Criminal defense lawyer giving, receiving a bribe
By the verdict of the court No. 2 of the city of Kostanay, Kostanay region, dated August 7, 2019: O., who had no previous criminal record, was sentenced under paragraph 4) of part 2 of Article 367 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 2 years in prison with life imprisonment for the right to hold positions related to the performance of organizational, distributive and administrative duties. functions related to serving a sentence in an institution of the minimum security penal system. By the verdict of the court of O. He was found guilty of being the director of LLP "K", on September 28, 2018, he gave a bribe in the amount of 300,000 tenge to the Deputy Director for the Administrative and Economic part of the State Archive of the Republic of Kazakhstan for expedited receipt of payment and assistance in the acceptance of supplied equipment. By the resolution of the Judicial Board for Criminal Cases of the Kostanay Regional Court dated September 26, 2019, the verdict was changed. The punishment in the form of imprisonment was replaced by a fine in the amount of twenty times the amount of the bribe, which amounts to 6,000,000 tenge. Based on part 3 of Article 62 of the Criminal Code, the time of O.'s detention from August 7, 2019 to September 26, 2019 was counted as a fine based on one day of detention for four monthly calculation indices (hereinafter referred to as MCI) and a fine of 5,871,225 tenge was finally determined. The additional punishment imposed on convicted O. has been clarified, indicating a ban on holding positions in accordance with the list established by the fourth paragraph of part 2 of Article 50 of the Criminal Code. It is explained that in accordance with part 3 of Article 41 of the Criminal Code, in case of evasion from payment of a fine, it is subject to be replaced by imprisonment within the limits of the sanction provided for in part 2 of Article 367 of the Criminal Code.
The prosecutor's protest raises the issue of changing the decision of the court of appeal due to the incorrect application of the criminal law, which led to the incorrect imposition of punishment. The court's conclusions about the guilt of convicted O. in the act charged against him under the circumstances set out in the court verdict are correct and based on the totality of evidence examined at the court session, and are not disputed in the prosecutor's protest. O.'s actions under paragraph 4) of part 2 of Article 367 of the Criminal Code have been given a correct legal assessment. However, by imposing a fine on the convicted person, the court of appeal violated the requirements of the criminal law. So, according to paragraph 1) In the presence of a mitigating circumstance not provided for as a sign of a committed crime, and in the absence of aggravating circumstances, the term or amount of the main type of punishment may not exceed half of the maximum term or amount provided for in the relevant article of the Special Part of this Code when committing a crime of moderate gravity. According to the verdict, the court recognized the presence of minor children of the perpetrator as a circumstance mitigating criminal liability and punishment of the convicted person. The court has not established any circumstances aggravating responsibility and punishment. In accordance with Article 11 of the Criminal Code, the crime provided for in paragraph 4) Part 2 of Article 367 of the Criminal Code refers to crimes of moderate severity. The sanction of this article, which was in effect on the day of the commission of O. The crime was punishable by a fine in the amount of twenty to thirty times the amount of the bribe (in the current version of December 19, 2020, the sanction was strengthened). In accordance with article 5 of the Criminal Code, the criminality and punishability of an act are determined by the law in force at the time of the commission of this act. According to part 3 of Article 6 of the Criminal Code, a law that establishes the criminality or punishability of an act, increases responsibility or punishment, or otherwise worsens the situation of the person who committed this act has no retroactive effect. Accordingly, the size of the assigned O. The penalty, based on the criminal law in force at the time of the commission of the crime, should not exceed fifteen times the amount of the bribe, which is 4,500,000 tenge. In accordance with the explanation of paragraph 10 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 15 "On judicial practice on the application of Article 6 of the Criminal Code of the Republic of Kazakhstan" in cases where the criminal law has been changed repeatedly between the day of the commission of a criminal offense and the day of sentencing or judicial act of the appellate court, the most favorable for a person who has been brought to criminal responsibility, a criminal law, including an interim one. Thus, when applying part 3 of Article 62 of the Criminal Code, one should proceed from the amount of the MCI established in 2019, that is, 2,525 tenge.
In addition, explaining the procedure for replacing a fine in case of evasion from payment, the court of appeal in its decision mistakenly referred to part 3 of Article 41 of the Criminal Code, whereas paragraph 4 should have been followed) part 6 of Article 41 of the Criminal Code. Based on the above, the judicial Board for Criminal Cases of the Supreme Court changed the decision of the appellate instance against O. On the basis of paragraph 1) of part 2 of Article 55 and Article 6 of the Criminal Code, the amount of the fine imposed on O. under part 2 of Article 367 of the Criminal Code was reduced to 4,500,000 tenge. According to part 3 of Article 62 and Article 6 of the Criminal Code, the time in custody of O. in the period from August 7, 2019 to September 26, 2019, was counted as a fine at the rate of one day of detention for four monthly calculation indices and the amount of the fine in the amount of 3 984,900 (three million nine hundred eighty four thousand nine hundred) tenge. Clarified that in accordance with paragraph 4) In case of non-payment of a fine within the prescribed time, the unpaid part of the fine is replaced by imprisonment within the sanction of part 2 of Article 367 of the Criminal Code, taking into account the paid and collected part of the fine. The rest of the decision of the Court of appeal was left unchanged. The protest of the Acting Prosecutor General of the Republic of Kazakhstan is satisfied.
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