Confiscation of property property rights are guaranteed by law. Only if the criminal nature of the property is proven, it can be confiscated to the state revenue as an instrument of a criminal offense
By the verdict of the Aiteke bi district court of Aktobe region dated March 28, 2019: previously convicted, found guilty by paragraph 3) of part four of Article 188 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) and released from criminal liability in connection with his death. The part of the claims of civil plaintiffs A., K. in relation to Zh. is left unattended. A car with state registration number 321 MOA 04 "Toyota Land Cruiser 200" (hereinafter referred to as the car) was confiscated to the state revenue. By the court verdict zh. by conspiracy of a group of people, he was repeatedly found guilty of the secret theft of other people's property on an especially large scale. By the decision of the Judicial Board of the Aktobe Regional Court for criminal cases dated May 24, 2019, the court verdict against zh. was left unchanged. Lawyer T. in his petition did not dispute the differentiation and proof of the criminal activity of the convicted zh., but stated that the car confiscated by the court's verdict at the state's revenue by K. it is indicated that the convict bought from J. Dan on August 24, 2018 through a contract, and this car was recognized as a weapon of committing a criminal offense later, by the resolution of the investigator of September 18, 2018. On the day of the verdict, the car was in K.'s name, as evidenced by certificates that the car was not stolen, did not stand on The Wanted list and in custody. He indicated that he did not know about the criminal activities of K. zh., did not intentionally buy a car, is a bona fide buyer.
Confiscation of property property rights are guaranteed by law. Only if the criminal nature of the property is proven, it can be confiscated to the state revenue as an instrument of a criminal offense
In this regard, he asked for the cancellation of judicial acts in terms of confiscation of this car. The above-mentioned sentence also convicts U., G., U., zh., in respect of which a petition for the revision of judicial acts in Cassation is not provided. The court conducted a comprehensive judicial investigation in compliance with the requirements of the law on the case, based on a set of convincing evidence collected by the pre-trial investigation body and studied and objectively evaluated at the court session, which does not raise any doubts in terms of consistency, G. it was correctly concluded that the criminal offense described in the sentence committed the act. The evidence collected in the case was given a legal assessment by the court in accordance with the requirements of the law and the actions of the convicted zh. were correctly differentiated by paragraph 3) of part four of Article 188 of the criminal code.
However, the arguments of lawyer T. on the revision of judicial acts in the petition in terms of confiscation of the car for state income as material evidence are subject to satisfaction. In accordance with paragraph 6) of the first part of Article 485 of the CPC, incorrect resolution of the issue of confiscation of property is the basis for reviewing judicial acts that have entered into legal force in a cassation manner. According to the materials of the criminal case, by the resolution of the investigator of the Investigative Department of the Department of internal affairs of Aktobe region dated September 18, 2018, the car was recognized as a weapon of committing a criminal offense. The specified car was returned to K. By receipt until the final decision on the criminal case was made. During the pre-trial investigation, K., who answered as a witness, indicated that on August 24, 2018, he bought a car from the convicted zh. for 13,000,000 tenge, concluded a written agreement, transferred the car in his name and heard from a police officer that its former owner, that is, zh., used the car as a means of crime. During the pre-trial investigation, when additional interrogation of the convicted zh. was received, he said that the car was sold to K. two months ago. The purchase of this car by K. and the pledge in his name is confirmed by the official documents attached to the case, that is, the written transaction Form dated August 24, 2018, registration information, the bank's Pledge Agreement dated August 24, 2018 and others. Nevertheless, the court recognized the car as an instrument of criminal offense and confiscated it in favor of the state. This decision of the court does not meet the requirements of the law. At the request of the Criminal Procedure Law, the court carries out confiscation of property in a criminal case with strict observance of the constitutional right of a citizen to inviolability of property. With the materials in the criminal case, it is established that before the car was recognized as a weapon of criminal offense, it was sold to JK. K. did not know and did not have the opportunity to find out if this car was an instrument of a criminal offense or a weapon of a crime. A civil law contract in the form of the purchase and sale of a car was concluded between zh. and K. The specified contract is not recognized as illegal, has not been disputed by anyone and has not been terminated. In accordance with Article 26 of the Constitution of the Republic of Kazakhstan, citizens of the Republic of Kazakhstan may keep in private ownership any property that they have received legally.
Property rights are guaranteed by law. The resolution of the pre-trial investigation body, which recognized the car as a weapon of criminal offense, is illegal, as it violates the right to inviolability of personal property. If this contract is recognized as illegal and its criminal nature is proved, then only then can the pre-trial investigation body limit K.'s personal property. But this did not happen. From this point of view of the case, the part of the judicial acts relating to zh. confiscation of the car to the state income is canceled and subject to return to the owner of the car K. The judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan amended the judicial acts of local courts in relation to the convicted K. and R., The judicial acts in terms of confiscation of the car were canceled, and this car was excluded from confiscation for state income. The car was returned to the owner K. The remaining parts of the judicial acts were left unchanged. The petition of lawyer T., the representative of K., another person affecting the interests of judicial acts, was satisfied.
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