Criminal prosecution is subject to termination if a person has an outstanding decision of the criminal prosecution authority to terminate criminal prosecution on the same suspicion.
By the verdict of the Ekibastuz City Court of Pavlodar region dated January 23, 2017, A., convicted on May 14, 2015 under paragraph 2) of part 3 of Article 190 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) with the application of Article 55 of the Criminal Code to a fine of 1,500 monthly calculation indices in the amount of 2,973,000 tenge, with life imprisonment hold certain positions in the civil service and in local government bodies; By a court decision of November 18, 2016, the fine was commuted to imprisonment for a period of 1 year and 10 days, and he was sentenced under paragraph "b" of part 4 of Article 177 of the Criminal Code to 6 years and 6 months in prison, with confiscation of property belonging to him by right of ownership, as well as with confiscation of immovable property located in at the address: Ekibastuz, K.Satpayev Boulevard, house 8, building 2, apartment 43, purchased with criminally obtained funds and was a means of committing a criminal offense. On the basis of part 3,5,6 of Article 58 of the Criminal Code, according to the totality of criminal offenses, the unserved part of the sentence imposed by the verdict of May 14, 2015 in the form of a fine was partially added to the punishment, which was replaced by a court decision of November 18, 2016 with imprisonment with the addition of an additional punishment in the form of life imprisonment in the form of the right to hold certain positions in public service, in particular He was finally sentenced to 7 years and 4 months in prison, with confiscation of property belonging to him by right of ownership., as well as with the confiscation of immovable property located at the address: Ekibastuz, K.Satpayev Boulevard, house 8, building 2, apartment 43, acquired with criminally obtained funds and which was a means of committing a criminal offense, with life imprisonment for holding certain positions in the civil service, local governments, and serving a sentence. in a general regime penal colony.
Criminal prosecution is subject to termination if a person has an outstanding decision of the criminal prosecution authority to terminate criminal prosecution on the same suspicion.
The term of A.'s sentence was calculated from January 23, 2017. The arrest imposed in order to ensure possible confiscation of property located at the address: Ekibastuz, Boulevard K. Satpayeva, building 8, building 2, apartment 43, owned by O., born on July 14, 1984, has been preserved. From the convicted A. in favor of J. property damage in the amount of 9,162,500 tenge was recovered, 200,000 tenge was recovered for the services of a representative, 5,000,000 tenge was recovered in K.'s favor, and a state fee in the amount of 141 625 tenge and procedural costs in the amount of 83 216 tenge were recovered to the state revenue. By the verdict of the court, A. was found guilty of fraud, that is, theft of other people's property by deception and abuse of trust, committed repeatedly, on an especially large scale, causing damage to the victims. in the amount of 9,162,500 tenge and K. in the amount of 5,000,000 tenge. By the decision of the judicial Board for Criminal Cases of the Pavlodar Regional Court dated April 11, 2017, the verdict of the court against convicted A. remained unchanged. It was clarified that in accordance with part 6 of Article 58 of the Criminal Code, for the totality of offenses, by partial addition of punishments, 7 years and 4 months of imprisonment were finally appointed to serve, with confiscation of property belonging to him by right of ownership, as well as with confiscation of the above-mentioned immovable property, with life imprisonment for the right to hold certain positions in public service, in local government bodies. In the protest, the Prosecutor General, without disputing the guilt and correctness of the qualification of the actions of the convicted A. according to the episodes of victim K., he points out that judicial acts on the episode of victim J. are subject to cancellation due to improper application of the criminal procedure law, which led to the conviction of an innocent man. Having studied the materials of the criminal case and discussed the arguments of the protest, the judicial Board for Criminal Cases of the Supreme Court came to the following conclusion. As follows from the materials of the criminal case, the investigator from the Department of Internal Affairs G. Ekibastuz S. On August 4, 2014, a decision was issued to terminate the criminal prosecution against A. for the episode of the victim Zh. in accordance with paragraph 2) of part 1 of Article 37 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) for the absence of corpus delicti in his actions. This resolution has not been canceled by anyone and has legal force. As can be seen from the materials of the criminal case, on March 2, 2015, the senior assistant prosecutor of Ekibastuz, E., issued a decision to cancel the decision on termination of criminal prosecution against A. dated August 4, 2014, which was not approved by the head of the prosecutor's office in accordance with the requirements of article 193 of the CPC. According to paragraph 8) of part 1 of Article 35 of the CPC, a criminal case is subject to termination if a person has an outstanding decision of the criminal prosecution authority to terminate criminal prosecution on the same suspicion. Despite the above requirements of the criminal procedure law, A. was unlawfully convicted by the court on an episode of embezzlement of the victim's property.
Criminal prosecution is subject to termination if a person has an outstanding decision of the criminal prosecution authority to terminate criminal prosecution on the same suspicion.
On February 23, 2017, lawyer K. sent an addendum to the appeal to the appeal instance of the Pavlodar Regional Court, which stated that the investigator's decision had not been reversed. Meanwhile, the court of appeal did not examine the lawyer's argument and left it without permission. The above circumstances led to the conclusion that the court did not take into account these factual data and unreasonably convicted A. according to the episode of the victim Zh. In this regard, the proceedings in the case of fraud against victim Zh. were to be terminated on the basis of paragraph 8) of part 1 of Article 35 of the CPC. According to article 9 of the CPC, the importance of the principles of criminal procedure is that their violation, depending on its nature and materiality, entails the recognition of a procedural action or decision as illegal, the cancellation of decisions made during such proceedings, or the recognition of the materials collected as having no validity of evidence or the proceedings in the case as invalid. The Judicial Board considers that the exclusion of the accusation episode significantly reduces the scope of the entire charge against A., and therefore the imposed sentence is subject to reduction to 6 years and 2 months of imprisonment. In accordance with part 1 of Article 48 of the Criminal Code, confiscation of property is the forced gratuitous seizure and conversion into State ownership of property owned by a convicted person, obtained by criminal means or acquired with funds obtained by criminal means, as well as property that is an instrument or means of committing a criminal offense. The Judicial Board considers it necessary to cancel the additional measure of punishment in the form of confiscation of property belonging by right of ownership, imposed by the court of A.. Judicial acts are also subject to cancellation regarding the recovery of amounts from A. in favor of J. in a civil claim, with the claim being dismissed in accordance with the requirements of paragraph 32 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005 No. 1 "On consideration of a civil claim in criminal proceedings." In accordance with the above-mentioned paragraph of the regulatory resolution, a civil claim may be dismissed only upon termination of a criminal case as a result of an act of amnesty, after the expiration of the statute of limitations for criminal prosecution, as well as on the grounds specified in paragraphs 7) and 8) of the first part of Article 37 of the CPC and in Article 38 of the CPC (as amended by December 13, 1997). Leaving a civil claim without consideration in criminal proceedings does not deprive the civil plaintiff of the right to bring a claim in civil proceedings. The board also found it necessary to reduce the amount of money collected from A. to the state revenue for state fees and procedural costs. Based on the above, the judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in respect of A., in connection with which the proceedings on the episode of fraud against the victim Zh. were terminated. In addition, an additional penalty in the form of confiscation of property belonging to the right of ownership has been abolished. It was decided to recognize A. guilty under paragraph "b" of part 4 of Article 177 of the Criminal Code of the episodes of the victim K. and assign him 6 years and 2 months of imprisonment under this article, with confiscation of immovable property located at the address: Ekibastuz, Boulevard K. Satpayeva, building 8, building 2, apartment 43, acquired with criminally obtained funds and was a means of committing a criminal offense.
Criminal prosecution is subject to termination if a person has an outstanding decision of the criminal prosecution authority to terminate criminal prosecution on the same suspicion.
On the basis of part 6 of Article 58 of the Criminal Code, according to the aggregate of criminal offenses, by partial addition of punishments, according to the verdict of the Ekibastuz City Court of May 14, 2015, 7 (seven) years of imprisonment with confiscation of immovable property located at the address: Ekibastuz, Boulevard K. Satpayeva, building 8, building 2, apartment 43, acquired with funds obtained by criminal means and was a means of committing a criminal offense, with life imprisonment for the right to hold certain positions in the civil service, in local governments, with serving a sentence in an institution of the medium-security penal system. Judicial acts regarding the recovery of sums from A. in favor of J. in a civil claim in the amount of 9,162,500 tenge for compensation of material damage, 200,000 tenge for the services of a representative were canceled. In addition, the claim of the victim Zh. He was left without consideration and was granted the right to appeal in civil proceedings. The amount of sums collected from A. to the state revenue has been reduced: for the state fee – up to 50,000 tenge, for procedural costs – up to 45,398 tenge 48 tiyns. The rest of the judicial acts have been left unchanged. The Prosecutor General's protest is satisfied.
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