Found guilty of embezzlement of other people's property by deception and abuse of trust
By the verdict of the Court of Aktobe city No. 2 of Aktobe region dated December 5, 2019: K. was not previously convicted, sentenced to 2 years of restriction of freedom under Paragraph 3) of part two of Article 190 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code). By the verdict of the court, K. was found guilty of embezzlement of other people's property by deception and abuse of trust using his official position. By the decision of the Judicial Board of the Aktobe Regional Court for criminal cases dated January 15, 2020, the sentence was left unchanged. The prosecutor general of the Republic of Kazakhstan, without contesting the evidence of the guilt of the convicted person in the protest and the correct differentiation of his actions, considers the incorrect application of the norms of criminal law in the case when imposing a punishment on K. As it turned out from the case materials K. State enterprise" Aktobe Agricultural College "(hereinafter referred to as "Aktobe Agricultural College") – The College), held the position of deputy director for educational and production work, deliberately, with direct selfish motives, fraud by entering into trust, that is, in order to commit the embezzlement of other people's property by deception and abuse of trust and the acquisition of rights to other people's property using his own official position, an employee who was hired at the college as a teacher of special disciplines in the specialty of land management with an hourly wage on the grounds that the college is for the needs of an employee, thought in advance to earn financially easily by fraudulently misappropriating fifty percent of his salary, clearly wanting it, made a plan to commit a criminal offense, implemented it, as a result of which he caused property damage to the victim.
Found guilty of embezzlement of other people's property by deception and abuse of trust
In accordance with paragraphs 1, 2, 22 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "on some issues of the imposition of criminal punishment", the courts strictly observed the general rules for the imposition of punishment specified in Article 52 of the Criminal Code, as well as the category to which the criminal offense belongs, , in order to achieve the goal of a criminal offense, it is necessary to take into account the significance of its actions and the impact on the nature and amount of damage caused or possible, the presence of a set of criminal offenses, the presence of circumstances mitigating or aggravating liability and punishment, the grounds for imposing a more lenient punishment than the punishment provided for the same criminal offense. When determining the degree of danger to society of a committed criminal offense, the courts should take into account its severity provided for in Article 11 of the criminal code, as well as the totality of circumstances at the time of the commission of the offense (method of commission, type of guilt, reasons and goals, the period of completion of the action, the degree of danger to society of the resulting consequences, etc.). In each case of committing a crime related to the performance of duties by position or the occupation of a certain activity, in accordance with Article 50 of the criminal code, the court, taking into account the nature of the crime committed, is obliged to resolve the issue of depriving the defendant of the right to hold certain positions or engage in specific activities. At the same time, the failure of the convicted person to hold a position at the time of sentencing or to engage in activities related to the crime committed does not prevent the application of this additional punishment.
The court concluded that as circumstances mitigating criminal liability and punishment, the convicted K. had a partial confession of guilt, had a minor child and, taking into account these circumstances, it was better not to impose an additional penalty on the deprivation of the right to hold certain positions or engage in certain activities. In accordance with Article 1 of the law of the Republic of Kazakhstan dated July 27, 2007" on education", it is established that a teacher is a person who has pedagogical or other professional education in the relevant profile and carries out professional activities of a teacher for training and education of students and (or) pupils, methodological support or organization of educational activities. Therefore, the conclusion of the court is illegal, because K. the fact that he committed this criminal offense directly, lightly, in order to earn money, in the field of education and using his official position (held the position of Deputy Director of the College for educational and industrial work), realizing that this act was illegal, is a gross violation of the high requirements set out in the rules of pedagogical ethics. At the same time, the court did not impose additional punishment, considering that despite the full proof of K.'s guilt, he partially admitted his guilt, in turn did not recognize the degree of public danger of the crime committed, an unlawful violation in relation to the victim.
Therefore, in the future, in accordance with the first, second and third parts of Article 50 of the criminal code, in order to prevent such offenses on the part of K., as an additional punishment, it is necessary to assign him the deprivation of the right to hold certain positions or engage in certain activities. At the same time, it should be borne in mind that K. The fact that the court of Appeal provided a copy of the dismissal from the official position held on the basis of the Order of the director of the College does not prevent him from appointing him to another job in such a position or engaging in a particular activity. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan changed the judicial acts of local courts against convicted K., who was sentenced to 3 (three) years of deprivation of the right to perform duties in educational organizations and engage in management activities. The protest of the prosecutor general of the Republic of Kazakhstan was satisfied.
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