Found guilty of intentional concealment of a crime from registration
By the verdict of the Makat District Court of Atyrau region dated December 20, 2019: E., U., K., not previously convicted, each was acquitted under Paragraph 2) of part three of Article 433 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code). By the decision of the judicial board for criminal cases of the Atyrau Regional Court of March 13, 2020, the sentence was canceled, by the appeal verdict of the judicial board for criminal cases of the Atyrau Regional Court of March 13, 2020, SH., U., K. were found guilty of committing a criminal offense provided for by Paragraph 2) of part three of Article 433 of the criminal code. Each of them is sentenced to a life ban on holding positions in the civil service, judicial activity, local self-government bodies, the National Bank of the Republic of Kazakhstan and its departments, state organizations and subjects of the quasi-public sector and restriction of freedom for 3 years. By the court verdict Sh., U., K. a group of persons who, being authorized officials, have been found guilty of deliberately hiding a report of a criminal offense from registration of a crime of moderate severity by deception, seduction and other illegal actions, by preliminary conspiracy. In his submission, the chairman of the Supreme Court indicated that the additional punishment was incorrectly imposed on SH., U., K. and asked to reduce the term of the additional punishment. A judicial act adopted in accordance with the second part of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) is the basis for Cassation review of judicial acts specified in parts three and four of Article 484 of the CPC in case of violation by the courts of uniformity in the interpretation and application of legal norms. By a court verdict, Sh., U., K. committed a crime while being authorized officials.
Found guilty of intentional concealment of a crime from registration
In accordance with paragraph 26) of the third part of the criminal code, it is specified that an official is a person who performs the functions of a representative of power on a permanent, temporary or special authority or performs organizational and administrative or administrative functions in state bodies, local self-government bodies, as well as in the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan. The actions provided for by Paragraph 2) of the third part of Article 433 of the criminal code are not included in the number of corruption crimes and when imposing additional penalties on them, the requirements of the first part of Article 50 of the Criminal Code must be applied. And, according to the first part of Article 50 of the criminal code, deprivation of the right to hold a certain position or engage in a certain activity consists in a ban on holding certain positions in the civil service, local self-government bodies, financial organizations, or engaging in certain professional or other activities. That is, it is wrong for the court to impose additional punishment on convicted persons on the basis of part two of Article 50 of the criminal code and is subject to cancellation.
At the same time, the disposition of Paragraph 2) of the third part of Article 433 of the Criminal Code establishes an additional punishment-deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years. In the motivational part of the appeal sentence, it is indicated that in compliance with the requirements of the material norm, it is enough to establish an additional punishment for convicted persons – 3 years. However, in the resolution part of the sentence, the specified additional term of punishment is established for life deprivation, and the criminal law is incorrectly applied. The judicial board, taking into account the circumstances of the case, concluded that the additional punishment assigned to the convicted persons Sh., U., K. specified in the submission of the chairman of the Supreme Court of the Republic of Kazakhstan should be canceled and a new additional punishment should be imposed in accordance with the requirements of part one of Article 50 of the criminal code. The judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan changed the verdict of the Judicial Board of appeal against convicted persons Sh., U., K., that is, the additional punishment in the form of a lifelong ban on holding positions in the civil service, judicial activity, local self-government bodies, the National Bank of the Republic of Kazakhstan and its departments, state organizations and subjects of the quasi-public sector, assigned to them by Paragraph 2) of part three of Article 433 of the criminal code, was canceled. In accordance with paragraph 2) of part three of Article 433 of the Criminal Code, an additional penalty in the form of deprivation of the position of a law enforcement officer, as well as the right to engage in activities related to organizational and administrative or administrative and economic functions in state bodies and local self-government bodies for a period of 3 years was imposed on SH., U., K. The rest of the sentence was left unchanged. The proposal of the chairman of the Supreme Court of the Republic of Kazakhstan was satisfied.
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