Criminal offenses against property and the imposition of punishment
By the verdict of the Mendykarinsky District Court of Kostanay region dated May 29, 2017, decided in the conciliation proceedings, L., who had no previous convictions, was sentenced under paragraphs 1) and 2) of part 3 of Article 189 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 5 years in prison with confiscation of property, life imprisonment for the right to hold public office in public service, financially responsible positions and serving sentences in a correctional colony of the general regime. In accordance with part 1 of Article 74 of the Criminal Code, the execution of a custodial sentence against a convicted person has been postponed for 5 years. The case was not considered on appeal. By the verdict of the court, L. was found guilty of being an accountant of the Municipal State Institution "Employment Center of the Akimat of Mendykarinsky district", committed embezzlement of funds entrusted to her in the amount of 2,821,476 tenge. In the protest, the Prosecutor General asks for the verdict of the court against L. to amend, with the application of part 4 of Article 55 of the Criminal Code, to impose a restriction of liberty for a period of 5 years with the establishment of probation control for the entire term of the sentence, to cancel the application of part 1 of Article 74 of the Criminal Code and additional punishment in the form of confiscation of property and to impose an additional punishment in the form of a ban on holding a certain position for a specific period in accordance with the requirements of Part 2 Article 50 of the Criminal Code
The guilt of the convicted L. in embezzlement of funds entrusted to her in the amount of 2,821,476 tenge has been proved by the case materials. At the same time, the qualification of the actions of the convicted person under paragraph 2) of part 3 of Article 189 of the Criminal Code, that is, on the basis of embezzlement using official position by a person equated to a person authorized to perform state functions, is not based on the law and the materials of the criminal case. So, L. committed embezzlement while working as a specialist accountant for the remuneration of a public utility institution, that is, a state organization. According to paragraph 28) of Article 3 of the Criminal Code, a person who is equivalent to an authorized person to perform state functions does not include any employee of a state organization, but only a person who performs managerial functions in such an organization. According to the criminal law, a person who performs organizational and administrative or administrative duties in this organization is recognized as performing managerial functions in an organization. According to paragraph 37) of Article 3 of the Criminal Code, organizational and organizational functions are the right granted in accordance with the procedure established by the law of the Republic of Kazakhstan to issue orders and orders binding on subordinates, as well as to apply incentive measures and disciplinary penalties against subordinates, according to paragraph 5) of Article 3 of the Criminal Code, administrative and economic functions are granted in accordance with the procedure established by the law of the Republic of Kazakhstan. in accordance with the procedure established by the Law of the Republic of Kazakhstan, the right to manage and dispose of property on the balance sheet of the organization. It does not appear from the job description of the specialist (accountant) for L.'s remuneration that she had the rights of a person performing managerial functions in an organization specified in paragraphs 5) and 37) of Article 3 of the Criminal Code. Thus, L. did not have other employees of the Communal state Institution under her command and did not have the right to manage and dispose of property on the balance sheet of this organization. In such circumstances, from the accusation of the convicted L. the indication that she committed embezzlement using her official position by a person equated to a person authorized to perform state functions, that is, paragraph 2) of part 3 of Article 189 of the Criminal Code, is subject to exclusion. In this regard, the sentence imposed by the court of convicted L. is also subject to exclusion from the sentence. lifetime deprivation of the right to hold financially responsible positions in public institutions in the civil service, since the sanction of paragraph 1) of part 3 of Article 189 of the Criminal Code does not provide for additional punishment in the form of deprivation of the right to hold a certain position or engage in a certain activity at all. In accordance with part 4 of Article 55 of the Criminal Code, if there are exceptional circumstances related to the goals and motives of the act, the role of the perpetrator, his behavior during or after the commission of the crime and other circumstances that significantly reduce the public danger of the act, the court may impose a milder type of punishment than provided for in this article. According to the materials of the criminal case L. She has no previous criminal record, has fully admitted her guilt and sincerely repented of the crime, has voluntarily compensated for property damage, has a dependent minor son, born in 2012, and a minor daughter, born in 2001, and is raising them alone. The Court of cassation recognizes these circumstances as exceptional and considers it possible to impose the main punishment in the form of restriction of liberty on the convicted person using part 4 of Article 55 of the Criminal Code. In addition, the court's verdict is also subject to review regarding the imposition of additional punishment in the form of confiscation of property. Thus, in accordance with article 48 of the Criminal Code, property obtained illegally or acquired with funds obtained illegally, or property that is an instrument or means of committing a criminal offense, is subject to confiscation. The decision of the lower court to confiscate the property of the convicted person does not comply with the above requirements of the criminal law. In this criminal case, no property has been identified that was obtained by the convicted person illegally or acquired by her with funds obtained illegally, and which would be subject to confiscation in accordance with article 48 of the Criminal Code. In the verdict, the court did not justify its decision on confiscation and did not indicate the list of confiscated property. Based on the above, the judicial Board for Criminal Cases of the Supreme Court changed the verdict of the court of first instance and excluded from the verdict L.'s conviction under paragraph 2) of part 3 of Article 189 of the Criminal Code. The appointment of the convicted L. was canceled. additional penalties in the form of confiscation of property and life imprisonment for the right to hold financially responsible positions in public institutions in the civil service. Convicted L. was sentenced to 5 years of restriction of liberty under paragraph 1) of part 3 of Article 189 of the Criminal Code on the basis of part 4 of Article 55 of the Criminal Code. In accordance with part 1 of Article 74 of the Criminal Code, the execution of the punishment in the form of restriction of liberty in relation to the convicted L. was postponed for 5 years. The rest of the court's verdict against L. was upheld, and the protest of the Prosecutor General of the Republic of Kazakhstan was partially satisfied.
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