning work, the victims perceived K. and G. as representatives of the LBM company. K. and G. They suppressed some of the victims' doubts about stable earnings, claiming that they guaranteed the reputation of LBM, and that was why, trusting K. and G., they invested their money in LBM's projects. As a result, they suffered property damage. To blame K. and G. They were charged with carrying out explanatory work with new partners (victims), who perceived them as representatives of the LBM company, but they did not adequately explain that their earnings directly depend on the number of newly attracted partners, they did not explain the new procedure for cashing out electronic payment funds by withdrawing them to the company.

Meanwhile, during the preliminary investigation, it was established that the LBM company was officially registered in the Russian Federation and carried out its activities legally. Thus, LBM, its program and projects were created and developed not by K. and G., but by other persons against whom, as follows from the information of the law enforcement agencies of the Russian Federation, a criminal case has been initiated on the facts of fraudulent actions against a large number of citizens. Having assessed these circumstances, the court came to an erroneous conclusion about the evidence of K. and G.'s guilt. in causing property damage by abuse of trust in the absence of signs of embezzlement committed by a group of persons by prior agreement, repeatedly, causing large-scale damage. According to the meaning of the law, the absence of signs of theft means that there is no seizure of property from the owner's possession, on the contrary, property should be received in favor of the owner, but it does not arrive. The subjective side of this crime is expressed in the form of direct intent, that is, a person realizes that as a result of misleading the victim or as a result of established trusting relationships, he will not allow the transfer of property to the owner and desires it. However, the case did not establish the existence of direct intent in the actions of K. and G. to cause damage to the victims, moreover, they themselves also sent Bulletin of the Supreme Court of the Republic of Kazakhstan No. 3/2015 36 their money to the company, received accrued virtual payment funds. K. and G. They did not deny that they provided assistance to newcomers in registering and purchasing tokens, showed information on the company's website, but did not persuade or convince anyone to become partners, the victims made their own decision. They themselves received information from Ts., decided to become partners, deposited money, bought markers, filled them out, that is, they actually had the same status as the victims, and were not employees or representatives of the company. The arguments of K. and G. by the criminal prosecution authorities and the court have not been refuted by a sufficient body of evidence.

Witness Ts. confirmed that she had been to the LBM company, received information from the Internet, from the company's website, but then realized that this was a hoax and stopped inviting people. The money that was given to her by K. and G., she passed on to E., who sent them to Russia. Witness E. did not deny that she had received funds from M. and transferred them to Novosibirsk F., who introduced himself as the company's challenger and mentioned the names of the executives. She provided assistance free of charge, and did not receive any payment for it. Investigator Ya. He showed that more than 2,000 citizens participated in the project of the LBM company in the city of Taraz. During the investigation, it was established that about 54 million tenge had been received on E.'s card, that is, K. and G.'s arguments about the transfer of funds by them were confirmed. Thus, it was reliably established that the victims' funds were transferred to Russia, as a result of which the company opened flash offices for all victims, and electronic payment funds were credited to electronic wallets. The materials of the case and the testimony of the victims established that they voluntarily became partners of the company, contributed money, invited their friends and relatives, for which, as promised, they received wages. They learned about the company from their friends and relatives. In September 2012, the company unilaterally changed the terms of payments, which it posted on its website, and all payment funds were allegedly transferred to shares. Thus, the victims independently decided to work for the company, created their own network, and received funds as a result of their participation.

For example, victim U. had 34 people in her structure, witnesses Sh. and Ch. – 38 and 60 people, respectively. These facts confirm K.'s arguments that she and G. had no intention of causing property damage to the victims, and the court's conclusion that K. and G. were proven guilty contradicts the circumstances established by the court and is based on assumptions. The court's conclusion on the proof of X's guilt also does not correspond to the case materials. in committing fraud against M., the latter explained that in 2009 she transferred to H. 150,000 tenge for issuing an insurance policy Bulletin of the Supreme Court of the Republic of Kazakhstan No. 3/2015 37 to company "B" in the name of her spouse, but upon receipt of the policy, she learned that its value was 63,000 tenge, that is. Kh. she appropriated the difference in the amount of 87,000 tenge. Kh. both during the preliminary investigation and in At the hearing, she denied this accusation, insisting that she had not received money from M., who had independently made an advance payment in the bank for the insurance policy. As proof of X's guilt. The court assessed M.'s testimony, the existence of an insurance policy in the amount of 63,000 tenge. However, there is no reliable evidence in the case of the transfer of M. 150,000 tenge to X. Moreover, the defense provided an application dated June 6, 2009 for deferred annuity insurance, signed by M., indicating the amount of 63,000 tenge, receipts for the deposit of M. 53,000 and 10,000 tenge, which refutes the victim's arguments about ignorance of the cost. the policy. These facts were not properly assessed by the court. 

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