Fraud committed by a person authorized to perform government functions

By the verdict of the Panfilovsky District Court of the Almaty region dated August 15, 2013: D., convicted under paragraph "d" of part three of Article 177 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 3 years in prison with the application of Article 63 of the Criminal Code on probation for 2 years. By the decision of the appellate instance of the Almaty Regional Court of October 7, 2013, the verdict of the district court in respect of D.  It was amended with the repeal of the application of Article 63 of the Criminal Code and with his conviction under paragraph "d" of part three of Article 177 of the Criminal Code to 3 years in prison with confiscation of property while serving his sentence in a correctional colony of general regime, with deprivation of the right to hold public office in public service for up to 3 years. By the decision of the Cassation Board of the Almaty Regional Court of November 27, 2013, the decision of the Criminal Appeals Board of the Almaty Regional Court of October 7, 2013 remained unchanged.

 

By the verdict of the court, D. was found guilty of being a person authorized to perform state functions, by deception and abuse of trust, using his official position, he stole 300,000 tenge from L.. Having examined the materials of the criminal case at the request of the convicted person, the Supervisory Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan changed the judicial acts issued in the case on the following grounds. The court's conclusions about D.'s guilt in embezzlement by deception of funds in the amount of 300,000 tenge and abuse of trust L. based on the materials of the criminal case. At the same time, the qualification of the actions of a convicted person in the commission of this crime on the basis of "fraud committed by a person authorized to perform state functions, or a person equated to him, if it involves the use of his official position," is incorrect. So, in the case, it was established that in July 2013, L. appealed to the akim of the Penzhimsky rural district of D. with a request to provide a land plot. He was denied this because there were no vacant land plots on the territory of the district. After some time, L. again turned personally to D. with a request to help him obtain a land plot in the territory of the neighboring Koktalsky rural district. D. agreed to help him, but demanded to pay 300,000 tenge for the help. After receiving the stipulated money, on July 31, 2013, D. was detained by the criminal prosecution authorities. At the same time, the criminal prosecution authorities and the lower court recognized that D. had seized L.'s money using his official position as akim of the Penzhimsky rural district. However, the latest conclusions of the prosecution do not correspond to the materials of the criminal case and the law. Thus, within the meaning of the criminal law, a person's use of his official powers takes place only when his actions follow from his immediate rights and obligations established by law, regulation, charter, instruction or other normative act. Therefore, there is no objective side to a person's use of his official powers if a person seeks a decision using not his official powers, but, for example, personal connections and knowledge in various spheres of life. In criminal cases, when establishing the objective side of a crime, there should be no general references to the position of the subject, but it should be established which specific rights and obligations were criminally used by him.  In the same case, in particular, from the testimony of the convicted D., the victim L., the witness T., and the transcript of the conversation between D. and L., it appears that D. took possession of the victim's money without using his official position. D., whom he had become intimately acquainted with after the previous appeal, came home and asked for help in obtaining a land plot in the neighboring Koktalsky rural district by using D. not his official powers, but the existing friendly relations with the akim of this district.Moreover, according to the materials of the criminal case at the time of the commission of the crime, that is, during L.'s repeated appeal to D. personally with a request for help and the seizure of money by the convict on July 31, 2013, D. He did not perform the duties of akim, and from July 23 to August 6, 2013, in connection with the elections of rural akims, he was on leave without pay. The temporary performance of the duties of the akim of the Penzhimsky rural district at that time was entrusted to the chief specialist of the akim's office N. Under such circumstances, that is, in the absence of D.'s actions. The qualifying feature of the crime is "fraud committed by a person authorized to perform state functions, or a person equivalent to him, if it involves the use of his official position," the actions of the convicted person are subject to reclassification to the first part of Article 177 of the Criminal Code. When assigning a measure of punishment to a convicted person, the court of the supervisory instance took into account the nature and degree of public danger of the act committed by him and all other circumstances of the case. The Supervisory Judicial Board of the Supreme Court of the Republic of Kazakhstan has changed the judicial acts issued in the case against D. His actions from paragraph "d" of the third part of Article 177 of the Criminal Code were reclassified to the first part of Article 177 of the Criminal Code, according to which he was sentenced to 1 year in prison. The rest of the judicial acts remained unchanged. 

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