Deprivation of the right to hold a position or engage in certain activities  

By the verdict of the Abay District Court of Shymkent dated February 12, 2020: T. the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code of the Republic of Kazakhstan) – The third part of Article 55 of the criminal code is applied with the second part of Article 366, without confiscation of property, the right to hold positions in the civil service, judicial activity, local self-government bodies, the National Bank of the Republic of Kazakhstan and its departments, the authorized body for regulation, control and supervision of the financial market and financial organizations, state organizations and subjects of the quasi-public sector, the third part of Article 55 of the Criminal Code, sentenced to a fine in the amount of 13,200,000 tenge for thirty times the amount of a bribe. According to the first part of Article 49 of the Criminal Code, t. deprived of the special rank of" police lieutenant". E. the third part of Article 55 of the Criminal Code shall be applied with the deprivation of the right to engage in advocacy for 3 years, the right to hold positions in the civil service, judicial activity, local self-government bodies, the National Bank of the Republic of Kazakhstan and its departments, the authorized body for regulation, control and supervision of the financial market and financial organizations, state organizations and subjects of the quasi-public sector without a previous conviction, the second part of Article 368 of the criminal code, without confiscation of property, for life, he was sentenced to a fine in the amount of 4,400,000 tenge for ten times the amount of a bribe. Taking into account the cost of bribes not found during the pre-trial investigation, T. 50,000 tenge, E. 30,000 tenge were recovered to the state's income. 43,111 tenge of process costs were collected from T. A forced payment of 50,500 tenge from each of T. and E. was collected to the Victims ' Compensation Fund.  The issue of physical evidence is resolved in accordance with the procedure established by Article 118 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code).

Deprivation of the right to hold a position or engage in certain activities  

In a criminal case considered in the order of a procedural agreement, by a court verdict, T., being an official, using his official position, was found guilty of receiving a bribe for his actions in favor of the bribe-giver, and E. guilty of mediating this bribery.  The verdict was not reviewed on appeal. In the protest of the Acting Prosecutor General of the Republic of Kazakhstan, convicted persons T. I asked E. (hereinafter referred to as convicted persons) to prove their guilt and differentiate the actions of the above-mentioned criminal offenses, not to dispute the type and amount of the main punishment, but to change the sentence, indicating the incorrect application of the criminal law by the court when imposing additional punishment on them, to assign additional punishment in accordance with the criminal law in force at the time of the incident of the criminal offense. In the circumstances described in the verdict, the court's conclusion that T., being an official, using his official position, received a bribe in the amount of 360,000 tenge from him for his actions in favor of the bribe giver zh., and the evidence of E.'s guilt in mediating this bribery is based on the evidence, which was thoroughly studied at the main trial, given a legal assessment and corresponds to the actual circumstances of the case. When investigative actions are carried out in the case, the requirements of the CPC are observed, so the legality of this evidence does not raise any doubts. In accordance with the requirements of Article 125 of the criminal code, the court gave a reasonable assessment of each of the evidence-their relevance, admissibility, certainty, and all the accumulated evidence in its totality in terms of sufficiency for resolving a criminal case, correctly qualifying the actions of T. with the second part of Article 366 of the criminal code, the actions of E. with the second part of Article 368 of the criminal code. The court, when imposing a penalty on them, guided by the requirements of Article 52 of the Criminal Code, fairly imposed the main punishment, taking into account the nature and degree of public danger of their criminal actions, personal information, circumstances mitigating and aggravating criminal liability in the case, as well as the terms of the concluded procedural agreement. The substantiation of their guilt and differentiation of actions for a criminal offense, as well as the type and amount of the main punishment imposed on them, are not disputed in the protest. And in the process of imposing a mandatory additional punishment on convicted persons, the motivation of the protest against the violation of the law by the court is justified.

Criminal offenses in which convicted persons are found guilty belong to the category of corruption crimes in accordance with paragraph 29) of Article 3 of the criminal code. In accordance with the requirements of part two of Article 50 of the Criminal Code, a lifetime ban for committing corruption crimes must be imposed without fail, depriving the right to hold a certain position or engage in certain activities. As follows from the materials of the criminal case, criminal offenses for which convicted persons were found guilty occurred on September 15, 2019, and by the law of the Republic of Kazakhstan dated December 27, 2019 No. 292-VIZRK "on amendments and additions to some legislative acts of the Republic of Kazakhstan on improving criminal, criminal criminal legislation and strengthening the protection of individual human rights" (hereinafter referred to as – Law) the second part of Article 50 of the criminal code has been amended and supplemented, and the new version of this article has expanded the scope of positions and services subject to a lifetime ban on the right to exercise and exercise. In accordance with Article 5 of the PF, the criminality and punishability of an act is determined by the law in force at the time of the commission of the same act. From this point of view of the criminal law, the above-mentioned Law, which tightens the mandatory additional punishment and prohibits convicts from holding positions in "subjects of the quasi-public sector" for life, worsens their conditions. And in accordance with Article 6 of the Criminal Code, the law is retroactive, which eliminates the criminality and punishability of the act, otherwise improves the state of responsibility or mitigation of punishment of the person who committed the criminal offense. Therefore, the court had to impose additional penalties on them in accordance with the wording of the second part of Article 50 of this code, which was in force at the time of the criminal incident, taking into account the requirements of Articles 5 and 6 of the criminal code. In such a situation, the decision of the court to impose a mandatory additional punishment on convicted persons under the new version of part two of Article 50 of the criminal code is illegal. At the same time, in Paragraph 22 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4" on some issues of imposing criminal penalties", on the basis of the provisions of Article 50 of the criminal code, simultaneous deprivation of the right to hold certain positions or engage in certain activities for the same crime is not allowed.

In the course of imposing an additional penalty on E., the court, without complying with the requirement of this normative resolution, allowed the simultaneous deprivation of the right to hold certain positions and to engage in certain activities and, as an additional punishment, illegally appointed a three-year deprivation of the right to engage in advocacy, as well as a lifetime deprivation of the right to hold positions provided for in part two of Article 50 of the criminal code. The basis for the Cassation review of judicial acts that have entered into legal force in accordance with paragraph 5) of part one of Article 485 of the criminal code is violations committed during the investigation or judicial review of the case, including improper imposition of punishment. The Judicial Board of the Supreme Court of the Republic of Kazakhstan on criminal cases shall amend the verdict of the court of first instance in respect of convicted persons T. and E., T. I abolished the powers of additional penalties assigned to E. deprivation of the right to hold positions in the civil service, judicial activity, local self-government bodies, the National Bank of the Republic of Kazakhstan and its departments, the authorized body for regulation, control and supervision of the financial market and financial organizations, state organizations and subjects of the quasi-public sector for life and the right to engage in advocacy for 3 years. T. I told E. "in the civil service, judicial activity, local self-government bodies, the National Bank of the Republic of Kazakhstan and its departments, state organizations and organizations with a state share of more than fifty percent in the authorized capital, including national managing Holdings, National Holdings, national companies, national development institutions, whose shareholder is the state, their subsidiaries, in which more than fifty percent of voting shares (participation shares) belong to them, an additional penalty was also imposed" life deprivation of the right to hold positions in legal entities, more than fifty percent of voting shares (participation shares) of which belong to these subsidiaries." The remaining parts of the sentence were left unchanged. The protest of the Acting Prosecutor General of the Republic of Kazakhstan was satisfied. 

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