Expulsion from the Republic with a ban on entry into the territory of the Republic of Kazakhstan

Expulsion as an additional punishment may be imposed only in cases where it is provided for in the relevant article of the Special Part of the Criminal Code by the verdict of the specialized interdistrict Criminal Court of the city of Nur-Sultan dated February 22, 2021. U., who had no previous convictions, was convicted under part 4 of Article 121 of the Criminal Code of the Republic of Kazakhstan (hereinafter – CC) to 15 years of imprisonment with life imprisonment for the right to engage in teaching and other activities related to work with minors, while serving a sentence in an institution of the maximum security penal system. In accordance with article 51 of the Criminal Code, an additional punishment was imposed in the form of expulsion from the Republic of Kazakhstan with a ban on entry into the territory of the Republic of Kazakhstan for a period of 5 years after serving the main sentence. Collected from the U. A compulsory payment in the amount of 83,340 tenge was made to the Victims Compensation Fund, and the procedural costs spent on conducting expert examinations in the amount of 1,631,807 tenge were transferred to the state income. By the verdict of the court, U. was found guilty of committing violent acts of a sexual nature against a minor. By the decision of the judicial board for criminal cases of the Nur-Sultan City Court dated April 14, 2021, the verdict was left unchanged with the correction of an obvious typo and the exclusion of the sentence from the reasoning part of the sentence: "Total 1,706,921.85 tenge (rounded up - 1,706,922 tenge)". In the petition, M.'s lawyer, disagreeing with the judicial acts issued against U., points out that the court accepted only the victim's testimony as the basis for the conviction, which casts doubt on its reliability due to their inconsistency. Indicates that during the forensic medical examination, Sh. no damage has been detected, and the commission's molecular genetic examination gives only a tentative conclusion. According to the testimony of the convict, they confessed under pressure from police officers.

Expulsion from the Republic with a ban on entry into the territory of the Republic of Kazakhstan

U. was detained on September 2, 2020 at about 16:00 hours and was in the car of police officers until 23:00 hours, which does not exclude the exertion of pressure on him from their side. Requests the cancellation of judicial acts against the convicted person and the termination of criminal prosecution for the absence of corpus delicti in his actions. In accordance with article 14 of the International Covenant on Civil and Political Rights, adopted on December 16, 1966 and ratified by the Republic of Kazakhstan on November 28, 2005, anyone convicted of any crime has the right to have his conviction and sentence reviewed by a higher court in accordance with the law. According to paragraph 5) of part 1 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the basis for the cassation review of judicial acts that have entered into force is the incorrect imposition of punishment. The arguments presented in the petition of lawyer M. in the interests of the convicted person about the lack of proof of his guilt were verified both during the pre-trial proceedings and in the main trial and were reasonably declared untenable. To conclude that U. was guilty. The trial came through a comprehensive, complete and objective examination of all the evidence gathered in the case, and not only on the basis of the testimony of the victim Sh. or the testimony of witness S. So, the minor victim Sh. In his testimony, he described in detail the circumstances of the crime committed against him by the convicted U. violent sexual acts at home. The circumstances reflected in Sh.'s testimony are objectively confirmed by other evidence: - the conclusions of forensic biological and molecular genetic examinations, which established that the DNA mixture identified from the swab with the contents of Sh.'s anus probably belongs to Sh. and U.; - during a confrontation conducted between the convicted U. and the minor Sh., Sh. He confirmed that the convicted person had committed violent acts of a sexual nature against him; - inspections of cell phones belonging to U. and the minor Sh., during which correspondence was established between them, incoming calls from U. to the victim, also in the history of the Google search engine of U.'s cell phone, multiple visits to sites containing pornographic videos were found. According to the conclusion of the forensic psychological and psychiatric examination, the juvenile Sh. showed signs of increased suggestibility, signs of pathological fantasizing were not detected. In these circumstances, there are grounds for doubting the veracity of the testimony of the minor victim Sh. not available. The court correctly assessed his testimony as appropriate to the factual circumstances of the case.

As for the arguments of the petition for the convict U. to give initial confessions under pressure from police officers, as can be seen from the materials of the criminal case, his testimony was given in conditions that precluded the use of illegal investigative methods - with the participation of his lawyer, translator and with the use of video recordings, which were investigated by judicial authorities. Moreover, the conclusion of the psychological and forensic examination showed no signs of psychological pressure on U. At the time of the video recording, there was no evidence of blackmail, threats, physical violence, or making unfounded promises in order to change the meaning of his testimony. Also, the actual detention and presence of the convicted person on September 2, 2020 from 16:00 to 23:00 in the car of police officers did not find their objective confirmation. The crime was reported to the police on September 2, 2020 at 19:39 hours, registered at 22:04 hours, and the inspection of the scene began at 22:10 hours, which excludes the detention of the convicted person at 16:00 hours, even before the crime was reported. Thus, the arguments of the petition that the guilt of the convicted U. the commission of the crime charged against him has not been proven, and the courts have reasonably declared them to be untenable. The testimony of both the convicted person and the victim has been analyzed and compared with other evidence: witness statements, protocols of procedural actions, expert opinions, and physical evidence, which are detailed in the verdict, indicating the reasons for the decision. The evidence in the case was assessed by the court in accordance with the requirements of Article 125 of the CPC and, in its entirety, was reasonably found sufficient to convict U. and qualify his actions in part 4 of Article 121UK. At the same time, when imposing punishment by judicial authorities, an error was made in the application of substantive law. U.'s main punishment was imposed in accordance with the requirements of Article 52 of the Criminal Code, taking into account the nature and public danger of what he had done, the personality of the convicted person, the circumstances mitigating his punishment and the absence of an aggravating circumstance, in compliance with the rules of paragraph 3) of part 2 of Article 55 of the Criminal Code.

Expulsion from the Republic with a ban on entry into the territory of the Republic of Kazakhstan

However, the court's imposition of additional punishment in the form of expulsion from the Republic of Kazakhstan with a ban on entry into the territory of the Republic of Kazakhstan for a period of 5 years after serving the main sentence is not based on the requirements of the criminal law. Thus, the sanction of part 4 of Article 121 of the Criminal Code, under which U. was convicted, does not provide for the imposition of additional punishment in the form of expulsion from the Republic of Kazakhstan. Within the meaning of part 2 of Article 51 of the Criminal Code, the expulsion from the Republic of Kazakhstan of a foreigner or a stateless person for committing a crime may be imposed as an additional type of punishment only in cases where it is provided for by the relevant article of the Special Part of this Code as an additional punishment for the relevant criminal offense. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of local courts in relation to U. regarding the additional punishment imposed: - lifted the expulsion from the Republic of Kazakhstan with the establishment of a ban on entry into the territory of the Republic of Kazakhstan for a period of 5 years after serving the main sentence. The rest of the judicial acts remained unchanged. The petition of lawyer M. is not 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