Incitement to pay a bribe to an official
By the verdict of the district court No. 2 of the Saryarkinsky district of Nur-Sultan dated February 17, 2020: R., who had no previous criminal record, was sentenced under paragraphs 1), 2) of part 3 of Article 190 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 4 years in prison with life imprisonment for the right to hold certain positions or engage in certain activities. according to part 2 of Article 50 of the Criminal Code; - according to part 4 of Article 28, part 2 of Article 367 of the Criminal Code to 2 years of imprisonment with life imprisonment of the right to hold office or engage in certain activities in accordance with part 2 of Article 50 of the Criminal Code. Based on part 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment with a more severe one, he was finally sentenced to imprisonment for a period of 4 years with life imprisonment from holding 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 financial financial market and financial organizations, government organizations and quasi-public sector entities, with serving a sentence in institutions of the medium-security penal system. The time of R.'s detention from June 28, 2019 until the entry into force of the sentence was counted towards the term of punishment at the rate of one day for one and a half days. On the basis of part 1 of Article 49 of the Criminal Code, R. was deprived of the special rank of "police lieutenant colonel." material damage in the amount of 3,600,000 tenge was recovered in favor of B., a state duty in the amount of 36,000 tenge was paid to the state income, and a compulsory payment to the Fund to the victims in the amount of 48,100 tenge. By the verdict of the court, R. was found guilty of the fact that on September 21, 2018, in Nur-Sultan, through deception and abuse of trust, using his official position, by inciting victim B. to bribe an official in a significant amount, seized the victim's funds in a large amount in the amount of 3,300,000 tenge. By a resolution of the judicial board for criminal cases of the Nur-Sultan City Court dated April 9, 2020, the verdict of the court of first instance was changed with the cancellation of the satisfaction of the civil claim and the collection of state duty.
Incitement to pay a bribe to an official
The proceedings on the civil claim of the victim B. have been terminated in connection with full compensation for damage. In the protest, the Prosecutor General, without disputing the evidence of the convict's guilt and the correctness of the qualification of his actions, points out that the court of first instance incorrectly imposed additional punishment on convicted R. in the form of life imprisonment for holding positions in quasi-public sector entities, since at the time of the offense such punishment was not provided for by the Criminal Code. According to 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. Also, in accordance with part 3 of Article 6 of the Criminal Code, a law that establishes the criminality or punishability of an act, increases responsibility or punishment, or otherwise worsens the situation of the person who committed this act has no retroactive effect. R. a corruption offense has been committed, for which the imposition of additional punishment in the form of a lifetime ban on holding certain positions and engaging in certain activities is mandatory. 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 and criminal procedural legislation and strengthening the protection of individual rights" (hereinafter referred to as the Law), which entered into force on January 11, 2020, amended the wording of part 2 of Article 50 of the Criminal Code. The new version of this article provides for life imprisonment for holding 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, i.e. worsens the situation of the convicted person and cannot be applied to criminal offenses committed before its enactment. It follows from the materials of the criminal case that the crime of R. committed on September 21, 2018, that is, before the amendments to part 2 of Article 50 of the Criminal Code. Accordingly, the court should have imposed an additional penalty provided for in Article 50 of the Criminal Code as amended before the Law came into force, which provides for a lifetime ban on holding 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 percentages, including in national management holdings, national holdings, national companies, national development institutions, of which the state is a shareholder, 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.
Based on the above, the Judicial Board for Criminal Cases of the Supreme Court amended the judicial acts of local courts in relation to R. and abolished the additional punishment in the form of a lifetime ban on 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 institutions. organizations, government organizations, and quasi-public sector entities. To the convict R. An additional punishment was imposed in the form of a lifetime ban from holding 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. In the rest of the sentence and the resolution are left unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied.
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