Criminal liability for the illegal handling of rare and endangered species, as well as prohibited species of plants or animals, their parts or derivatives

            In accordance with article 31, paragraph 1, of the Constitution, the State aims to protect an environment favourable to human life and health. Preservation of the fund of living organisms classified as especially valuable species endangered and increase in their population is the primary task of the state.

           One of the ways to protect rare and endangered species, as well as species of plants and animals prohibited for use, is criminal law measures against entities that encroach on the preservation of wildlife diversity.          

           Regulatory framework

 The main normative legal acts regulating issues related to the subject of generalization are:

- the Constitution (hereinafter referred to as the Constitution);

- Environmental Code (hereinafter referred to as the Environmental Code, EC);

- the Civil Code (hereinafter referred to as the Civil Code);

- the Civil Procedure Code (hereinafter referred to as the CPC);

- Law "On Specially Protected Natural Areas" (hereinafter referred to as the Law on Specially Protected Natural Territories);

- The Law "On the Protection, Reproduction and Use of Wildlife" (hereinafter referred to as the Law on the Protection, Reproduction and Use of Wildlife)

and other legislative acts.

Regulatory resolutions of the Supreme Court:

- "On the Application by the Courts of the Legislation on Liability for Certain Environmental Criminal Offenses" dated June 18, 2004 No1;

- "On Certain Issues of Imposition of Criminal Punishment" dated June 25, 2015 No4,

- "On the Consideration of a Civil Claim in Criminal Proceedings" dated June 20, 2005 No1, etc. 

General Characteristics of Criminal Offenses Related to the Illegal Handling of Rare and Endangered, as well as Prohibited for Use Species of Plants or Animals, Their Parts or Derivatives

              Criminal liability for the illegal handling of rare and endangered species, as well as species of plants or animals prohibited for use, their parts or derivatives is established by Article 339 of the Criminal Code (hereinafter referred to as the Criminal Code).

              Amendments made to the Criminal Code by Laws No. 268-VI of 28.10.2019 and No. 292-VI of 27.12.2019 significantly increased liability for acts under Article 339 of the Criminal Code.

              If earlier the maximum punishment under this article was imprisonment for up to 3 years, now it is up to 12 years in prison with confiscation of property and deprivation of the right to hold certain positions in activities for up to 5 years.

              In addition, Article 339 of the Criminal Code has been supplemented with qualified elements (parts 2, 3), which establish liability for the commission of a criminal offense: repeatedly; by a group of persons, a group of persons by prior conspiracy; in specially protected natural areas; by a person using his official position; causing major damage; a criminal group; with the infliction of especially large damage.

The public danger of this act consists in the fact that the perpetrator encroaches on rare or endangered species of animals and plants, their parts or derivatives, including species, the treatment of which is regulated by international treaties of the Republic of Kazakhstan, as well as plants or animals on which a ban on use has been imposed, their parts or derivatives, as well as their habitats,  which causes harm to the environment.

All criminal offenses provided for in Article 339 of the Criminal Code are classified as crimes, which indicates their increased danger to society.

Restrictions and prohibitions on the use of wildlife for the purpose of its conservation and reproduction, as well as the protection of rare and endangered species of animals, are provided for in Articles 14-15 of the Law "On the Protection, Reproduction and Use of Wildlife" and Articles 256 and 257 of the EC.

Animals classified as rare and endangered species of animals are state property, and bred and kept in captivity or semi-free conditions can be both in state and private ownership.

Actions that may lead to the death, reduction in the number or violation of the habitat of rare and endangered species of animals are not allowed (paragraph 1 of Article 257 of the EC).

From the objective point of view, the actions of the perpetrator are expressed in the illegal extraction, acquisition, storage, sale, import or export, transfer, transportation or destruction of rare and endangered species of plants or animals, their parts or derivatives, including species whose handling is regulated by international treaties, as well as plants or animals on which a ban on use has been imposed, their parts or derivatives.  as well as the destruction of their habitats.

              Illegal hunting should be understood as unauthorized hunting of these species of animals and plants, if it is carried out without proper permission (without a license, etc.).

Acquisition should be understood as the  paid or gratuitous receipt of these animals or plants in any form: purchase, appropriation by discovery, receipt by fraud or as a gift, on account of debt, in exchange, collection, etc.

Storage should be understood as any deliberate actions related to being in actual possession of the guilty object of this crime without appropriate permission.

Sale covers any methods of their illegal distribution: sale, gift, exchange (barter), payment of debt, lending, etc.

Import is a pass to the Republic of Kazakhstan through the customs border of the Eurasian Economic Union of plants or animals imported from foreign countries.

Export means export across the customs border of the Eurasian Economic Union of plants or animals produced (grown) in the Republic of Kazakhstan.

              A derivative should be understood as a derivative of an animal and products made from it and its derivative (Clause 33 of Article 1 of the Law "On the Protection, Reproduction and Use of the Animal World"). Derivatives of plant and animal origin include blood, urine, musk, bile, glands, antlers, horns, products from animal meat, etc.

              Such actions as: illegal extraction, acquisition, storage, sale, import, export, transfer, transportation or destruction of rare and endangered plants, animals, their parts, derivatives in general constitute their illegal circulation.

From the subjective side, a crime is characterized by a deliberate form of guilt (direct or indirect intent).

The perpetrator of the crime may be a natural person of sound mind who has reached the age of 16.

In 2019, Article 339 of the Criminal Code was supplemented with Part 1-1, which provides for special liability for the illegal hunting, destruction of saiga, acquisition, storage, sale, export, transfer, transportation of illegally hunted saiga or its derivatives, including horns.

The overwhelming majority of cases under Article 339 of the Criminal Code are related to the trafficking of illegally hunted saiga or its derivatives, namely the illegal destruction of saigas and the sale of their horns.

Saiga antelopes fall prey to poachers because of their horns, which are in high demand on the black market in some foreign countries, where their value is highly appreciated.

frontier countries, where their cost is highly estimated. At the same time, the importance of preserving saiga for Kazakhstan lies in the fact that, according to experts, 95% of the world's saiga population lives on the territory of our country.

Issues of qualification of actions for the storage of derivatives and recovery of the amount of environmental damage.

The courts of the republic as a whole have developed a unified practice of qualifying the acts provided for in Article 339 of the Criminal Code.

Thus, by the verdict of the court No2 of the city of Aktobe dated October 26, 2023, E.V. Emelyanov was found guilty of illegal acquisition, storage, sale and transportation of saiga horns causing major damage.

It was established that Yemelyanov found saiga horns in the amount of two pieces and decided to sell them by placing an ad for sale.

The court found the charge justified and sentenced Yemelyanov under Article 339, Part 2, Paragraph 5) of the Criminal Code to 3 years and 6 months of restriction of liberty with deprivation of the right to engage in hunting activities for a period of 5 years.

              By the decision of the Judicial Chamber for Criminal Cases of the Supreme Court of July 30, 2024, the judicial acts regarding the qualification of Yemelyanov's actions as causing major damage were recognized as lawful and justified. Adjustments were made only to exclude the qualifying feature of "sale" and reduce the punishment in this regard.

              This position of the court is based on the requirements of the current legislation.

Thus, the actions for the illegal extraction, acquisition, storage, sale, import, export, transfer, transportation or destruction of rare and endangered species of plants or animals, saigas, as well as their derivatives, specified in the disposition of the norms of Article 339 of the Criminal Code, are alternative, and the commission of any of them forms the corpus delicti of this crime.

Thus, the criminal law establishes equal responsibility (qualification of the act, punishment) both for the extraction, i.e. direct removal from the natural environment of these plants and animals, and for the storage of their derivatives (horns, blood, antlers, etc.).

At the same time, according to the current version of Parts 2 and 3 of Article 339 of the Criminal Code, the extraction of plants and animals, as well as the storage of derivatives, are subject to qualification on the grounds of "causing major damage" and "causing especially large damage".

The amount of damage indicates an increased degree of public danger of the crime, since significant material damage is caused to the environment.

The establishment of major damage by law enforcement agencies is of qualifying importance and directly affects the application of one or another part of the criminal law to the perpetrator, is within the limits of proof and is the most important condition for compliance with the law in the administration of justice in criminal cases of the generalized category.

When calculating the amount of damage, the courts are guided by the following legal provisions. In accordance with paragraph 23 of the Regulatory Resolution of the Supreme Court "On the Application by the Courts of the Legislation on Liability for Certain Environmental Criminal Offenses", the environmental damage caused by the violator is calculated and must be compensated by the guilty person in full, regardless of whether the damage was caused as a result of intentional actions (inaction) or through negligence, in accordance with the norms of the Civil Code of the Republic of Kazakhstan, Section Five of the EC,  The Law on the Protection of Wildlife, Orders of the Ministry of Agriculture of the Republic of Kazakhstan dated February 27, 2015 No 18-03/158 "On Approval of the Amount of Compensation for Damage Caused by Violation of the Legislation of the Republic of Kazakhstan in the Field of Protection, Reproduction and Use of Wildlife", on the basis of the methods for calculating the amount of damage specified in the regulatory legal acts in force at the time of causing damage, and in their absence - according to the actual costs of elimination environmental damage or restoration of consumer properties of natural resources, taking into account the losses incurred.

It is not possible to determine the value of the derivatives seized from offenders, including horns. In some cases, the courts appointed forensic commodity examinations in order to establish such a value.

Experts concluded that it was impossible to give a conclusion. The reason is that the circulation of derivatives in Kazakhstan is prohibited and, accordingly, there are no price offers and the ability to determine the average cost.

              Based on this, when determining the amount of environmental damage, the courts are guided by the Order of the Ministry of Agriculture of the Republic of Kazakhstan dated February 27, 2015 No 18 03/158 "On Approval of the Amount of Compensation for Damage Caused by Violation of the Legislation of the Republic of Kazakhstan in the Field of Protection, Reproduction and Use of Wildlife", which approved the amount of compensation for damage for each saiga in the amount of 500 MCI. For each illegally obtained or acquired derivative, according to the List of derivatives approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated February 16, 2015 No 18-03/105 (registered in the Register of State Registration of Regulatory Legal Acts No 10482), 100 percent of the amount of compensation for damage for an adult individual (male or female) of this species of animals (in monthly calculation indicators) is collected.

              At the same time, there are cases when the courts excluded the sign of "causing major or especially large damage" and incorrectly qualified the actions of the guilty persons, as well as in connection with this refused to satisfy claims for compensation for environmental damage.

As a motive, the courts indicated that the actions of the convicts who did not catch or shoot animals did not cause damage to the environment.

For example, in the Aktobe region, A.A. Burkhanov was convicted, who kept 2 saiga horns at his home, previously cut by him from the corpse of a saiga found in the steppe.

The investigating authorities qualified Burkhanov's actions under paragraph 5) of Part 2 of Article 339 of the Criminal Code, as illegal acquisition, storage of illegally obtained saiga horns, which caused major damage.

However, by the verdict of the Shalkar District Court of February 9, 2022, Burkhanov's actions were reclassified under Part 1-1 of Article 339 of the Criminal Code with the exception of the sign "causing major damage".

The court justified the reason for the reclassification by the fact that the actions of the directly convicted person did not cause damage to nature, since he did not extract derivatives by destroying a live saiga individual.

On the same grounds, the court dismissed the claim of the authorized body for the recovery of environmental damage in the amount of 4.3 million tenge.

By the decision of the appellate instance of March 15, 2022, the sentence was left unchanged.

These judicial acts were changed by the Supreme Court Resolution of March 3, 2023: the actions of the perpetrator were qualified under paragraph 5) of Part 2 of Article 339 of the Criminal Code with the satisfaction of the claim in full.

A similar fact took place.

V.V. Bauska was charged under paragraph 5) of Part 2 of Article 339 of the Criminal Code, i.e. illegal acquisition, storage, sale and transportation with causing major damage of 2 pieces of saiga antlers, which he found on the street.

By the verdict of the court No2 of Aktobe dated February 1, 2024, Bauska was convicted under paragraph 5) of part 2 of Article 339 of the Criminal Code to 3.6 years of restriction of liberty with deprivation of the right to engage in hunting for a period of 5 years. In addition, the court satisfied the claim for the recovery of environmental damage in the amount of 5.1 million tenge.

However, the appellate instance by its decision of March 11 this year reclassified the actions of the convict under Parts 1-1 of Article 339 of the Criminal Code, motivating this by the absence of a causal relationship between his actions and the consequences in the form of major damage.

By the decision of the Supreme Court of July 30 of this year, this judicial act was canceled on the same grounds as the judicial acts of local courts in the case of Burkhanov (due to the violation by the appellate instance of paragraph 23 of the NP of the Supreme Court of 18.06.2004 No1).

Thus, the verdict of the court of first instance in the case of Bauska was recognized as legal.

Thus, the Supreme Court and the courts of the republic, in general, have developed a unified approach to the consideration of cases under Article 339 of the Criminal Code.

It is based on the current version of Article 339 of the Criminal Code and other regulatory legal acts.

At the same time, it should be noted that the current version of Article 339 of the Criminal Code needs to be amended.

              The disposition of the article regarding the qualification of actions to obtain and destroy plants and animals, saigas on the basis of "causing large and especially large damage" is logical.

At the same time, the validity of including in the same article of the Criminal Code liability for the acquisition, storage, transportation, sale, import, export, and shipment of derivatives raises questions.

According to Article 133 of the Environmental Code, environmental damage to fauna and flora is recognized as any damage caused to the components of the natural environment, which has a significant negative impact on the achievement or preservation of a favorable state of species of fauna and flora and natural habitats.

Accordingly, in cases where offenders acquire derivatives from other persons or derivatives are obtained by them as a result of removal from already dead animals, the occurrence of environmental damage from their actions can be questioned. This contradiction of the current legislation is especially when law enforcement agencies simultaneously prosecute persons, both those who hunted animals and those who purchased derivatives from them.

Thus, by the verdict of the Temir District Court of the Aktobe region dated February 28, 2023, Uteumaganbetov K.K., Aldiyarov A.Zh. were convicted under paragraph 2), 5) part 2 of Article 339 of the Criminal Code of the Republic of Kazakhstan to restriction of liberty for a period of 4 years 6 months with deprivation of the right to engage in hunting activities for a period of 5 years each.

The civil claim of the RSI "Aktobe Regional Territorial Inspectorate of Forestry and Wildlife" to recover from the convicts the amount of damage on a large scale in the amount of 13,783,500 tenge was dismissed.

According to the case file, on October 20, 2022, Uteumaganbetov and Aldiyarov, seeing the carcasses of 6 specimens of saigas without legs and abdomen lying on the ground, sold them to the residents of the village Kulmaganbetov M.T. and Taubayev A. for 15,000 tenge for each carcass, earning a total of 90,000 tenge.

The court of first instance motivated its refusal to satisfy material damage by the fact that material damage from the convicts Uteumaganbetov and Aldiyarov is not subject to repeated recovery, since earlier, by the verdict of the Baiganinsky District Court of the Aktobe Region dated December 15, 2022, Kulmaganbetov and Taubayev were sentenced to 3 years in prison under paragraph 2), 5) of Part 2 of Article 339 of the Criminal Code of the Republic of Kazakhstan for the fact of purchasing 6 saiga carcasses from Uteumagambetov and Aldiyarov.

The civil claim of the "Aktobe Regional Territorial Inspectorate of Forestry and Wildlife" was left without consideration in connection with the full compensation of damage caused to the wildlife by convicts Kulmaganbetov and Taubayev in a large amount of 13,783,500 tenge.

On April 24, 2023, the Board of Appeals changed the court verdict against Uteumaganbetov and Aldiyarov.

In terms of the civil claim for damages, it was satisfied. The amount of damage in the amount of 13,783,500 tenge was recovered from the convicts. The case was not submitted for consideration to the cassation instance.

The need to improve the wording of Article 339 of the Criminal Code also confirms the facts of bringing persons to justice in connection with the "secondary" circulation of derivatives.

By the verdict of the Panfilov District Court of the Zhetysu Region of January 31, 2024, Toybaev R.E., Igilikov B.B., Ruziev M.U., Kamey M., Botabayev B.E., were convicted under paragraph 2) of Part 3 of Article 339 of the Criminal Code to imprisonment for a period of 7 years with deprivation of the right to engage in activities related to hunting for a period of 5 years each.

Material damage in the amount of 2,255,899,500 tenge was recovered from the convicts. Igilikov B.B., Botabaev B.E., Kamei M., Ruziev M.U., Toybaev R.E., were found guilty of the fact that a group of persons, by prior conspiracy, carried out the illegal acquisition, storage, transportation, sale of saiga derivatives in the amount of 980 pieces with the infliction of especially large damage.

In its appeal, the defense pointed out that these saiga horns were used as material evidence in the criminal case of the specialized criminal court of the former Atyrau region, the horns are unusable, valued at 1 tenge and sent by the court verdict for disposal.

The Board of Appeals upheld the verdict of the court, considering the arguments of the defense to be untenable.

In the light of this problem, it should be noted that in the Criminal Code of the Russian Federation, Article 258.1, which provides for liability for the acquisition, storage, transportation, and sale of derivatives, does not contain qualifying signs "with the infliction of large and especially large damage".

However, such an absolute exclusion of the gradation of responsibility of persons who acquire and store derivatives in different quantities is also not justified and violates the principle of individualization of punishment.

Offenders should not bear the same responsibility for storing 2 pieces of horns and 1 thousand saiga horns. The solution to this issue is seen in the introduction of a separate Article 339-1 of the Criminal Code, which provides for liability for actions related to derivatives.

This article can provide for the qualifying signs "on a large scale", "on an especially large scale".

The size should be determined by the number of derivatives depending on the number of animals from which derivatives were seized.

The adoption of the amendments will remove the issues of qualification and will allow individualizing the punishment according to the severity of the deed (a more severe punishment for persons engaged in shooting or capturing animals, a less severe one for those guilty of storing derivatives).

This will also resolve the issues of compensation for environmental damage only from persons who directly removed animals from the natural environment. These amendments, in our opinion, will ensure the correct qualification of the perpetrators, the inevitability of punishment, the recovery of damages and the uniformity of judicial practice.

Issues of qualification of acts under Articles 337 - Illegal hunting and 339 - Illegal handling of rare and endangered, as well as prohibited species of plants or animals, their parts or derivatives of the Criminal Code             

              In a number of cases, the criminal prosecution authorities and the courts qualified the actions of the perpetrators committed under similar circumstances in different ways.

For example, by the verdict of the Irgiz District Court of the Aktobe Region dated October 19, 2023, T.A. Mirkhanov was sentenced under paragraph 5) of Part 2 of Article 339 of the Criminal Code to 3 years of restriction of liberty with deprivation of the right to engage in hunting activities for a period of 5 years.

According to the case file, Mirkhanov shot 2 individuals by driving saigas on a motorcycle using a hunting rifle.

However, by the verdict of the Ulytau District Court of the Ulytau Region dated August 4, 2023, I.A. Kadyr, who also shot 1 saiga antelope by driving a motorcycle and using a gun, was sentenced to 3 years of restriction of liberty, but under paragraph 2), 4) Part 4 of Article 337 of the Criminal Code (illegal hunting against rare and endangered species of animals, as well as animals on which a ban on use has been imposed).

In the third case, by the verdict of the Tselinograd District Court of the Akmola region dated September 25, 2023, S.O. Saduev, who shot the 1st saiga, was convicted of a combination of crimes: paragraph 2), 4) part 4 of Article 337 of the Criminal Code and paragraph 5) of part 2 of Article 339 of the Criminal Code.

The above examples of ambiguous practice are due to the lack of clear criteria in the legislation for distinguishing the acts provided for in Articles 337 and 339 of the Criminal Code, and the lack of certainty of the concepts contained in Article 339 of the Criminal Code. "acquisition" and "destruction",

In order to eliminate competition between Articles 337 and 339 of the Criminal Code, it is advisable to exclude paragraph 2) from Part 4 of Article 337 of the Criminal Code "In relation to rare and endangered species of animals, as well as animals on which a ban on use has been imposed", and in paragraph 1 of the same part to exclude the words "in specially protected natural areas".

In addition, in the dispositions of Parts 1 and 1-1 of Article 339 of the Criminal Code, after the word "hunting", we consider it necessary to supplement the word "including hunting", since within the meaning of Article 32 of the Law "On the Protection, Reproduction and Use of Wildlife", "hunting" is equated with "hunting".

Along with this, the Supreme Court proposed in the NP SC of 18.06.2004 No1 paragraph 10 to be supplemented with the third paragraph of the following content: "In the event of illegal hunting (catching or shooting) of rare and endangered species of animals, including species whose treatment is regulated by international treaties of the Republic of Kazakhstan, as well as animals on which a ban on the use of  saigas, the deed should be qualified under the relevant part of Article 339 of the Criminal Code."

The adoption of these amendments will make it possible to qualify any criminal actions in relation to rare and endangered, as well as prohibited species of plants or animals, including saigas, their parts or derivatives under one article of the Criminal Code (Article 339 of the Criminal Code).

Issues of imposition of additional punishment

The imposition of additional punishment on persons who have committed a crime under Article 339 of the Criminal Code meets the requirements for the restoration of social justice and the prevention of new criminal offenses.

The sanctions of Parts 1, 2, 3 of Article 339 of the Criminal Code provide for mandatory deprivation of the right to hold certain positions or engage in certain activities for up to five years.

At the same time, there are facts when the courts did not impose an additional punishment in the form of a ban on hunting.

Thus, by the verdict of the Taldykorgan City Court of September 22, 2023, Sagynbai B. was found guilty of illegal acquisition, storage, transportation and sale of saiga horns causing especially large damage and sentenced under paragraph 2) of part 3 of Article 339 of the Criminal Code to 7 years in prison.

The claim of the victim in the amount of 579.6 million tenge was satisfied.

By the decision of the appellate instance of January 10 this year, the punishment on the basis of Part 4 of Article 55 of the Criminal Code was reduced to 5 years. The rest of the verdict of the court of first instance was left unchanged.

These judicial acts were changed by the Supreme Court with the imposition of an additional punishment in the form of a ban on hunting for a period of 5 years.

In this case, the cassation instance proceeded from the fact that the additional punishment in Part 3 of Article 339 of the Criminal Code is mandatory, then the appellate instance, applying Part 4 of Article 55 of the Criminal Code, did not motivate the reason for not imposing an additional punishment.

In the case of Zh. Umirshiev and other persons under paragraph 2) of part 3 of Article 339 of the Criminal Code, the appellate instance of the Zhetysu regional court also did not impose an additional punishment, motivating this by the lack of data in the case on the hunting of saiga horns.

Taking into account the fact that the imposition of an additional punishment under Part 3 of Article 339 of the Criminal Code is mandatory, as well as the nature of the acts committed by the perpetrators related to the sale of saiga antlers, by the decision of the Supreme Court of May 3 this year, the convicts were sentenced to an additional punishment in the form of a ban on hunting for a period of 5 years.

Along with this, earlier the courts allowed the imposition of an additional punishment without specifying the activity, the right to engage in which the convict is deprived of.

For example, by the verdict of the court of Aktau dated October 6, 2022, A.A. Kaniyev was convicted under paragraph 2) of part 3 of article 339 of the Criminal Code to 7 years in prison with deprivation of the right to engage in entrepreneurial activities for a period of 3 years. Kaniyev was found guilty of illegal acquisition and storage of sturgeon, which caused damage in the amount of 63.8 million tenge.

The appellate court changed the sentence with the imposition of a sentence in the form of deprivation of the right to engage in fishing for 3 years, since the first instance deprived the convict of the right to engage in entrepreneurship in general, without any specifics.

The same fact took place in the case against R. Mizambayev, who was sentenced by the Aktau court of October 12, 2022 under paragraph 2) of part 3 of article 339 of the Criminal Code to 7 years in prison with deprivation of the right to engage in entrepreneurial activities for a period of 3 years.

The court's mistake in terms of imposing an additional punishment was corrected by the appellate instance, which sentenced the convict to deprive him of the right to engage in fishing for a period of 3 years.

In general, the measures taken to eliminate shortcomings in the work of the courts have ensured the uniformity of practice in the imposition of additional punishment in cases of the generalized category.

At the same time, it should be noted that the sanctions of all parts of Article 339 of the Criminal Code, except for the sanction of Parts 1-1 of Article 339 of the Criminal Code, provide for a mandatory additional punishment - deprivation of the right to hold certain positions or engage in certain activities.

Based on these norms, a person who has shot, for example, a gazelle will be prohibited from hunting for up to 5 years, and in the case of shooting a saiga - not.

Such legal inequality does not correspond to the task of the state to preserve the population of rare animals and the principle of justice and proportionality of sentencing.

In this regard, it is proposed to supplement the sanction of Part 1-1 of Article 339 of the Criminal Code (by analogy with other parts) with a mandatory punishment in the form of deprivation of the right to hold certain positions or engage in certain activities for up to 5 years.

Measures to respond to violations of the law, statistics on the issuance of private rulings

Part 4 of Article 53 of the Criminal Procedure Code provides for the authority of the court to respond to the circumstances that contributed to the commission of a criminal offense, violation of the rights of citizens, as well as other violations of the law committed during the pre-trial investigation.

Most often, the courts reacted to violations committed by the investigating authorities during the conduct of investigative actions.

Thus, in the case against S. Saduev, the court of the Tselinograd District Court of the Akmola region issued a private ruling to the prosecutor and the head of the DP of the region.

The court pointed out that the investigative body did not conduct an examination of the seized sweat traces, while the fingerprints from the weapons, clothes and shoes of the detainees were not seized.

In another case, the court of Arkalyk issued a special ruling to the prosecutor in the case of B. Suleimenov on the fact of finding falsification of the signature in the decision to engage a specialist.

Meanwhile, there were facts of the issuance of private rulings in the absence of sufficient grounds. For example, on May 4 of this year, the court No2 of Atyrau in the case against K. Mardanov under paragraph 5 of part 2 of Article 339 of the Criminal Code issued 4 special rulings on violations committed during the pre-trial investigation.

However, 3 private rulings were canceled by the appellate instance at the request of the prosecutor, because they did not find factual confirmation in the court session of the collegium.

Therefore, when issuing private rulings, the courts should strictly comply with the requirements of Articles 53, 405 of the Criminal Code and the regulatory resolution of the Supreme Court of 19.12.2003 No. 11 "On the practice of issuing private rulings by courts in criminal cases".

Attention!

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases