Legality and validity of a judicial act

By the verdict of the Turksib District Court of Almaty dated May 15, 2019: K. was sentenced under paragraphs 4), 5) of part 2 of Article 234 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 1 year and 6 months of restriction of liberty with the establishment of probation control. Contraband items - undeclared goods in the amount of 661 items with an indication of the serial number, quantity (pieces), net weight (kg), customs value for a total amount of 1,475,138,714.09 tenge, stored at SVH "K", converted into state revenue. Physical evidence - vehicles located at the K LLP warehouse, in the amount of 17 pieces, were released from arrest and transferred to their rightful owners. By a decree of the Turksib District Court of Almaty, dated May 15, 2019, it was decided to move the goods placed in 17 cargo vehicles and 16 containers located on the territory of the K LLP warehouse to the L LLP warehouse located at 141 Angarsk Street, Almaty, under the supervision of bailiffs Turksib District Court of Almaty. L LLP is responsible for ensuring the safety and integrity of the above-mentioned contraband items until the entry into force of judicial acts. LLP "K" and LLP "A" are responsible for ensuring unhindered access to the above-mentioned vehicles and containers. In the submission, the Chairman of the Supreme Court raises the issue of cassation review of the said court decision in respect of convicted K. due to the existence of grounds provided for in paragraph 2) part 3 of Article 484, paragraphs 1), 3) of part 2 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC). The said resolution of the Turksib District Court of Almaty dated May 15, 2019 affects state interests, violates uniformity in the interpretation and application of legal norms by courts, and grossly violates the requirements of legislation.

Legality and validity of a judicial act

According to article 344 of the CPC, on all issues resolved by the court during the main trial, the court issues rulings that are subject to announcement at a court hearing. Judicial acts rendered in the consultation room are subject to announcement upon the court's exit from the consultation room, and the judicial act is attached to the case file. The decision of the Turksib District Court of Almaty dated May 15, 2019 on the issue of the movement of contraband items was signed by a judge and posted in IP "T" on May 24, 2020, but is missing from the case file. It indicates its verdict in the main trial, however, according to the audio recording at the court session, it was not announced. The above is a gross violation by the court of the requirement of article 344 of the CPC. Based on part 3 of Article 11 of the CPC, the jurisdiction of the court, the limits of its jurisdiction, and the procedure for conducting criminal proceedings are determined by law and cannot be arbitrarily changed. In accordance with paragraphs 2), 6) of Article 401 of the CPC, decisions on the issues of material evidence, cancellation, and preservation of measures to ensure confiscation must be contained in the operative part of the sentence. Based on the circumstances of the case, on the day of sentencing, the court of first instance issued a judicial act in the form of a ruling, by which it actually changed the verdict: it moved contraband goods from the territory of CBH LLP "A" to CBH LLP "L". This ruling contradicts the operative part of the court's verdict, which has led to the non-enforcement of the verdict regarding the confiscation of contraband goods to date. In such circumstances, the cassation board considers that the court grossly violated the norm of Article 401 of the CPC. This decision affects the state interests, since the court of first instance, by its decision of May 15, 2019, actually changing the verdict, exceeded the limits of its competence, exercising the functions of the appellate and cassation instances. According to article 471 of the CPC, the decision of the court of first instance enters into force and is enforced after the expiration of the time limit for appealing or filing a motion by the prosecutor, or in the case of filing a private complaint or filing a motion by the prosecutor for consideration of the case by a higher court. A court ruling that is not subject to appeal, review at the request of a prosecutor, or appeal shall enter into force and be enforced immediately upon its issuance. The resolution of the Turksib District Court of Almaty dated May 15, 2019 contains an explanation on its appeal within 15 days from the date of its proclamation. At the same time, it was not disclosed to any of the interested parties, nor was it sent for execution in accordance with the established procedure. It was handed over to the bailiff by the judge before it entered into legal force. Thus, the court grossly violated the procedure for applying the decision for execution provided for in article 471 of the CPC. By virtue of article 12 of the CPC, everyone has the right to judicial protection of their rights and freedoms. The reason for the court's adoption of the revised resolution on the movement of contraband goods was its presence from December 14, 2017 to May 2019 on the territory of A LLP in the open air, which led to its partial unusability, the threat of loss and damage to the seized cargo, which is subject to state revenue. In this regard, before the entry into force of the judicial act, it became necessary to move the cargo to a warehouse with ventilation devices and enclosed spaces.

Legality and validity of a judicial act

In support of the decision, the court referred to the fact that "M" LLP and "L" LLP had signed a sublease agreement dated March 26, 2019 No. 20 for the further storage of goods in "L" LLP, located at 141 Angarsk Street, Almaty. However, the named sublease agreement is missing from the file. There is no information in the case file about the court's clarification of the opinion of its representatives or their consent to the storage of contraband goods or their notification of the transfer of goods to storage when making a decision on the transfer of goods to L LLP. Thus, the court also grossly violated the rights of LLP "L", which, without proof of its consent, is charged with the duty of storing and ensuring the safety of contraband goods. Neither the case file nor IP "T" contains information about sending a copy of this resolution to L LLP or anyone else for execution, as well as instructing bailiffs to participate in the transfer of goods. Based on the provisions of the Law "On Enforcement Proceedings and the Status of Bailiffs", articles 471 and 472 of the CPC, judicial acts are enforced by sending writ of execution to bailiffs. The issues of execution of court orders are not attributed to the powers of the bailiff.

In accordance with article 2 of the Law "On Bailiffs", at the time of the issuance of the said court decision in 2019, the tasks of bailiffs were: maintaining public order in the courtroom during the court session, as well as during the execution of enforcement actions by bailiffs; monitoring the execution of non-custodial sentences; assisting the court in carrying out procedural actions; ensuring the protection of court buildings, the protection of judges and other participants in the process, as well as the protection of bailiffs and persons involved in enforcement actions during the commission of these actions; assisting bailiffs in the enforcement of enforcement documents of courts and other bodies. Thus, the court order must be sent to the bailiff for execution, which has not been fulfilled. The court's instruction in the resolution dated May 15, 2019 on the movement of goods reads as follows: "under the supervision of bailiffs of the Turksib District Court of Almaty" is a gross violation of the requirements of Articles 471 and 472 of the CPC, the Law "On Enforcement Proceedings and the Status of Bailiffs", the Law "On Bailiffs". According to part 4 of Article 11 of the CPC, decisions of a court that conducted criminal proceedings, exceeded its authority or otherwise violated the principles of criminal procedure provided for in this Code are illegal and subject to cancellation. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court overturned the decision of the court of first instance in respect of K. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied. 

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