Criminal Law Firm - irremediable doubts about the guilt of the suspect, the accused, the defendant are interpreted in their favor

By the verdict of the military court of the Almaty garrison dated August 25, 2017: B., who had no previous convictions, was acquitted under part 2 of Article 369 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) for the absence of corpus delicti in his actions.; - convicted under part 2 of Article 453 of the Criminal Code to 2 years and 6 months of imprisonment while serving his sentence in an institution of the minimum security penal system. The term of serving the sentence is calculated from August 25, 2017. M., who had no previous criminal record, was sentenced under part 2 of Article 453 of the Criminal Code to 3 years in prison, under part 2 of Article 369 of the Criminal Code to 2 years in prison with life imprisonment for the right to hold positions in military and public service. On the basis of part 2 of Article 58 of the Criminal Code, according to the totality of criminal offenses committed, by absorbing a less severe punishment with a more severe one, 3 years of imprisonment were finally imposed, without confiscation of property, with life imprisonment for holding positions in military and public service, with serving the sentence in an institution of the medium-security penal correction system. Due to the requirements of parts 1, 2 of Article 49 of the Criminal Code, he was stripped of the military rank of "Major of Justice". The term of serving the sentence is calculated from August 25, 2017. A., who had no previous criminal record, was sentenced under part 2 of Article 453 of the Criminal Code to 3 years in prison, under part 2 of Article 369 of the Criminal Code to 2 years in prison with life imprisonment for the right to hold positions in military and public service. Based on part 2 of Article 58 of the Criminal Code, 3 years of imprisonment were finally imposed with life imprisonment from holding positions in military and public service, with punishment served in institutions of the medium-security penal correction system. Due to the requirements of parts 1 and 2 of Article 49 of the Criminal Code, he was stripped of the military rank of "senior Lieutenant of Justice".

Criminal Law Firm - irremediable doubts about the guilt of the suspect, the accused, the defendant are interpreted in their favor

The term of serving the sentence is calculated from August 25, 2017. From convicts B., M. and A. The procedural costs in the amount of 36,359 tenge were collected jointly and severally to the state revenue. By the verdict of the court, B., M., A. were found guilty of the fact that they, being officials, improperly and unfairly performed the duties assigned to them, their negligent attitude to the service led to the grave consequence of the death of S. The verdict was changed by the decision of the judicial Board for Criminal Cases of the Military Court of the Republic of Kazakhstan dated December 6, 2017. Actions of convicts B., M., A. They were reclassified from part 2 of Article 453 of the Criminal Code to part 1 of Article 453 of the Criminal Code and a fine of 700 MCI was imposed on everyone under this article, based on Article 2 of the Law of the Republic of Kazakhstan dated December 13, 2016 "On Amnesty in connection with the twenty-fifth anniversary of Independence of the Republic of Kazakhstan" B., M. were released from this punishment. To the convict M. The unserved part of the punishment imposed under part 2 of Article 369 of the Criminal Code in the form of two years of imprisonment based on Article 3 of the Law of the Republic of Kazakhstan dated December 13, 2016 "On Amnesty in connection with the twenty-fifth anniversary of Independence of the Republic of Kazakhstan" was replaced by a fine of 330,876 tenge. The rest of the verdict was left unchanged. In the submission, the Chairman of the Supreme Court requests that the judicial acts against B. be reviewed due to a violation of uniformity in the interpretation and application of legal norms by the courts. Due to the fact that the actions of B., M., A. Judicial acts are interrelated, and they are subject to review in respect of all convicted persons in terms of their convictions under Article 453 of the Criminal Code. The court's conclusions about the guilt of B., M., and A. in negligent attitude to service, which caused significant harm, are not supported by a set of sufficient and reliable evidence. By virtue of paragraph 8) of part 3 of Article 77 of the Constitution of the Republic of Kazakhstan and part 3 of Article 19 of the CPC, irremediable doubts about the guilt of a suspect, accused, or defendant are interpreted in their favor. It follows from the testimony of convicts B., M. and A. that S. He was held in the conditions of the Department in order to exclude unlawful encroachment on him, since in the criminal case against T., under part 1 of Article 440 of the Criminal Code (violation of statutory rules), he was recognized as a victim. These arguments of the convicts have not been refuted, and the evidence confirming which actions of convicts B., M., and A. resulted in socially dangerous consequences in the form of causing significant harm to the victim and what this harm consists of has not been established. By virtue of the presumption of innocence and in accordance with Article 19, part 3 of Article 393 of the CPC, as well as paragraph 18 of the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On judicial verdict", a guilty verdict cannot be based on assumptions and must be supported by a sufficient body of reliable evidence.

Thus, it follows from the materials of the criminal case that the victim, Private S. of the Guards, being a participant in the criminal process as a victim, from April 9 to June 5, 2016, illegally staying at the location of the Military Police Department of the Guards Garrison (hereinafter the Department), was left to himself, since he did not carry out the daily duties of military service. He was deprived of the opportunity to study military craft, to acquire professional knowledge and combat skills along with his colleagues. He did not follow the daily routine of a conscript serviceman, did not ensure proper provision of his prescribed clothing and food allowances, and found himself in a difficult life situation based on constant quarrels with his girlfriend because of jealousy. This together contributed to the manifestation of suicidal intentions, which were realized by him on June 5, 2016, on the territory of the Department, by hanging, which led to the death of the latter. On this day, at about 11:45 p.m. He was found hanged with a trouser belt on a metal fence post in the rear area of the Department, and at 00:25 hours on June 6, 2016, medical workers pronounced him biologically dead. The court, finding B., M., and A. guilty under part 2 of Article 453 of the Criminal Code, based its conclusions on the fact that as a result of negligent attitude to service, a grave consequence occurred in the form of the death of victim S. At the same time, the court of appeal, having come to a reasonable conclusion that the cause of suicide committed by victim S. were of a domestic nature, he reclassified the actions of B., M., A. on part 1 of Article 453 of the Criminal Code. At the same time, the court of appeal justified its conclusions by the fact that the illegal presence in the Department caused significant harm to the victim S., which resulted in a violation of constitutional rights and freedoms, and the emergence of a difficult life situation for him. However, it is impossible to agree with such a conclusion of the court of appeal. A prerequisite for criminal prosecution under part 1 of Article 453 of the Criminal Code is the causal relationship between the act and the resulting consequence, as well as the infliction of significant harm. According to paragraph 14 of Article 3 of the Criminal Code, harm is recognized as significant if the following consequences have occurred: violation of constitutional human and civil rights and freedoms, rights and legitimate interests of organizations, legally protected interests of society and the state; causing significant damage; occurrence of a difficult life situation for the injured person; disruption of the normal work of organizations or government agencies; disruption of important military measures or a short-term decrease in the level of combat readiness and combat capability of military units and subunits; untimely detection or repulse of attacks by armed groups or individual armed persons, land, air or naval military equipment, allowing unhindered illegal passage of persons and vehicles across the State Border of the Republic of Kazakhstan, movement of contraband goods, connivance of actions damaging border facilities, technical means of border protection; other consequences indicating the materiality of the damage caused.

Criminal Law Firm - irremediable doubts about the guilt of the suspect, the accused, the defendant are interpreted in their favor

Based on the requirements of the said law, the fact that S., being left to himself, did not carry out the duties assigned to military service, was deprived of the opportunity to study military craft, acquire professional knowledge and combat skills along with his colleagues, his failure to comply with the daily routine as a conscript, as well as the inadequate provision of his due clothing and food allowances, the emergence of a difficult life situation due to constant quarrels with his girlfriend because of jealousy, It cannot indicate the significance of the harm, since, according to the court's conclusions, the cause of S.'s suicide is not a military service relationship, they are of a domestic nature and are not directly causally related to the negligence of the perpetrators. According to article 24 of the CPC, the court is obliged to take all measures provided by law for a comprehensive, complete and objective investigation of the circumstances necessary and sufficient for the proper resolution of the case. The circumstances of the case are subject to clarification, both incriminating and justifying the defendant, as well as mitigating and aggravating their responsibility and punishment. In accordance with article 388 of the CPC, a sentence is recognized as lawful and justified if it is passed in compliance with all requirements of the law and on the basis of the law, based on a comprehensive and objective examination of the evidence presented to the court at a court hearing. The same is stated in paragraph 2 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On the court verdict". However, the verdict against B., M., and A. on finding them guilty of negligent attitude to service, which caused significant harm, does not meet the specified requirements. In this case, there is a discrepancy between the conclusions of the court and the actual circumstances of the case, which led to the conviction of innocent persons. Thus, due to violations of uniformity in the interpretation and application by courts of the norms of criminal law and procedure, judicial acts of local courts need to be changed, and the criminal proceedings under part 1 of Article 453 of the Criminal Code in respect of B., M., A. to terminate due to the absence of elements of a criminal offense in their actions, to satisfy the submission of the Chairman of the Supreme Court. In this regard, the board considers it necessary to apply Article 58 of the Criminal Code in relation to M., A. to cancel. In accordance with part 1 of Article 39 of the CPC, having made a decision on the full or partial rehabilitation of a person, the body conducting the criminal process must recognize his right to compensation for harm. Due to the fact that the criminal case against B. subject to termination due to the absence of elements of a criminal offense in his actions, he should be recognized as having the right to compensation for damage caused by illegal actions of bodies conducting criminal proceedings.

At the same time, the guilt of M. and A. in committing official forgery is confirmed by the evidence examined at the court session, witness statements, expert opinions and other case materials. The court reliably established that on the night of June 5-6, 2016, M. instructed A. to produce a false security order dated April 9, 2016. After that, M. handed over this resolution to B. for the issuance of the relevant secondment order by the command of the unit. It follows from the forensic examination report No. 8091 dated January 5, 2017 that Order No. 86 dated April 13, 2016 was created on April 13, 2016 at 5:45 p.m., and the last changes to the file were made on June 6, 2016 at 3:29 a.m. In such circumstances, it should be recognized that the actions of M. and A. under part 2 of Article 369 of the Criminal Code are correctly qualified and there are no grounds for revision in this part. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court amended the judicial acts of the local courts in respect of B., M.,A. Criminal proceedings in respect of B., M., A. according to part 1 of Article 453 of the Criminal Code, it was terminated due to the absence of elements of a criminal offense in their actions. The application of article 58 of the Criminal Code against M. was abolished, and A., in accordance with the procedure provided for in Chapter 4 of the Code of Criminal Procedure, B.'s right to rehabilitation and compensation for damage caused by illegal actions of the bodies conducting the criminal process was recognized. The rest of the judicial acts against M. and A. under part 2 of Article 369 of the Criminal Code remained unchanged. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied. 

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