Incorrect qualification of the article of the Criminal Code
K. was found guilty under Article 177, part 1 of the Criminal Code and released from criminal liability on the basis of Article 69, part 1, paragraph "b" of the Criminal Code, due to the expiration of the statute of limitations.
By a court order, K. was found guilty of committing fraud by providing a deliberately forged diploma and obtaining a military rank, causing damage in the amount of 120,489 tenge.
The decision was not reviewed on appeal.
The Court of Cassation changed the decision on the following grounds.
In accordance with paragraph 1 of the NP of the Supreme Court of June 29, 2017 No. 6 "On judicial practice in cases of fraud", it is mandatory for the perpetrator to have a selfish purpose, that is, the desire to unlawfully and gratuitously convert someone else's property into his own property.
K. did undergo military service in the period from 1998 to 2010. From the moment of conscription, having shown a conscientious attitude to his military duties, he worked his way up to the commander of a military unit, proved himself on the positive side and had repeated refinements.
In this case, K. He was awarded regular military ranks for a reason, and after the expiration of his term of service, he remained in his previous military rank.Thus, K. had every reason to be awarded higher military ranks, and the court did not establish any obstacles to this.
Under these circumstances, there is no mandatory sign of "gratuitousness" and K.'s actions cannot be qualified as fraud.
K.'s actions are subject to reclassification from Article 177, Part 1 of the Criminal Code to Article 385h.3 of the Criminal Code, and the criminal case is terminated on the basis of Article 71, part 1, paragraph 1 of the Criminal Code and, due to the expiration of the statute of limitations, exemption from criminal liability.
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