Found not guilty of committing a criminal offense

By the verdict of the Yenbekshinsky District Court of Shymkent dated March 12, 2020: N., who had no previous criminal record, was sentenced to 7 years in prison under paragraph 2) of part 4 of Article 189 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code). Based on paragraph 4) of part 1 of Article 4 of the Law of the Republic of Kazakhstan dated December 13, 2016 "On Amnesty in connection with the twenty-fifth anniversary of Independence of the Republic of Kazakhstan", the sentence was reduced by half and finally 3 years and 6 months of imprisonment were assigned to serve the sentence in an institution of the medium security penal system. Recovered from N. in favor of NGO "A" LLP (hereinafter referred to as LLP), material damage in the amount of 24,875,000 tenge and procedural costs in the amount of 35,487 tenge to the state revenue. By a decision of the judicial board for criminal Cases of the Shymkent City Court dated July 24, 2020, the conviction was overturned and a new acquittal was handed down. By the appeal verdict of the judicial board for criminal cases of the Shymkent City Court dated July 24, 2020, N. was found not guilty of committing a criminal offense under paragraph 2) part 4 of Article 189 of the Criminal Code, and was acquitted due to the absence of corpus delicti in her actions. The civil claim of LLP against N. in the amount of 25,972,224 tenge was dismissed. The procedural costs in the amount of 35,487 tenge, spent on conducting forensic examinations, were attributed to the state.

Found not guilty of committing a criminal offense

The acquitted N. is recognized as having the right to compensation for damage caused by her unlawful criminal prosecution. By the criminal prosecution body, N. was accused of being the chief accountant of the LLP, using her official position, for selfish reasons, in a group of persons in prior agreement with unidentified persons, during the period from June 1 to December 31, 2015, she embezzled funds of the LLP in the amount of 24 572 224 tenge, causing material damage in especially on a large scale. In order to conceal the fact of theft, a cashier's report was fictitiously issued for the period from January 1 to January 4, 2016, in which the cash balance in the amount of 394,444,93 tenge was indicated. In the protest, the Acting Prosecutor General requests that the decision and verdict of the appellate instance be annulled, while leaving the verdict of the court of first instance unchanged. Considers that the verdict of the court of first instance fully contains the examined evidence indicating the guilt of N. The court's conclusions about the absence of N.'s actions. The elements of a criminal offense are based on comprehensively and fully researched evidence, which has been properly evaluated by the court. In accordance with paragraph 6 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On judicial verdict", a guilty verdict is issued if the court has indisputably established that a crime has been committed, if this crime was committed by the defendant, he is guilty of its commission, his guilt is confirmed by evidence collected in compliance with the requirements of the law. Irremediable doubts about the defendant's guilt, based on paragraph 8 of part 3 of Article 77 of the Constitution of the Republic of Kazakhstan and parts 3, 4 of Article 19 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), are interpreted in his favor. Doubts arising from the application of criminal and criminal procedure laws must also be resolved, and a guilty verdict cannot be based on assumptions and must be supported by a sufficient body of acceptable and reliable evidence. The Judicial Board reasonably concluded that the evidence on which N.'s accusation was based was insufficient and unreliable to convict. So, N. pleaded not guilty to the charges and testified that she had worked as a chief accountant at the LLP since 2005, her powers included preparing an accounting report, providing information at the request of the LLP's founders and the head of the enterprise.

She did not have access to cash. Cash withdrawal and acceptance was carried out by cashier B. In the period from January 1, 2009 to May 31, 2016, she signed cash orders in the name of O., however, the funds that she or her husband S. received were issued by S.– B.'s sister. The basis for the payment of these funds was the contract of returnable investments and returnable financial assistance dated October 13, 2003. In October 2016, she was threatened out of her office and no one accepted her accounting documents. These arguments of N. have not been refuted. According to paragraph 3.11 of the Regulations on the Organization of the Accounting Service of the LLP (hereinafter referred to as the Regulation), the chief accountant ensures control and timely reflection on the accounting accounts of all business operations, the provision of operational information at the request of the management of the enterprise, its founders, as well as the preparation of accounting, tax and financial statements on time. According to clause 3.15 of the Regulation, the accountant-cashier bears full financial responsibility for the safety of all material assets accepted by him and the damage caused. Arguments of N. The fact that she did not have access to the cash, of which she is accused of embezzlement, is confirmed by the testimony of the accountant-cashier of B. LLP, who showed that she and no one else had access to the cash, including N., was involved in spending the cash. This fact is also confirmed by clause 3.12 of the Regulation, according to which, when signing bank and financial documents for the receipt or release of inventory, the signature of the chief accountant is not required. According to the agreement on full financial responsibility for N. She is responsible for the safety of the material assets entrusted to her. However, no tangible assets, including cash, were assigned or transferred to her for storage, processing, transportation and use. The pre-trial investigation of the case was initiated on the basis of a statement by the director of D. LLP, which stated that the theft was committed by drawing up a fictitious return on investment and return on financial assistance dated October 13, 2003, since the funds were co-founded by O. not entered. However, witness S. he denied these allegations and showed the court that the business was created by him and D. He is a participant in the LLP, but, unable to officially be a co–founder of the LLP, he issued a share to his spouse O., on whose behalf, by proxy, he deposited funds as returnable investments and returnable financial assistance under the Contract dated October 13, 2003.. In the period from 2009 to 2015, under a power of attorney on behalf of O., he received funds from the LLP as a refund of previously paid financial assistance. Witness T. confirmed in court that from 2003 to 2009, S. on behalf of O. He contributed the funds necessary for the purchase of medicines with full prepayment. As part of the financial assistance provided by the founder, an agreement was signed on October 13, 2003.

Found not guilty of committing a criminal offense

 The validity of the disputed agreement and the deposit of funds by S. on behalf of the participant of LLP - O. as financial assistance was confirmed by witness J., who testified that when checking the accounting records in the LLP, she saw receipts for cash receipts, according to which O. she contributed money to the working capital of the LLP, and recommended that they keep their originals. The receipt of funds from the LLP in the period from June 1 to December 31, 2015, in addition to the above-mentioned witness statements, is confirmed by the materials of the civil case. According to the statement of claim, Fr. On May 5, 2017, she applied to the specialized interdistrict economic court with demands to recover from the LLP the remaining debt under the return investment agreement as of May 31, 2016 in the amount of 7,955,000 tenge. A reconciliation report is attached to the claim, according to which O. received a return on her financial investment and financial assistance in the amount of 46,875,000 tenge from April 30, 2009 to January 15, 2016, with the balance amounting to 7,955,000 tenge. At the same time, for the period from June 4 to November 30, 2015, she received: June 4, 2015 – 14,475,000 tenge, August 24, 2015 – 3,000,000 tenge, November 20, 2015 – 4,000,000 tenge, November 30, 2015 – 2,000,000 tenge, January 15, 2016 – 1,400,000 tenge, a total of 24,875,000 tenge. In addition, the existence of the specified agreement is confirmed by its copy, notarized by a notary and which was challenged by representatives of the LLP in a civil case. However, by a decision of the judicial board for Civil Cases of the Turkestan Regional Court dated August 20, 2018, the decision of the specialized interdistrict economic court dated May 21, 2018 was overturned with the adoption of a new decision to dismiss the claim of LLP to O. for invalidation of the said agreement. In addition, the existence of a disputed agreement is confirmed by the conclusion of a specialist dated April 12, 2018 No. 59, according to which, according to the documents submitted by the founder of LLP - O., receipts of receipt and cash orders (originals), repayable investments in the amount of 5,000,000 tenge were made by O. since October 13, 2003; financial assistance in the amount of 51,475,000 tenge in the period from March 1, 2004 to February 27, 2007. According to the audit report dated February 16, 2018, conducted on the basis of documents and the accounting database 1C-8.2 from January 1, 2009, during 2015, 24,875,000 tenge was issued on cash orders. According to the conclusion of the forensic economic examination dated July 11, 2019 No. 1398, for the specified period, the cash inflow to the LLP amounted to 192,177,049 tenge, with the difference between the data on the documents submitted by the LLP and the cash reports in the amount of 291,936 tenge. The expense amounted to 167,634,924 tenge. The cash balance amounted to 24,935,569 tenge. At the same time, the research part of the conclusion states that the amount of 23,475,000 tenge paid by O. on cash orders reflected in the cash reports on the corresponding account No. 4177 is not included in the cash expenses. The specified cash orders were not taken into account due to their failure to submit to the study.

Pointing to the theft of cash from the LLP's cash desk, revealing their receipt and expenditure, the prosecution did not establish the actual cash balance in the LLP's cash desk, without determining which it is impossible to conclude the amount of the shortage. Thus, the circumstances of whether there was a shortage, whether there was a theft of cash, have not been objectively confirmed by anything. From the testimony of the expert of the Institute of Forensic Examinations in the city of Shymkent Zh. It can be seen that cash reports or cash register inserts, which are not primary accounting documents, were submitted for the study. The receipt of funds from June 1 to December 2015 was investigated based on the submitted Z-reports, bank statements and the issue raised. No cash expenditure orders were submitted for examination. According to paragraph 5) of part 1 of Article 112 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), factual data must be declared inadmissible as evidence if they were obtained in violation of the CPC requirements, which, by depriving or restricting the legally guaranteed rights of participants in the process or violating other rules of criminal procedure during the pre-trial investigation, influenced or could have influenced on the reliability of the factual data obtained, including with a significant violation of the procedure for the procedural action. Considering that the study of the ISE specialist for South Kazakhstan Region dated September 7, 2018, forensic economic examinations were conducted without analyzing the original accounting documents, that is, in violation of the procedure for its conduct, the conclusion of the ISE specialist for South Kazakhstan Region No. 151, the conclusion of the forensic economic examination No. 1418, the conclusion of the comprehensive forensic economic examination dated June 18, 2019 The year No. 1789 has been reasonably recognized as inadmissible evidence. Further, the cash order dated January 15, 2016 No. 0000000009 was attached to the materials of the criminal case on the basis of the protocol dated June 4, 2018 at M. According to part 1 of Article 254 of the CPC, the seizure is carried out by the person conducting the pre-trial investigation, according to a reasoned decision. According to part 4 of this article, excavation is carried out with the mandatory use of appropriate scientific and technical means. According to part 7 of the same article, before the start of the seizure, the person conducting the pre-trial investigation is required to submit a resolution on its production. During this investigative action, the above requirements of the CPC were grossly violated. The excavation was carried out without making a reasoned decision, scientific and technical means were not used. The act on the impossibility of attaching a photo to the seizure protocol, without numbering, is embedded between case sheets 109 and 110, and the seizure protocol itself does not reflect the use of these funds at all. These facts indicate that scientific and technical means were not used in the production of excavation. The seizure, according to the protocol dated June 4, 2018, was carried out in relation to the system unit, a hard disk with the 1C Accounting LLP program.

During the excavation of the Mine, a system unit with a hard disk was issued, as well as the original cash order dated January 15, 2016, No. 00000000009. However, the prosecution authorities did not find out where and how this warrant was found, as required by article 199 of the CPC. The acquitted N. testified in this part that she had indeed cancelled such an order, printed out, with an erroneous signature in the line "issued by the cashier", and put it in a stack of papers to use the back of the sheet as a draft. Her testimony in this part has not been refuted by anyone. The representative of the victim M. he showed that he had found this document on the chief accountant's desk, which partially confirms the testimony of N. Thus, the appellate instance reasonably concluded that the requirements of Article 112 of the CPC had been violated during the seizure, the existing cash order and the conclusions of forensic handwriting examinations on it were declared inadmissible as evidence. Further, according to N.'s testimony, in October 2016, D. and his entourage threatened and kicked her out of the office. These statements explain the absence of the acceptance certificate and the prosecution's arguments about the destruction of the original accounting documents for the purpose of theft are untenable. Thus, the court of appeal reasonably concluded that gross violations of the law, expressed in the unlawful presentation of charges of embezzlement by embezzlement of cash on an especially large scale, using official position, by prior agreement of a group of persons, entailed the unlawful bringing of N. to criminal responsibility. By virtue of part 2 of Article 8 of the CPC, the procedure established by law for criminal proceedings should provide protection from unjustified charges and convictions, unlawful restrictions on human and civil rights and freedoms, and in the case of unlawful charges or convictions of an innocent person, his immediate and complete rehabilitation, as well as contribute to strengthening law and order, preventing criminal offenses, and shaping the respect for the law.

Found not guilty of committing a criminal offense

In accordance with paragraph 2 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On the court verdict", the validity of the verdict means that it is based on evidence that has been collected in compliance with the requirements of the law and fully, objectively and comprehensively examined directly at the court session, analyzed and properly evaluated, and The court's conclusions are motivated. Under the established circumstances, N. was legitimately acquitted of the charges due to the absence of elements of a criminal offense in her actions. The protest arguments aimed at reassessing the available evidence, comprehensively examined and evaluated by the court in accordance with the law, are unfounded and cannot be satisfied. Based on the above, the judicial board of the Supreme Court for Criminal Cases upheld the decision and acquittal of the court of appeal. The protest of the Acting Prosecutor General of the Republic of Kazakhstan was left without satisfaction.

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