Deprivation of liberty with confiscation of property, with deprivation of the right to hold public office for exceeding his authority and official powers beyond the limits of his rights and powers, in order to extract benefits

The absence of a qualifying feature – "in order to extract benefits and advantages for oneself" from the convicted person was the basis for the exclusion from the charge of paragraph "b" of the fourth part of Article 308 of the Criminal Code and the reclassification of his actions under the second part of Article 308 of the Criminal Code by the verdict of the Bukhar-Zhyrau district court of the Karaganda region of April 11, 2013: A., convicted under paragraph "in" part four of Article 308 of the Criminal Code to 6 years of imprisonment with confiscation of property, with deprivation of the right to hold public office for a period of 4 years and serving a sentence in a correctional colony of general regime. Collected from A. in favor of O., 2,243,354 tenge was awarded to compensate for the damage caused. By the decision of the Appellate Judicial Board for Criminal Cases of the Karaganda Regional Court dated June 3, 2013, the verdict of the court remained unchanged. By the decision of the Cassation judicial board of the Karaganda Regional Court dated July 16, 2013, the verdict and decisions of the court of appeal were left unchanged. By the verdict of the court of A. He was found guilty of being an official and a representative of the government authorized to perform state functions, exceeding his authority and official powers beyond his rights and powers in order to extract benefits and advantages for himself.

Deprivation of liberty with confiscation of property, with deprivation of the right to hold public office for exceeding his authority and official powers beyond the limits of his rights and powers, in order to extract benefits

Having studied the materials of the criminal case at the request of the convicted person's lawyer, the supervisory board of the Supreme Court of the Republic of Kazakhstan amended the judicial acts against A. on the following grounds. A.'s guilt in abuse of power and official powers has been proved by the case materials. In the case, it was established that A., being the deputy head of the police department, the head of the investigative department, exceeding his authority and official powers, clearly going beyond his rights and powers, without sufficient grounds, without registering in the KUZI and without carrying out procedural actions, significantly violating the rights and legitimate interests of citizens, August 11, 2012 of the year, he illegally seized 16 heads of horses belonging to O. A. from B. During the removal of livestock, he was obliged to comply with all procedural requirements, namely, to draw up a procedural document with the participation of witnesses describing the number and sex of livestock; to take measures to preserve livestock and register materials in the KUZI. However, A., instead of fulfilling his immediate official duties, illegally seized cattle, drove them with the participation of his relatives to the territory of his father's farm. For more than two weeks, I have not taken any measures to determine whether the cattle belong to anyone.; In the case of livestock deaths, he also failed to take measures to draw up procedural documents; he illegally kept livestock on other farms. All these actions led to the fact that 10 heads of cattle disappeared and significant damage was caused to the victim for a significant amount. If A. had complied with all the requirements of the law, this would not have led to a significant violation of O.'s rights and legitimate interests. The established circumstances of the case are confirmed by the testimony of O., witnesses, the protocol of the inspection of the scene, a certificate of the discovery of 35 heads of horses indicating their colors, age and gender, photographs, the conclusion of a forensic economic examination, as well as other evidence examined at the court session.

Based on the evidence recognized by the court as reliable and permissible, the court reasonably concluded that the convict's guilt was proven in committing acts that he had no right to commit. At the same time, the supervisory board of the Supreme Court of the Republic of Kazakhstan considered that the qualifying feature "in order to extract benefits and advantages for oneself" was not based on the materials of the criminal case and the law. The Court of First Instance, taking into account the circumstances of the fact that from the moment of the illegal seizure by the convict A. 16 heads of horses, and that before the victim received 6 heads from them, 10 heads of various colors were missing, unreasonably concluded that these circumstances directly indicate the convict's obvious interest in obtaining benefits for himself. In the materials of the criminal case, there is also no data that could indicate that the missing 10 heads of cattle resulted in benefits for A., and his involvement in the loss of these horses.It follows from the testimony of witness K. that he is the head of the Telman police department. In early August 2012, information was received that an orphan herd of horses was grazing near the village. He instructed his deputy A. to check the information received, take measures for their safety and gave guidance to the Department of Internal Affairs.

According to the requirements of the first part of Article 379 of the CPC, the descriptive and motivational part of the conviction must contain a description of the criminal act recognized by the court as proven, indicating the place, time, and method of its commission. However, the court, qualifying the actions of the convicted person under paragraph "b" of the fourth part of Article 308 of the Criminal Code as an excess of power or official authority in order to extract benefits for themselves, did not establish exactly what benefit the convicts had from the missing 10 heads of horses. Therefore, the court's conclusions that A. having committed a crime in order to extract benefits and advantages for oneself is erroneous. In this regard, A.'s actions lack a qualifying feature – "in order to extract benefits and advantages for himself," which is the basis for excluding paragraph "b" of the fourth part of Article 308 of the Criminal Code from the charge.

Thus, the actions of convicted A. should be qualified under the second part of Article 308 of the Criminal Code as an abuse of authority by an official, resulting in a violation of the legitimate rights and interests of the victim. In such circumstances, the additional penalty of confiscation of property should also be excluded from the sentence. The Supervisory Board of the Supreme Court of the Republic of Kazakhstan has changed the judicial acts issued in the case against A. A.'s actions. They were reclassified from paragraph "b" of part four of Article 308 of the Criminal Code to part two of Article 308 of the Criminal Code, and he was sentenced to 1 year and 6 months in prison with deprivation of the right to hold public office for a period of 2 years and serving his sentence in a general regime penal colony. 

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