He was found guilty of fraud, that is, embezzlement of funds on an especially large scale, committed by deception and abuse of trust, by a group of persons by prior agreement.
By the verdict of the court No. 2 of the city of Ust-Kamenogorsk, East Kazakhstan region, dated December 06, 2016, Zh. He was sentenced under paragraph "b" of part 4 of Article 177 of the Criminal Code to 6 years of imprisonment with the application of Article 63 of the Criminal Code on probation for 3 years, with the establishment of probation control and the imposition of certain duties. The same verdict convicted G., in respect of whom the petition was not received. The claims of the victim P. were partially satisfied, with the convicted Zh. in favor of the victim P. 100,000 tenge was collected for expenses incurred for the services of a representative, and compensation for material damage was refused. By the verdict of the court of J. He was found guilty of fraud, that is, of embezzlement of funds belonging to P. on an especially large scale, committed by deception and abuse of trust, by a group of persons by prior agreement, by the decision of the judicial board for Criminal Cases of the East Kazakhstan Regional Court of January 25, 2017, the verdict was upheld. Having studied the materials of the criminal case, discussed the arguments of the petition, having heard the victim P., her representative S. who supported the arguments of the petition, lawyer K., in the interests of convicted Zh. objected to the arguments of the injured party, the conclusion of the prosecutor, who believed the petition to be satisfied, the judicial board considers that judicial acts against Zh. are subject to change in terms of the imposed punishment and civil action. The court's conclusions on the proven guilt of convicted Zh. The charges against him, under the circumstances set out in the verdict, are based on evidence comprehensively, fully and objectively examined at the court session, correspond to the actual circumstances of the case and are not disputed by anyone. The evidence confirming the convict's guilt has been obtained in accordance with the procedure established by the Criminal Procedure Law, is reliable, acceptable and collectively sufficient to resolve the criminal case. The verdict gives them a proper assessment. The court's actions of the convicted Zh. according to paragraph "b" of part 4 of Article 177 of the Criminal Code, they are qualified correctly. At the same time, the punishment imposed by the court on convicted Zh. It does not correspond to the severity of the criminal offense and the personality of the convicted person. The arguments of victim P. about disagreement with the imposed punishment deserve attention.
In accordance with the provisions of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated June 25, 2015 "On certain issues of criminal punishment", courts must take into account the nature and degree of public danger of the crime, the identity of the perpetrator, including his behavior before and after the commission of the crime, circumstances mitigating and aggravating responsibility and punishment, and also, the impact of the imposed punishment on the correction of the convicted person and on the conditions of his life and family. The judicial authorities have not complied with these requirements of the law. When applying Article 63 of the Criminal Code, the Court did not take into account that J. During the pre-trial investigation and the judicial investigation, P. did not admit his guilt in committing fraud against P., did not repent of what he had done, did not take any measures to compensate for the damage committed by J. A criminal offense is classified as serious, which in itself indicates the degree of public danger of the act. In addition, the court did not take into account the active role of the convicted person in the commission of the crime, who initiated the transfer of funds to P. to your e-wallet and to cash them out in the amount of USD 29,467. In such circumstances, the imposition of a suspended sentence on a convicted person does not meet the requirements of Article 52 of the Criminal Code, the above-mentioned regulatory decree, is unfair due to excessive leniency. The Judicial Board, taking into account the public danger of the crime committed, the specific circumstances of the case and the personality of the convicted person, concluded that there were no grounds for a suspended sentence for J., and the need to impose a sanction for the alleged crime with confiscation of property, established by the legislator, provided as a mandatory additional punishment that corresponds to the purpose of the punishment aimed at correcting and re-educating the convicted person and preventing him from committing new crimes.. In addition, the arguments of the victim P. are substantiated. the court's incorrect resolution of a civil claim. According to part 1 of Article 168 of the CPC, when considering a civil claim filed in a criminal case, the grounds, conditions, scope and method of compensation for damage are determined in accordance with the norms of civil, labor and other legislation. By virtue of Part 1 of Article 917 of the Civil Code, damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full. In accordance with paragraph 15 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005 No. 1 "On consideration of a civil claim in criminal proceedings", damage caused by theft of property is reimbursed to the victim, taking into account the prices prevailing on the day of the decision on its compensation. Similar requirements are contained in paragraph 20 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision", according to which, in the case of a claim for recovery of a sum of money in a foreign currency, the court is obliged in the reasoning part of the decision to provide calculations for the transfer of foreign currency in tenge at the rate set by the National Bank of the Republic of Kazakhstan, on the day of the decision. During the examination of the case, the court reliably established that 34,000 US dollars had been stolen from P. as a result of fraudulent actions by Zh. together with G.. Victim P. filed a civil claim for compensation of material damage, indicating the amount in US dollars. The amount of material damage in the amount of KZT 6,000,000 was reimbursed to the convicts of G. before sentencing. The court of first instance, when resolving a civil claim, guided by Article 127 of the Civil Code, mistakenly concluded that the damage caused to the victim in foreign currency should be converted into tenge at the exchange rate at the time of the damage and considered that the convicted G. fully compensated the damage. The Court of Appeal upheld the verdict in this part, referring to Article 127 of the Civil Code, and stated that the procedure and conditions for settlements in foreign currency in the territory of the Republic of Kazakhstan are determined by the legislation of the Republic of Kazakhstan. However, according to the case file, victim P. handed over US dollars to the convicts, and subsequently the money was stolen in dollars by the perpetrators. According to paragraph 4 of Article 127 of the Civil Code, settlement in foreign currency in the territory of the Republic of Kazakhstan is not prohibited. The court, refusing to satisfy the victim's civil claim, incorrectly indicated that this circumstance does not prevent her from further applying for civil proceedings. In addition, it follows from the case file that P. filed a claim for compensation for moral damage. However, the court of first instance did not take any decision on the specified claims of the victim. The Court of Appeal also ignored P.'s arguments in this regard. The cited violations of the law as a result of deprivation and restriction of the victim's legally guaranteed rights, non-compliance with the judicial procedure prevented the court from comprehensively, fully and objectively investigating the circumstances of the case and influenced the court's decision regarding the civil claim. In such circumstances, judicial acts regarding the refusal to satisfy the civil claim of the victim P. are subject to cancellation with the referral of the case for a new hearing to the court of appeal in a different composition. In the case of a new review, it is necessary to resolve the civil claim of P. in accordance with the requirements of the criminal procedure law, a regulatory decree, to investigate the grounds of a civil claim, the type and amount of damage caused, the amount of damage compensated by G., to provide an opportunity for the parties to exercise their rights to prove their position. Based on the above, the judicial board of the Supreme Court for Criminal Cases amended the judicial acts of local courts in respect of Zh., abolished the application of Article 63 of the Criminal Code to him, assigning 5 years of imprisonment under paragraph "b" of part 4 of Article 177 of the Criminal Code with confiscation of property obtained by criminal means or acquired with funds obtained by criminal means, with serving punishments in a general regime penal colony. The time spent in custody from the moment of his detention from July 18, 2016 to December 6, 2016 was counted towards the term of punishment, calculating the time served from the moment of detention. In the part of the civil claim, the judicial acts were canceled, the criminal case in this part was sent for a new judicial review to the court of appeal in a different composition. The rest of the judicial acts remained unchanged. The petition of the victim P. is satisfied.
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