Leadership of an organized criminal group and participation in the commission of economic smuggling

By the verdict of the Medeu District Court No. 2 of Almaty dated April 2, 2015: R., who had no previous criminal record, was sentenced under part 1 of Article 235 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 8 years in prison, with confiscation of property, under paragraph 2) of part 3 of Article 234 of the Criminal Code to 5 years in prison with confiscation property. On the basis of parts 1, 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment, 8 years of imprisonment with confiscation of property, with serving the sentence in a correctional colony of general regime, was finally appointed to a more severe one. he was found innocent and acquitted: - according to parts 2, 3 of Article 385 of the Criminal Code (as amended in 1997) for the absence of elements of a criminal offense in his actions; - according to paragraph 2) of part 3 of Article 234 of the Criminal Code for episodes of economic smuggling of TNF in containers No.SRSU 9055166 - in the name of U., No. SRSU 5283013 – in A.'s name is due to the absence of corpus delicti in his actions. Procedural costs in the amount of 132,545 tenge were collected from R. to the state revenue. B., who had no previous criminal record, was sentenced under paragraph 2) of Part 385 of the Criminal Code to 1 year in prison, under part 3 of Article 385 of the Criminal Code to a fine of 150 monthly calculation indices (hereinafter – MCI) in the amount of 259 650 tenge, under part 1 of Article 235 of the Criminal Code to 8 years in prison, with confiscation of property, under part 2 of Article 235 of the Criminal Code to 6 years of imprisonment, with confiscation of property, under paragraph 2) of part 3 of Article 234 of the Criminal Code to 5 years of imprisonment, with confiscation of property. In accordance with parts 1, 3 of Article 58 of the Criminal Code, for a combination of crimes, by absorbing a less severe punishment with a more severe punishment, he was finally sentenced to serve 8 years of imprisonment with confiscation of property, with serving his sentence in a correctional colony of a general regime. Procedural costs in the amount of KZT 259,776.25 were collected from B. to the state revenue. According to paragraph 2) of part 3 of Article 234 of the Criminal Code for episodes of contraband import of consumer goods (hereinafter referred to as TNP) in containers No. SRSU 9055166 - in the name of U., No. SRSU 5283013 - in the name of A. acquitted for lack of corpus delicti in his actions; Sh., who had no previous criminal record, was sentenced under part 2 of Article 235 of the Criminal Code to 5 years in prison with confiscation of property, under paragraph 2) of part 3 of Article 234 of the Criminal Code to 4 years in prison with confiscation of property.

Leadership of an organized criminal group and participation in the commission of economic smuggling

In accordance with parts 1, 3 of Article 58 of the Criminal Code, for a combination of crimes, by absorbing a less severe punishment, a more severe punishment was finally imposed to serve 5 years of imprisonment with confiscation of property, with serving the sentence in a correctional colony of a general regime. Collected from Sh. the state received procedural costs in the amount of 132,545 tenge; S., who had no previous criminal record, was sentenced under part 2 of Article 235 of the Criminal Code to 5 years in prison with confiscation of property, under paragraph 2) of part 3 of Article 234 of the Criminal Code to 4 years in prison with confiscation of property. In accordance with parts 1, 3 of Article 58 of the Criminal Code, for a combination of crimes, by absorbing a less severe punishment with a more severe one, he was finally sentenced to serve 5 years of imprisonment with confiscation of property, with serving his sentence in a correctional colony of general regime. According to paragraph 2) of part 3 of Article 234 of the Criminal Code for episodes of smuggling of TNF in containers No. ILSU 5417669, No. CAXU 9021960, No. NGHU 8688312 - in the name of R., car No. 212500244 - in the name of V., car No. 24376311 - in the name of M., car No. 26228999 - in the name of T., on trucks with state registration number plates (hereinafter – GRNZ) A704OWO and A236NCO - in the name of A., truck, GRNZ 5014 - in the name of S., trucks GRNZ04D4245 and 76AL479 - in the name of E., trucks 76DH024 and 76DH026 - in the name of K., containers no. IRSU 4884365 and no. XINU 8176506 - in the name of T., TCRU No. 9207670 - in the name of A., No. GESU 6523718 - in the name of A., No. TRIU 9171223 - in the name of N., No. PCIU 8574114 - in the name of E., No. IMTU 9031483 - in the name of K., No. DFSU 6362818 - in the name of U., No. PCIU 8144426 - in the name of U., No. TICU 8156710 and No. PCIU 8596581 - in the name of A., No. SRSU 9055166 - in the name of U. and No. SRSU 5283013 - in the name of A. acquitted for lack of corpus delicti in his actions. Procedural costs in the amount of 62,709 tenge were collected from S. to the state revenue.; H., who had no previous criminal record, was sentenced under part 2 of Article 235 of the Criminal Code to 5 years in prison with confiscation of property, under paragraph 2) of part 3 of Article 234 of the Criminal Code to 4 years in prison with confiscation of property. In accordance with parts 1, 3 of Article 58 of the Criminal Code, for a combination of crimes, by absorbing a less severe punishment with a more severe one, he was finally sentenced to serve 5 years of imprisonment with confiscation of property, with serving his sentence in a correctional colony of general regime.

According to paragraph 2) of part 3 of Article 234 of the Criminal Code for episodes of smuggling of TNF in containers No. ILSU 5417669, No. CAXU 9021960, No. NGHU 8688312 - in the name of R., car No. 212500244 - in the name of V., car No. 24376311 - in the name of M., car No. 26228999 - in the name of T., on trucks with GRNZ A704OWO and A236NCO - in the name of A., truck, GRNZ 5014 - in the name of S., trucks GRNZ 04D4245 and 76AL479 - in the name of E., trucks 76DH024 and 76DH026 - in the name of K., containers No. IRSU 4884365 and XINU 8176506 - in the name of T., TCRU 9207670 - in the name of A., no. GESU 6523718 - in the name of A., no. TRIU 9171223 - in the name of N., PCIU 8574114 in the name of E., IMTU 9031483 in the name of K., DFSU 6362818 in the name of U., PCIU 8144426 in the name of U., TICU 8156710 and PCIU 8596581 in the name of A., CRSU 9055166 in the name of U. and CRSU 5283013 - he was acquitted in the name of A. due to the absence of corpus delicti in his actions. Procedural costs in the amount of 62,709 tenge were collected from S. to the state revenue.; A., who had no previous criminal record, was sentenced under part 3 of Article 385 of the Criminal Code to a fine of 100 monthly calculation indices (hereinafter – MCI) in the amount of 173,100 tenge, under part 2 of Article 235 of the Criminal Code to 5 years in prison with confiscation of property, under paragraph 2) of part 3 of Article 234 of the Criminal Code to 4 years in prison. freedom with confiscation of property. In accordance with parts 1, 3 of Article 58 of the Criminal Code, for a combination of crimes, by absorbing a less severe punishment with a more severe one, he was finally sentenced to serve 5 years of imprisonment with confiscation of property, with serving his sentence in a correctional colony of general regime. Collected from A. to the state's income, procedural costs in the amount of 26,795.50 tenge; U., who had no previous criminal record, was sentenced under part 5 of Article 28, paragraph 2) of part 3 of Article 235 to 5 years of imprisonment while serving his sentence in a correctional colony of general regime. He was acquitted under paragraph 2) of part 3 of Article 234 of the Criminal Code for episodes of committing economic smuggling of TNF in containers No. SRSU 9055166 - in the name of U., No. SRSU 5283013 - in the name of A., as well as under part 2 of Article 235 of the Criminal Code for the absence of corpus delicti in his actions. Procedural costs in the amount of 38,985.50 tenge were collected from U. to the state revenue. The verdict regarding the civil claim filed by the prosecutor of the city of Almaty recognized the right to file it in civil proceedings. By the verdict of the court, R. was found guilty of leading an organized criminal group and participating in it while committing economic smuggling with other convicts: B., S., Sh., H., A., U., repeatedly, on a large scale, that is, in moving goods across the customs border of the Customs Union with the fraudulent use of documents, as well as in repeated forgery and the use of official documents. By the decision of the Judicial Board for Criminal Cases of the Almaty City Court dated August 13, 2015, the verdict of the court remained unchanged.

By the cassation decision of the Judicial Board for Criminal Cases of the Almaty City Court dated October 26, 2015, these judicial acts remained unchanged. The same verdict convicted B., Sh., S., Kh. and E., B., V., T. and E., in respect of which petitions for the review of judicial acts in cassation have not been filed. In the petition, the convicted R. and his defenders, lawyers V. and Sh., disagreeing with the judicial acts, point out the illegality of R.'s conviction. according to the episodes of smuggling consumer goods in containers No. VSCO 5390669, No. CRXU 9063461, No. FCIU 8088960 from the Islamic Republic of Iran, which arrived from the UAE and were delivered to the address of LLP "N". Arguments are made about the substitution of inventory items that were in the specified containers during the period of illegal retention by DBEKP employees in the city of Almaty, by persons responsible for ensuring their safety, for which customs payments and taxes were then improperly calculated on April 18, 2014. The principal amount was accrued for allegedly undeclared used pneumatic tires (hereinafter referred to as used tires) in the amount of 1,434 pieces, for which the customs value was 7,381,853 tenge, and fines and penalties totaling 2,856,845 tenge. At the same time, they refer to the conclusions of the customs inspection act No. 6/4 dated May 3, 2013, as part of a commission of employees of state bodies of South Kazakhstan Region, where only 44 pcs were identified. car tires, as well as the fact that a criminal case was initiated on this fact under part 1 of Article 209 of the Criminal Code, terminated on the basis of paragraph 2) of part 1 of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC). It is believed that the verdict against R. on these containers is based on assumptions, without sufficient evidence, and is subject to cancellation due to the absence of corpus delicti in his actions. In respect of B., Sh., S., Kh. and E., the case was considered in full in accordance with the procedure provided for in part 14 of Article 494 of the CPC. It follows from the case file that the cargo in container No. VSCO 5390669 crossed the border of Turkmenistan on May 5, 2013, and then on May 8, 2013, to the Republic of Uzbekistan. The cargo in container No. CRXU 9063461 crossed the border of Turkmenistan on April 17, 2013, and the border of the Republic of Uzbekistan on April 20, 2013. The cargo in container No. FCIU 8088960 crossed the border of Turkmenistan on April 24, 2013, and the border of the Republic of Uzbekistan on April 29, 2013. Based on the accompanying documents, the goods were transported across the customs border of the Customs Union to Saryagash Shopping Center in South Kazakhstan region in compliance with the necessary customs procedures and proceeded to their destination: dead end 310, Terminal-2007 warehouse, Aksenger station, Almaty region. According to the verdict, on April 18, 2014, during a customs inspection by DTC officers in the Almaty region, the fact of smuggling containers No. VSCO 5390669, No. CRXU 9063461, No. FCIU 8088960 with consumer goods into the territory of the Republic of Kazakhstan using forged shipping documents was revealed (hereinafter referred to as – TNP) 56 items, with a declared customs value of 47,139 US dollars according to transit declarations No. 39855509/ 100513/0018860, No. 39855509/130513/0000313 and No. 39855507/230513/0020544, from the Islamic Republic of Iran, actually arrived from the United Arab Emirates and received by LLP "N". Instead of 56 items of TNP, 18 items of goods were found that were not listed in the transit customs declaration and shipping documents. According to the conclusion of the UTD DTK for the Almaty region, the total customs value of undeclared goods amounted to 54,319 US dollars, which is equivalent to 8,200,052 tenge, the amount of customs duties, fees and taxes payable amounted to 3,374,238 tenge.

Leadership of an organized criminal group and participation in the commission of economic smuggling

As can be seen from the case file, the above containers arrived in the Republic of Kazakhstan in April-May 2013. The smuggling of TNF was established in November 2014. Meanwhile, on November 7, 2013, during the inspection and unloading of goods from container No. CRXU 9063461, it was revealed that among them were car wheels - 44 pieces and wheels - 43 pieces (87 pieces in total). The customs inspection report dated November 8, 2013, which describes and specifies the names of goods in container no. CRXU 9063461, also specifies metal automobile discs - 87 pieces. However, in the act dated April 18, 2014, other undeclared goods were found in containers No.VSCO 5390669, No.CRXU 9063461, No. FCIU 8088960: used pneumatic tires in the amount of 1,434 pieces, weighing 15,774 kg, a rear car door, a metal car roof, HP ink cartridge for a copier, UPS power supply, taillights, household equipment, spray gun, accessories for household appliances, irrigation hose, monitor, children's T-shirt, tops for infants, children's jeans, children's dress, children's turtleneck. The customs valuation of the displaced goods is determined in accordance with the rules for determining the customs value of goods approved by Articles 39-45 of the EAEU Customs Code (hereinafter – TC), taking into account the country of origin, name, weight (quantity), and product code. In the case of customs valuation in accordance with Articles 41, 42, 45 of the Customs Code, the lowest customs value of identical homogeneous goods is used. When applying methods for determining the customs value based on the transaction value of identical or similar goods, the customs value of goods previously determined by comparing the transaction price with imported goods is used as the basis, that is, without adjusting the customs value. A specialist's conclusion is an official document submitted in writing, drawn up in accordance with the requirements of part 3 of Article 117 of the CPC, reflecting the content of the study and conclusions on the issues raised by the specialist, the person conducting the criminal proceedings or the parties. Meanwhile, an employee of the customs service, M., based on the results of the study, provided a document called "Explanations" without drawing up the required conclusion, with calculation methods given in it, based only on the latest inspection report dated April 18, 2014, without taking into account the previous ones. Neither the pre-trial investigation authorities nor the court, when assessing the damage caused by this episode, in violation of the criminal procedure legislation, did not take into account or analyze information about the various quantities and types of contraband goods according to the above-mentioned customs inspection acts, as well as the lack of information on checking the presence of previous seals on containers, limiting themselves to M. Moreover, the petition provides arguments on the results of the customs inspection act No. 6/4 of the above-mentioned 3 containers, conducted on May 3, 2013 by a commission composed of employees of state bodies of the South Kazakhstan Region, which, in addition to the discrepancy in the names of goods, indicates used tires in the amount of 44 pieces. On this fact, on May 25, 2013, a criminal case was initiated by the SBEKP in South Kazakhstan Region under part 1 of Article 209 of the Criminal Code. According to the response to the lawyer's request submitted by the State Institution "RTU KPSIS of the General Prosecutor's Office of the Republic of Kazakhstan", on March 31, 2015, a decision was made to terminate the criminal case in accordance with paragraph 2) of part 1 of Article 35 of the CPC.

At the same time, there are materials in the case file No. 202 dated December 20, 2013, which contain information about the receipt of operational information about these three containers with goods that do not correspond to those declared in the customs declaration. In the same place, the decisions on the extension of the review period state that there is insufficient data indicating signs of a crime under Article 209 of the Criminal Code. The above is confirmed by the materials of the supervisory proceedings on the course of the pre-trial investigation into the facts of economic smuggling, including the episode of container No.CRXU 9063461, requested from the Regional Transport Department of the Committee on Legal Statistics and Special Accounts of the Prosecutor General's Office during the consideration of this cassation petition. In violation of the requirements of the Criminal Procedure Law and paragraphs 18 and 19 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On the court verdict", the defense version of this episode has not been verified at all. The conviction is based only on contradictory evidence, which does not meet the criteria of validity and sufficiency. When R. was charged with criminal episodes, an analysis of the evidence for each of them was not given. The verdict does not reflect the list of declared goods in containers No. VSCO 5390669, No. FCIU 8088960, where No. CRXU 9063461, their value is for comparison with the actually imported goods and determining the amount of damage caused by smuggling in this episode. In addition, the unjustified conviction of R., B., Sh., S., Kh., E. on these facts led to an increase in the size of the civil claim, the right to satisfaction of which follows from the verdict. Thus, during sentencing, the court committed significant violations of the criminal procedure law, which affected the outcome of the case, violated the principles of legality and presumption of innocence, and the requirements of the law for evaluating evidence. Collectively, the violations committed influenced the decision on the guilt or innocence of the above-mentioned persons in this episode, and on the scope of the convicted person's charges. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court amended the judicial acts of the local courts in respect of R., B., Sh., S., H., E. According to the episodes of smuggling consumer goods totaling 8,200,052 tenge in containers No. VSCO 5390669, No. CRXU 9063461, No. FCIU 8088960 from the Islamic Republic of Iran, which arrived from the UAE and were delivered to N LLP, and in this part the case was dismissed due to the absence of a criminal offense in their actions. In the rest of the judicial acts, the petitions of the convicted R., the defense lawyers V. and Sh. were left unchanged. satisfied. 

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