Embezzlement and knowingly false statements by owning the entrusted property

By the verdict of the District Court No. 2 of Bostandyk District of Almaty dated July 12, 2019: K. was not previously convicted, under Paragraph "B" of part four of Article 176 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) (as amended in 1997) was sentenced to 8 years of imprisonment with deprivation of the right to engage in materially responsible work for a period of 5 years.  -With the second part of Article 419 of the Criminal Code-1 year of imprisonment. - On the basis of the third part of Article 58 of the Criminal Code K. sentenced to 8 years of imprisonment with deprivation of the right to engage in final financially responsible work for a period of 5 years, serving his sentence in a moderately safe institution of the Penal correction system. The term of serving the sentence is calculated from July 12, 2019. K. collected procedural costs in the amount of 11,391 tenge in favor of the state. The issue of physical evidence is resolved in accordance with the procedure established by Article 118 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code). By the court verdict K. he was found guilty of embezzlement of entrusted foreign property with the possession of an especially large amount and deliberately false statements about the commission of a crime. By the resolution of the judicial board for criminal cases of the Almaty City Court of March 31, 2020, the court verdict was changed, part of the conviction of K. was canceled by the second part of Article 419 of the criminal code, and a new acquittal was issued. K. The actions under Paragraph "B" of the fourth part of Article 176 of the criminal code are again differentiated into Article 254 of this code and sentenced to imprisonment for 2 years under this article. By the decision of the Turksib District Court of Almaty dated April 10, 2020, on the basis of Paragraph 2) of the first part of Article 71 of the criminal code, K. was released from punishment in connection with the expiration of the limitation period of the guilty verdict. In his protest, the prosecutor general referred to the circumstances of the case and the evidence, stating that the court of Appeal did not give an objective and adequate assessment of the circumstances that were undeniably determined by the totality of all the evidence investigated in the criminal case, the convicted K. it is not disputed that the latter's apartment was completely entrusted to him, that the keys to the bedrooms and small rooms of this apartment were only in it, that he did not perform any management functions in these companies, therefore he is not the subject of the crime provided for in Article 254 of the Criminal Code, the court of First Instance "No," he said., In relation to K., The decision of the court of Appeal and the acquittal were canceled and the sentence of the court of first instance was asked to remain valid.

Embezzlement and knowingly false statements by owning the entrusted property

In the petition of lawyer A., disagreeing with all judicial acts, noted that the norms of the Criminal Procedure Law in the criminal case were violated, the guilt of the convicted K. was not proved, the conviction was based only on false answers from the representatives of the victim, on assumptions, K. due to the lack of reliable evidence of embezzlement and damage to the victims ' money, he did not speak Russian Well, the translator was involved only at the end of the pre-trial investigation, thus his rights were violated, the case materials were not translated into the language he knew, he asked to cancel the force of judicial acts and justify K. In accordance with paragraphs 2), 3) of the first part of Article 485 of the CPC, the grounds for the Cassation review of court sentences and court decisions that have entered into legal force are improper application of criminal and criminal procedure laws, in which it is allowed to issue an unjustified acquittal or misdirection of the actions of the convicted person during the investigation or judicial review of the case. When considering this criminal case at the appeal stage, such violations were allowed. As found out in the court of First Instance, K. on the basis of an employment contract, since 2005, he worked as an economist in LLP and was a materially responsible person. In addition, since 2007, in connection with the establishment of special trust between the director and general founder of these companies zh. and his wife Ch., he has been working on additional tasks of the latter (receiving cash from sold equipment, issuing cash to workers for production and other needs). In September 2014, J. was diagnosed with "fourth degree stomach cancer", and he and Ch. On December 2, 2014, K. was told about his departure to Japan for treatment. Before leaving, Ch. entrusted K. to look at his apartment 8, Satpayev street, 24, Almaty, and handed over the keys to his outer door, bedroom and small (wardrobe) rooms. Further, due to the need for funds for the treatment of zh., K. was contacted by phone, and the latter was entrusted with collecting the proceeds from the techniques sold under the two companies and transferring US. 500,000 to his personal account.

"I don't know," he said. K., using the instructions of the first manager to collect the necessary money for treatment, in the performance of his functional duties, from December 18 to 27, 2014, he was entrusted with signing outgoing cash orders from the cash desks of the above companies where he worked, at the exchange rate of the same time, he received 430,000 US dollars, equivalent to 77,400,000 tenge. On January 2, 2015, he deliberately gave a false statement to the police about the theft of a large amount of 4 430,000, which he owned with the aim of misappropriating the money entrusted to him, and confirmed it in his answers as a victim of theft. Thus, by his intentional criminal offenses, he caused material damage to LLP K., That is, to the director of the partnership-the victim Ch. in total, 77,400,000 tenge, that is, a particularly large amount. This conclusion of the court of first instance is based on objective evidence that is comprehensively studied in the judicial investigation and given an appropriate assessment, does not raise any doubts in terms of consistency, and fully corresponds to the actual circumstances of the case. The listed evidence is presented in detail in the descriptive and motivational part of the sentence, combined with a complete, comprehensive and objective study of all the circumstances in the case. In particular, in accordance with the employment contracts concluded with LLP "M" dated June 28, 2005 and LLP "a" dated March 1, 2006, K. he was accepted as an economist for both of these companies and was recognized as a materially responsible person under the agreement on independent material Responsibility concluded between them on March 2, 2007.  K. in the course of his direct official duties and in order to fulfill the instructions of the head, the receipt of US 4 430,000 from the cash registers of the LLP is fully confirmed by the outgoing cash orders and the responses of the employees of the LLP requested as witnesses in the case. As well as K. the receipt of these funds from LLP is also confirmed by his false statement, which he submitted as a victim to the Department of internal affairs of Bostandyk district, about the theft of these funds, and his answers in this regard. And by the decision of the Auezovsky District Court of January 13, 2016, which entered into legal force, K. was charged a debt amount of 62,073,000 tenge in favor of "M" LLP, a state duty of 1,862,190 tenge, a total of 63,935,190 tenge, a debt amount of 15,327,000 tenge in favor of "a" LLP, a state duty of 459,810 tenge, a total of 15,786,810 tenge, on the contrary, he received the above amounts of money from LLP 9 the counterclaim of K. on invalidation of outgoing cash orders was dismissed. In this context of the case, the arguments of K. and his lawyers about the fact that the first person is not considered to be the person receiving money under the official article, that he did not receive funds from the LLP on the basis of expense cash orders, that these orders were made later, that there was no money in the cash desk of these companies were thoroughly checked in the court of First Instance and during the consideration of the civil case of the LLP claims for the recovery of this amount were correctly recognized as unreasonable. Since these conclusions of the courts of First Instance and the civil case are based on objective evidence and do not fully correspond to the merits of the case, the court of Cassation instance also fully agrees with them.

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