In connection with the cancellation of the arrest and the transfer of property to compensate the victim during the pre-trial investigation, the confiscation of property was canceled.
By the verdict of the specialized inter-district Criminal Court of Astana on June 9, 2016, S. was sentenced under paragraph 2 of part 4 of Article 189 of the Criminal Code to 8 months in prison with confiscation of property obtained by criminal means or acquired with funds obtained by criminal means, with life imprisonment for the right to hold financially responsible positions in government agencies and commercial organizations, with serving a sentence in a general regime penal colony. The following property of the convicted person was confiscated for state income: a land plot (garage) at 6/2-13 Republic Avenue in Astana; cars of the brand: ToyotaLandCruiser 200 2014, state number 233HUA01; ToyotaLandCruiser 200 VX 2009, state number 411BKA01; cash in the amount of 100,000 US dollars, 7,610,400 tenge, 12,014 US dollars and 12,935 euros. The personal property of S.'s spouse was confiscated for state revenue. – I.: ToyotaLandCruiser 200 cars produced in 2011, state number 118FXA01, Lexus RX350 brand produced in 2013, state number 606RBA01; property of S., namely– 100% stake in D LLP (D)., land plot No. 62G on Kabanbai Batyr Street in the city Astana, as well as V.'s property in the form of a 100% stake in "R" LLP. The same verdict convicted E., D., M., O., T., A., B., I., Sh., P., in respect of which judicial acts were not reviewed. By the verdict of the Court of S. He was found guilty of embezzlement and embezzlement, that is, theft of someone else's property entrusted to the perpetrator, by a group of persons by prior agreement, on an especially large scale. By the resolution of the Judicial Board for Criminal Cases of the Astana City Court dated August 11, 2016, the verdict of the court remained unchanged. Having studied the materials of the criminal case, the arguments of the petition and additions to it, having listened to the statement of the representative who asked to change judicial acts, the prosecutor who believed to cancel the court's decision regarding the confiscation of the land plot, the judicial board on criminal cases came to the following. The court's conclusions on the evidence of S.'s guilt in committing the incriminated acts under the circumstances set out in the verdict are based on evidence objectively examined and properly evaluated at the court session, correspond to the factual circumstances of the case and are not disputed in the petition.
In connection with the cancellation of the arrest and the transfer of property to compensate the victim during the pre-trial investigation, the confiscation of property was canceled.
The actions of the convicted person are correctly qualified by the court. The penalty was imposed in accordance with the requirements of the law. The arguments of the petition of JSC EXPO-2017 on the illegality and groundlessness of judicial acts regarding the priority of the execution of confiscation of property before the execution of a civil claim are not substantiated on the following grounds. Confiscation of property, according to article 48 of the Criminal Code, is one of the types of additional punishment. Taking into account the mercenary motive for committing crimes, as well as the fact that the sanctions of the acts incriminated to convicted persons provide for mandatory confiscation of property, the court of first instance reasonably applied the specified additional punishment to all convicted persons, recognizing that they had property obtained by criminal means or acquired with funds obtained by criminal means. The priority of execution of a sentence in terms of confiscation of property over a civil claim follows from the norms of the Criminal Procedure Code. According to article 390 of the CPC, when passing a sentence, the court resolves questions about the guilt of the person who committed the crime and the type of punishment that should be imposed on him, and only then – whether the civil claim is to be satisfied. The further fate of the confiscated property is regulated by the norms of the Penal Enforcement Legislation and consists in an inventory of the property, ensuring storage and transfer to the authorized state body. All costs of the above actions in accordance with Article 80 of the Criminal Code are subject to satisfaction at the expense of the confiscated property within the limits of funds received from its sale or further use. The procedure for the sale or further use of confiscated property is regulated by the "Rules for the Sale or Use of property seized on the basis of a court verdict in a criminal case regarding the confiscation of property or on the basis of a decision to transfer property to the State," as amended by Order No. 249 of the Minister of Finance of the Republic of Kazakhstan dated May 23, 2016. Claims, according to Article 167 of the CPC, are brought against the suspect, the defendant, and the damage caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by these persons in accordance with Articles 917, 921 of the Civil Code. Considering that as a result of the criminal actions of the perpetrators, material damage to EXPO-2017 JSC in the amount of 8,060,332,317 tenge was caused, the court made a reasoned decision to satisfy the claims. Thus, the court's verdict regarding the confiscation of property is lawful and justified. At the same time, the court, when passing sentence, made a mistake in deciding on the confiscation of property in the form of a land plot at the address: Astana, Kabanbai Batyr str., No. 62G, cadastral number 21:320:135:1891, belonging to the son of convict S. According to the materials of the criminal case in relation to this plot, the arrest was canceled by the decree of the deputy head of the department. The Investigative Department of the Anti-Corruption Service dated February 9, 2016, due to the transfer to the victim for damages during the pre-trial proceedings. It follows from the Ministry of Justice's certificate No. 6001-17-2-1-12\41 that the right holder of the specified land plot is currently EXPO-2017 JSC. Based on the above, the judicial Board of the Supreme Court for Criminal Cases amended the judicial acts of the local courts in respect of S. and reversed the decision to confiscate the land plot at the address: Astana, Kabanbai Batyr St. No. 62G, cadastral number 21:320:135:1891. The rest of the judicial acts against convicted S. remained unchanged. The petition of JSC EXPO-2017 was partially satisfied.
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