Illegal conviction of a person under art.218 part 1 of the Criminal Code of the Republic of Kazakhstan Legalization (laundering) of money and (or) other property obtained by criminal means

T. was sentenced under art.218 part 1 of the Criminal Code to 1 year of restriction of liberty with confiscation of property. Probation control has been established on the basis of Article 44 of the Criminal Code.

By the verdict of the court, T. was found guilty of legalizing money obtained by criminal means by purchasing a car on credit, worth 9 130,000 tenge, with an initial payment of 4,000,000 tenge and a monthly repayment of more than 200,000 tenge on this loan.

According to the bank statement, 657,733 tenge has been paid since the purchase of the car until August 2017.

The court indicated that the total amount of criminally obtained funds involved in the legal turnover amounted to 657,733 tenge.

The court's verdict was overturned by the cassation instance on the following grounds.

According to paragraph 19 of the NP of the Supreme Court No. 3 dated January 24, 2020, "On some issues of the application by courts of legislation in cases of criminal offenses in the field of economic activity," legalizing (laundering) money and (or) other property obtained by criminal means, in relation to Article 218 of the Criminal Code, one should understand the unloved disposal of money or other property obtained by committing a criminal offense., but only the involvement of their legal turnover through transactions in the form of conversion or transfer of property representing income from criminal offenses, or possession or use of such property, concealment or concealment of its true nature, source, place of origin, method of disposal, movement, rights to property or its accessories, if the person knows that such property represents income from criminal offenses, as well as mediation in the legalization of money and (or) other property obtained by criminal means.

A mandatory feature of the crime provided for in Article 218 of the Criminal Code is the purpose of financial transactions and transactions involving the lawful possession, use and disposal of specified funds or other property.

The pre-trial investigation body has not proven that the perpetrator has a similar purpose.

By itself, the fact of acquiring a car should be regarded as the disposal of funds obtained by criminal means, at one's discretion.

In such circumstances, T.'s actions lack the elements of a criminal offense provided for in art.218 part 1 of the Criminal Code.

 

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