Lawyer in Almaty for criminal cases, termination for lack of evidence of a criminal offense
By the verdict of court No. 2Kyzylorda, Kyzylorda region, on April 10, 2017, Ye., who had no previous criminal record, was sentenced under part 1 of Article 130 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to a fine of 100 monthly calculation indices in the amount of 216,900 tenge. 100,000 tenge was recovered from E. in favor of P. as compensation for moral damage. By the verdict of the court, E. was found guilty of spreading deliberately false information discrediting the honor and dignity of P. and undermining his reputation. The verdict was upheld by the decision of the Judicial Board for Criminal Cases of the Kyzylorda Regional Court dated May 23, 2017. In the submission, the Chairman of the Supreme Court of the Republic of Kazakhstan indicates that the court's verdict is based on the testimony of private prosecutor P., witness B., and the conclusion of an internal audit, without their analysis and evaluation by the court. No evidence has been provided to confirm the existence of a direct intent to disseminate information known to be false, discrediting the honor and dignity of a private prosecutor, or undermining his reputation. Requests, in view of the violation of uniformity in the interpretation and application by the courts of the norms of law, to review judicial acts in relation to E.
Lawyer in Almaty for criminal cases, termination for lack of evidence of a criminal offense
In accordance with part 5 of article 14 of the International Covenant on Civil and Political Rights, adopted by resolution 2200A (XXI) of the UN General Assembly on December 16, 1966, everyone who is convicted of any crime has the right to have his conviction and sentence reviewed by a higher authority in accordance with the law. It follows from the clarifications of paragraph 2 of the Supreme Court's normative Resolution No. 19 of August 15, 2002 "On the court Verdict" that the verdict is based on evidence that was collected in compliance with the requirements of the law and directly at the court session, fully, objectively and comprehensively investigated, analyzed and properly evaluated. According to paragraph 3) of part 1 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), if an adopted judicial act violates uniformity in the interpretation and application of legal norms by courts, this is one of the grounds for reviewing judicial acts in cassation. Such grounds have been established in the case, and the court's conclusions about E.'s guilt in committing a criminal offense are unfounded on the following grounds. In accordance with article 124 of the CPC, the evidence collected in the case is subject to a comprehensive and objective examination. The study includes analyzing the evidence obtained, comparing it with other evidence, collecting additional evidence, and verifying the sources of evidence. These requirements of the Law on the rules for examining evidence by the courts were not properly complied with. As can be seen from the case file, P.'s initial application was submitted to the court on March 6, 2017, and then the court returned the application to remedy the deficiencies. Subsequently, P. provided an amended statement on the same date. However, there is no initial statement in the case file, there is only an amended version of the statement. In accordance with articles 375, 379 of the CPC, the descriptive part of the sentence must contain a description of the criminal act recognized by the court as proven, indicating the place, time, method of its commission, the form of guilt, motives and consequences of the crime. The court did not comply with these requirements of the CPC. E. was found guilty under part 1 of Article 130 of the Criminal Code, but there is no description of the criminal act in the verdict. The court has not established which actions of E. constitute a crime. Instead, the descriptive part of the verdict details the contents of the complaint of P. The verdict is based only on the testimony of the private prosecutor of the victim P., witness B., the conclusion of the internal audit of August 29, 2016, without analyzing and evaluating them. A photocopy of the above-mentioned internal audit report is attached to the case file, its original is missing. There is no information about verifying the authenticity of the copy of the report in the case file. In particular, the court disregarded and selectively assessed the testimony of witness B., who stated that he was well acquainted with P. as an employee of the Department of State Revenue for the Kyzylorda region (hereinafter referred to as the Department of State Revenue of the Kyzylorda region), and E. knows as the deputy head of work. When the declaration was being processed, calls and messages via the WhatsApp messenger were received from employees of the Kyzylorda region Department of Internal Affairs. Initially, the conversation was with Inspector S. about the declaration. S. said that now he could not answer anything, he would consult with the guys.
S. did not say anything about the need to resolve this issue financially. A message arrived on another phone via the WhatsApp messenger: "According to your declaration, 200 marrs," so they understood it accordingly. He does not remember the addressee, that is, from whom it came. He also had not personally heard about P.'s extortion of money from the company. The testimony of witness B. given in the verdict as evidence does not reflect when, by whom and where the illegal act was committed, what exactly it was expressed in and what is confirmed. The reasons for taking some evidence as a basis and refuting others are not given. According to the clarifications of paragraph 1 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 18, 1992 No. 6 "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities", courts should keep in mind that the dissemination of information discrediting the honor and dignity of a citizen or organization means their publication in publications, messages on radio, television, using other mass media, presentation in characteristics, public speeches, statements addressed to various organizations, to officials, or a message in another, including oral, form to several persons or at least one person. The communication of such information to only one person concerned cannot be recognized as its dissemination. Defamatory information is such untrue information that detracts from the honor and dignity of a citizen or organization in public opinion or the opinion of individual citizens from the point of view of compliance with laws, moral principles of society (for example, information about committing dishonest acts, misconduct in the workforce, in the family, information discrediting industrial and economic activities, reputation, etc. etc.). At the same time, demands for refutation of information containing relevant criticism of shortcomings in work, in a public place, in a team, or in everyday life cannot be considered justified.
A mandatory element of defamation is the dissemination of deliberately false information that shames another person about specific facts concerning the victim. The perpetrator must be aware of the deliberately false nature of the information disseminated by him, excluding a conscientious misconception about the reliability of this information. In this connection, these circumstances are subject to proof by the prosecution. The court found that the Department of Internal Affairs of the Kyzylorda region conducted an internal investigation into the application of E., according to the results of which the chief specialist S., the head of the customs post B. and the deputy head of the Department, A., were disciplined for the red tape and shortcomings they committed during the adoption of the declaration from E., which was confirmed. The court has not provided evidence confirming the existence of a direct intent to disseminate information that is deliberately false, discrediting the honor and dignity of a private prosecutor or undermining his reputation. Criminal liability for defamation occurs only if it is established that there is a mandatory element of this crime – the deliberate falsity of the information disseminated, that is, the person must knowingly know about the falsity of the information and have a direct intention to disseminate it. Thus, the charge under part 1 of Article 130 of the Criminal Code is based on evidence that was incorrectly assessed in court, which led to the unlawful conviction of E. Therefore, in the actions of E. There is no corpus delicti provided for in part 1 of Article 130 of the Criminal Code, and judicial acts in respect of it are subject to cancellation with the termination of proceedings on the basis of paragraph 2) of part 1 of Article 35 of the CPC. The adoption of such a decision, in accordance with articles 38 and 39 of the CPC, entails recognition of E.'s right to rehabilitation and compensation for damage caused by unlawful criminal prosecution, in accordance with the procedure established by law. Based on the above, the judicial Board for Criminal Cases of the Supreme Court annulled the judicial acts of the local courts against E., the criminal proceedings under part 1 of Article 130 of the Criminal Code were terminated for lack of evidence of a criminal offense. The right to rehabilitation and compensation for harm caused as a result of unlawful conviction has been recognized for E. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied.
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