Factual data obtained in violation of Criminal Procedure Law shall be recognized as inadmissible data as evidence and shall not be referred to as the basis for prosecution
By the verdict of the Al-Farabi District Court of Shymkent dated November 20, 2017: K. was sentenced to 3 years and 6 months in prison under the third part of Article 24 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), paragraph 2) of the second part of Article 216. The punishment imposed on the basis of Article 63 of the criminal code is considered conditional; t. not previously convicted, sentenced to 3 years and 6 months in prison under the third part of Article 24, paragraph 2) of the second part of Article 216 of the criminal code. The punishment imposed on the basis of Article 63 of the criminal code is considered conditional; E. previously convicted, sentenced to 3 years and 6 months in prison under the third part of Article 24, paragraph 2) of the second part of Article 216 of the criminal code. The punishment imposed on the basis of Article 63 of the criminal code was considered conditional. By the court verdict, K. as the head of LLC " K " for the purpose of making property profit T. I was found guilty of attempting to cause damage to the state in the amount of ipi in the amount of 54,757,143 tenge by writing invoices and other documents for construction items in the amount of 191,670,000 tenge to the latter at the suggestion of B. For the work and services that were not performed with the help of E. I., the representative of "K" LLP wrote to the latter in the amount of 191,670,000 tenge for a remuneration of 5.5%, that is, 10,540,000 tenge. The verdict was not reviewed on appeal. The prosecutor general asked to cancel the verdict of the court of First Instance and terminate the criminal case due to the fact that the rights of K., T. and E. were violated as a result of provocations in the protest, and the requirements of the law were grossly violated. When the court assessed that the actions of K., T. and E. contained the composition of the criminal offense provided for by Paragraph 2) of the second part of Article 216 of the criminal code, it did not take into account that the crime is subjectively characterized by an intentional form of guilt. Their intention should be to issue false invoices to themselves and their counterparties in order to obtain property benefits in the form of tax evasion. This intention should be formed before Operational-Search measures begin. The criminal case does not provide information about the fact that K., T. and E. have long been engaged in the sale of false invoices and evidence of operational-search measures carried out. In accordance with Article 2 of the law of the Republic of Kazakhstan" on operational-search activities", the tasks of the operational-search service are to identify, prevent and suppress these crimes. At the same time, in accordance with the requirements of Article 15 of this law, it is prohibited to incite and provoke citizens to offenses in the conduct of operational search measures. The criminal offense against K., T. and E. was registered in the SDTBT on April 5, 2016 after B. provoked convicts to commit crimes and agreed to buy fake invoices from them. The court of first instance did not take into account the fact that B. was involved in exposing several crimes in this way. By the resolution of the Supreme Court of the Republic of Kazakhstan dated July 2, 2020, the sentence against T. was canceled and the criminal case was terminated due to the absence of corpus delicti in his actions. By the decision of the Supreme Court of the Republic of Kazakhstan dated October 22, 2020, the verdict against O., A., K. and SH. was canceled, and the criminal case was terminated due to the absence of corpus delicti in their actions.
Factual data obtained in violation of Criminal Procedure Law shall be recognized as inadmissible data as evidence and shall not be referred to as the basis for prosecution
Since these cases provoked convicted persons to commit a crime in the actions of B., The criminal case was terminated due to the absence of corpus delicti in their actions due to the fact that before acquaintance with B. did not provide information about the sale of false invoices and evidence of the operational-search measures carried out. In accordance with the requirement of Article 112 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code), factual data obtained in violation of the Criminal Procedure Law are recognized as inadmissible data as evidence and are not subject to prosecution. In such a situation, the actual data obtained as a result of the illegal actions of the criminal prosecution body and B. are not classified as evidence. In accordance with the requirement of the first part of Article 24 of the CPC, the court, prosecutor, investigator, INQUIRER are obliged to take all measures provided for by law for a comprehensive, complete and objective study of the circumstances necessary and sufficient for the correct resolution of the case. However, during the investigation and trial of the criminal case, it was not established what kind of affiliation of B. to "K" LLP, whether he had the right to act on behalf of this partnership, whether the representatives of the partnership expressed their will to commit a crime on behalf of the LLP, how B. intends to further use false invoices and other documents received from convicts, and whether or not this partnership actually intends to evade payment of taxes on organizations, other mandatory payments to the budget. Without establishing the listed circumstances, there are no grounds for recognizing K., T. and E. guilty by the third part of Article 24 of the criminal code, paragraph 2) of the second part of Article 216. In accordance with the requirement of Paragraph 2) of the first part of Article 35 of the Criminal Code, if the Act does not contain a criminal offense, then the criminal case is terminated. In this context of the case, due to the absence in the actions of K., T. and E. of the composition of the criminal offense provided for by the third part of Article 24 of the criminal code, paragraph 2) of the second part of Article 216, the court verdict against them is canceled and the criminal case is subject to termination. A person acquitted in court in accordance with the requirement of the first part of Article 37 of the code of Criminal Procedure, as well as a criminal case against them in accordance with the requirements of the first part of Article 35 of this Code 1), 2), 5), 6), 7) a suspect, accused, defendant, on whom a decision of a court, a criminal prosecution body has been issued on termination on the grounds provided for in paragraphs 8) is subject to rehabilitation, that is, their rights are restored, and their rights and freedoms guaranteed by the Constitution of the Republic of Kazakhstan may not be restricted in any way. In accordance with the requirement of part one of Article 39 of the Criminal Procedure Code, the body conducting criminal proceedings, making a decision on full or partial acquittal of a person, must recognize his right to compensation for harm. Since the criminal case against them is subject to termination due to the absence of a corpus delicti in the actions of K., T. and E., It is necessary that they are recognized as having the right to compensation for harm. The Judicial Board of the Supreme Court of the Republic of Kazakhstan on criminal cases annulled the verdict of the court of first instance against the convicted K., T., E. the criminal case was terminated due to the absence of the corpus delicti in the actions of the convicted K., T., E. On the basis of Chapter 4 of the CPC, it is recognized that K., T., E. have the right to compensate for damage caused as a result of illegal actions of the bodies that carried out the criminal process. The protest of the prosecutor general of the Republic of Kazakhstan was satisfied.
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