Legality and validity of the verdict The petitions of lawyers and convicts were left without satisfaction due to the legality and validity of judicial acts

By the verdict of the specialized interdistrict Criminal Court of the East Kazakhstan region dated November 02, 2017: M., who had no previous convictions, was released from criminal liability under part 3 of Article 28, part 3 of Article 222 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) on the basis of a note to Article 245 of the Criminal Code in connection with the voluntary payment of arrears taxes and (or) other mandatory payments to the budget, as well as penalties established by the legislation of the Republic of Kazakhstan; - sentenced under part 3 of Article 28, part 3 of Article 245 of the Criminal Code to 8 years in prison with deprivation of the right to hold positions in public authorities and management, as well as senior positions in non-governmental institutions and organizations for 3 years; under paragraph 1) of part 4 of Article 361 of the Criminal Code to 7 years in prison with confiscation of property criminally obtained, with life imprisonment for the right to hold positions in public authorities and management, as well as senior positions in non-governmental institutions and organizations; under part 3 of Article 262 of the Criminal Code, to 10 years in prison with confiscation of property obtained by criminal means. On the basis of part 3 of Article 58 of the Criminal Code, 10 years of imprisonment with confiscation of property obtained by criminal means, with life imprisonment for holding positions in public authorities and management, as well as senior positions in non-governmental institutions and organizations, were finally imposed by absorbing a less severe punishment with a more severe one. the institution of the maximum security penal system. The same verdict convicted D., H., T., S., K., A. and L., in respect of which the case is not being considered.

By a resolution of the Judicial Board for Criminal Cases of the East Kazakhstan Regional Court dated January 29, 2018, the verdict against M. was changed. It is excluded that his actions play a particularly active role in the commission of criminal offenses as a circumstance aggravating responsibility and punishment. The punishment imposed on M. under part 3 of Article 28, part 3 of Article 245 of the Criminal Code was reduced to 6 years of imprisonment with deprivation of the right to hold positions in public authorities and management, as well as senior positions in non-governmental institutions and organizations for a period of 3 years.; under paragraph 1) of part 4 of Article 361 of the Criminal Code, up to 5 years in prison with confiscation of property obtained by criminal means or acquired with funds obtained by criminal means, with life imprisonment for holding positions in public authorities and management; under part 3 of Article 262 of the Criminal Code, up to 8 years in prison with confiscation of property obtained by criminal means by way of or acquired with funds obtained by criminal means. On the basis of part 3 of Article 58 of the Criminal Code for a combination of criminal offenses by absorbing a less severe punishment with a more severe one. He was sentenced to 8 years in prison with confiscation of property obtained by criminal means or acquired with funds obtained by criminal means, with life imprisonment for the right to hold positions in public authorities and management. The rest of the sentence against M. remained unchanged. By the verdict of the court M. He was found guilty of organizing and directing a crime in the form of tax evasion from organizations by entering deliberately distorted income and expense data into declarations, using invoices without actually performing work, providing services and shipping goods, which resulted in tax evasion on an especially large scale. Also M. He was found guilty of using his official powers contrary to the interests of the civil service, in order to extract benefits and advantages for himself and others, which entailed grave consequences in the form of particularly large damage to the state, in the interests of a criminal group. In addition, M. was found guilty of creating and leading a criminal group using his official position. In the petition and its appendices, K.'s lawyer indicates that M. is innocent of the acts charged against him. The accusation is based on the testimony of interested parties who slandered it. Thus, H. testified in court that his testimony given during the investigation had been falsified by law enforcement officers. It also indicates a contradiction between the two expert examinations available in the case file and the inconsistency of the conclusion of the forensic economic examination. He believes that the court ignored the fact that, by the decisions of the economic courts that entered into force, all transactions made by pseudo-enterprises allegedly led by M. and their contractors for the sale of coal were recognized as fictitious, as well as the registration of all pseudo-enterprises was declared illegal due to the fact that they did not carry out business activities. He believes that M.'s actions can only constitute a crime under article 215 of the Criminal Code, which has been decriminalized. The court's conclusion that M. He was the organizer and head of an organized criminal group, was not motivated by anything and was based on assumptions. There is also no evidence against M. under paragraph 1) of part 4 of Article 361 of the Criminal Code. He asks M. to justify the absence of elements of criminal offenses in his actions, as well as to consider the possibility of applying part 4 of Article 55 of the Criminal Code. The court's conclusions about the proven guilt of convicted M. in committing illegal acts under the circumstances specified in the court verdict are correct and are based on the totality of evidence examined at the court session and received a reasonable assessment. The fault of M. It is confirmed by the testimony of I., Kh., witnesses P., Sh. and others, expert N., protocols of the confrontation between M. and I., where I. confirmed his testimony that M. was the organizer of the crimes and told the scheme of the crimes, protocols of procedural actions, physical evidence and other case materials. The court correctly established that in the period 2012-2015, M. organized and led a criminal group for tax evasion and invoicing activities without actually performing work, providing services and shipping goods. The total amount of material damage caused to the state by the actions of an organized criminal group led by M., in the form of unpaid VAT tax from the contractors of the enterprises amounted to 1,506,575,099 tenge, which is a particularly large amount.

The arguments of the lawyer indicated in the petition were the subject of consideration by previous judicial instances and were reasonably declared untenable. The lawyer did not provide any new arguments in the petition, nor did he indicate the existence of specific evidence calling into question the conclusions of the courts on M.'s guilt. Thus, M.'s actions under part 3 of Article 28, part 3 of Article 245, paragraph 1) of part 4 of Article 361, part 3 of Article 262 of the Criminal Code are correctly qualified. When determining the type and amount of punishment, M. The court was guided by the rules of Article 52 of the Criminal Code, took into account the nature and severity of the crimes committed, the identity of the perpetrator, his behavior before and after the commission of crimes. The court also took into account M.'s positive characterization and the fact that he had not previously been criminally responsible as circumstances mitigating criminal liability and punishment. In addition, the court reasonably took into account M.'s violation of the oath of a civil servant as a circumstance aggravating criminal liability and punishment. In such circumstances, taking into account the decision of the appellate judicial board to reduce the convicted person's sentence to 8 years in prison, the board does not consider the imposed punishment to be excessively harsh and finds no legitimate grounds for applying part 4 of Articles 55, 63 of the Criminal Code. Based on the above, the judicial board for criminal Cases of the Supreme Court upheld the judicial acts against M. The petition of K.'s lawyer was left without satisfaction. 

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