Giving a bribe to an investigator for a positive decision on the fact of fraud

By the verdict of court No. 2 of the Almaty district of Nur-Sultan dated February 25, 2020: M., who had no previous convictions, was sentenced under part 1 of Article 367 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to a fine of ten times the amount of a bribe – 1,000,000 tenge with life imprisonment for the right to hold public office, judges, in local government bodies, the National Bank of the Republic of Kazakhstan and its departments, government organizations and quasi-public sector entities. Collected from M. The compulsory payment to the Victims Compensation Fund in the amount of 15 monthly calculation indices is 37,875 tenge. The fate of the material evidence in the case is resolved in accordance with the procedure provided for in Article 118 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC). By the verdict of the court, M. was found guilty of paying a bribe to an investigator for a positive decision on the case that was being investigated against her for fraud. By the decision of the Judicial Board for criminal Cases of the Nur-Sultan City Court dated May 6, 2020, the verdict remained unchanged. In the protest, the Prosecutor General of the Republic of Kazakhstan, without disputing the qualifications, evidence of guilt of convicted M. and the main punishment imposed on her, indicates that judicial acts are subject to change due to incorrect application of the criminal law when imposing additional punishment. He requests that the judicial acts be amended and that additional punishment be imposed on M. in accordance with the criminal law in force at the time of her commission of the criminal offense. The court found that K., an investigator of the investigative department of the Yesil district Police Department of the Nur-Sultan City Police Department, was in charge of the criminal case against M. according to paragraph 3) of part 3 of Article 190 of the Criminal Code, upon the collective appeal of 12 victims, on December 8, 2019, he interrogated her in the status of a witness entitled to defense, during which the latter offered him a bribe in return for giving her additional time to reconcile with the victims, that is, extending the term of the pre-trial investigation in the case, that she was refused and the legal consequences of giving a bribe were explained to her.

Giving a bribe to an investigator for a positive decision on the fact of fraud

However, on December 25, 2019, M., being at the address: Nursultan city, B.Momyshuly Ave., 14-210, out of mercenary motives, wanting the onset of socially dangerous consequences, expressed in bribing an official, through the application "Kaspi.kz "I transferred my cell phone to Investigator K.'s bank card, which was attached to his cell phone number., as a bribe of 100,000 tenge for a positive solution to the issue in terms of providing time for reconciliation with the victims. The court's conclusions about M.'s guilt In addition to her confessions, the charges are based on evidence comprehensively and fully examined in court, corresponding to the factual circumstances of the case. In accordance with article 125 of the CPC, the court gave each of the examined evidence a correct legal assessment in terms of relevance, admissibility and reliability based on the materials of the preliminary and judicial investigation. The court has correctly qualified M.'s actions under Part 1 of Article 367 of the Criminal Code. The type and amount of the basic punishment imposed on M. complies with the requirements of article 52 of the Criminal Code. At the same time, when imposing additional punishment on M., the court violated the norms of the criminal law, which, in accordance with the requirements of paragraph 5) of part 1 of Article 485 of the CPC, is the basis for a cassation review of judicial acts that have entered into force in this case. By virtue of article 5 of the Criminal Code, the criminality and punishability of an act are determined by the law in force at the time of the commission of this act. It has been established from the materials of the criminal case that the crime of M. committed on December 25, 2019, and the new version of part 2 of Article 50 of the Criminal Code, according to which the range of positions of bodies and organizations subject to a lifetime ban has been expanded, was amended by the Law of the Republic of Kazakhstan dated December 27, 2019 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on improving criminal, criminal procedural legislation and strengthening the protection of individual rights" (hereinafter referred to as the Law). This Law, which increases the additional punishment, worsens M.'s situation, since it deprives her of the right to hold positions in "quasi-public sector entities" for life. In this regard, the court should have imposed an additional sentence on her, taking into account the requirements of articles 5 and 6 of the Criminal Code, in accordance with the wording of part 2 of Article 50 of the Criminal Code, in force at the time of her commission of the crime.

Thus, the decision of the court of first instance to impose mandatory additional punishment on M. under the new version of part 2 of Article 50 of the Criminal Code and the decision of the court of appeal to leave the sentence unchanged in this part are illegal. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in relation to M. and abolished the additional punishment imposed on M., in the form of life imprisonment for the right to hold positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, the authorized body for regulation, control and supervision of the financial market and financial organizations, government organizations and quasi-public sector entities. Assigned to M. additional punishment in the form of life imprisonment of the right to hold positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, government organizations and organizations in whose authorized capital the state's share is more than fifty percent, including national management holdings, national holdings, national companies, national institutions development companies owned by the state and their subsidiaries, more than fifty percent of the voting shares (participation interests) of which belong to them, as well as in legal entities, more than fifty percent of the voting shares (participation interests) of which belong to these subsidiaries." The rest of the judicial acts against M. remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied. 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases