Limitation periods, a person is released from criminal liability if 5 years have passed since the date of the commission of a moderate crime.
By the verdict of the Atyrau city Court No. 2 of Atyrau region dated May 23, 2018: K., who had no previous criminal record, was sentenced under paragraph "b" of part 4 of Article 311 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) (as amended in 1997) to 7 years in prison. Based on part 2 of Article 4 of the Law of the Republic of Kazakhstan "On Amnesty in connection with the twenty–fifth anniversary of Independence of the Republic of Kazakhstan" (hereinafter referred to as the Law), Kubegenov's unserved part of his sentence was reduced by 1 year and 9 months and finally 5 years and 3 months of imprisonment were assigned to serve his sentence in an institution of the medium-security penal system.. By the decision of the Judicial Board for Criminal Cases of Atyrau Regional Court dated July 3, 2018, the verdict was changed: K.'s actions They were reclassified to part 1 of Article 311 of the Criminal Code (as amended in 1997) and, as a result, 2 years of imprisonment were imposed. Based on article 3 of the Amnesty Law, it was replaced by 2 years of restriction of freedom with the establishment of probation control for this period. The rest of the verdict remains unchanged. By the Court of K. He was found guilty of being an official, a leading specialist of the Department of State control over the use and protection of land and legal support of the Territorial Land Inspectorate of the Agency of the Republic of Kazakhstan for Land Management in Atyrau region, on May 14, 2013 and June 26, 2013, he received a bribe from N. in the form of two land plots with a total value of 3 814,834 tenge.
Limitation periods, a person is released from criminal liability if 5 years have passed since the date of the commission of a moderate crime.
In the protest, the Prosecutor General of the Republic of Kazakhstan, without disputing the qualification and evidence of K.'s guilt, believes that the norms of the criminal law were incorrectly applied in the case. In accordance with paragraph "b" of part 1 of Article 69 of the Criminal Code (as amended in 1997), a person is released from criminal liability if five years have elapsed since the commission of a moderate crime. More than 5 years have passed since K. committed the crime and before the verdict came into force. Therefore, he asks to change the judicial acts and release K. from criminal liability in connection with the expiration of the statute of limitations. Having studied the materials of the criminal case, having heard the statement of Prosecutor B., who supported the arguments of protest, and the opinion of lawyer Zh., who believed that the judicial acts should be annulled and acquitted of K., the board considers that the judicial acts against K. should be amended on the following grounds. The court's conclusions on K.'s guilt Charges of committing a criminal offense are based on comprehensively, fully and objectively examined relevant and admissible evidence at a court hearing. Despite the non-recognition of K. his guilt is confirmed by the consistent testimony of N., convicted by the verdict of the Atyrau court No. 2 dated March 24, 2017 under paragraph "b" of part 4 of Article 177 of the Criminal Code (as amended in 1997), given by her during the pre-trial investigation and the main trial. In particular, from the testimony of N. It appears that in May 2013, the head of the land inspection department, K., called her and informed her that he was conducting an inspection on the instructions of the prosecutor's office, during which it was established that the land plot of 4.8 hectares of LLP "O" had been obtained illegally, therefore, the subsequent receipt of LLP "A" of this land plot was also illegal, in connection with which it will be withdrawn. However, he offered his help in resolving this issue and asked for $100,000. Upon learning that she did not have such funds, he asked for four plots of land in the Nursaya microdistrict, to which she informed him that she would be able to give him two plots of land.
To. He instructed her to register these plots in the name of Z., while he did not receive any money from her for the land plots. There is no doubt about the reliability of witness N.'s testimony, they are confirmed by the testimony of witness A., who, without being familiar with N., confirmed that regarding the acquisition of land, he had a conversation with K., who introduced himself as the owner of the land, received money for K.'s land, he also promised to change the purpose of the land, was present at the registration purchase and sale agreement, by submitting Z. as his relative, the protocols of confrontations, contracts for the purchase and sale of land plots dated May 14 and June 23, 2013, protocols of investigative actions, as well as resolutions on the legalization of materials of secret investigative actions and on conducting secret audio and video monitoring of a person or place, as well as inspection and listening to the phonogram of a conversation (transcripts) and collected in the case of other objective evidence. The circumstances stated in N.'s testimony are also confirmed by the testimony of the convicted person by the verdict of the above-mentioned court, S., that he learned from the convicted K. on the inspection of the purchase and sale agreement between LLP "A" and LLP "O" carried out by him on the instructions of the Prosecutor's Office and sending the inspection materials to the Prosecutor's Office. According to him, he had learned from N. about her granting K. a land plot. Transfer of two land plots to N. for the preparation of certificates on the absence of violations in the registration of land plots, LLP "O" is confirmed by transcripts of conversations between N. and S. The fact that K. received two land plots is confirmed by transcripts of conversations between N. and K. According to paragraph 8 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 8 "On judicial practice of considering certain corruption crimes" dated November 27, 2015, the subject of a bribe may be money, securities, tangible assets, the right to property, as well as the illegal provision of property-related services, including exemption from property obligations. The court reliably established that K., being an official, a leading specialist of the Department of state control over the use and protection of lands and legal support of the Territorial Land Inspectorate of the Agency of the Republic of Kazakhstan for Land Management in Atyrau region, received a bribe from N. in the form of two land plots worth 3,814,834 tenge.
There have been no significant violations of the norms of both substantive and procedural law during the investigation of a criminal case and its consideration in court, which entail the cancellation or amendment of judicial acts. K.'s actions under part 1 of Article 311 of the Criminal Code are qualified correctly. In this regard, the arguments of the convicted person's petition of innocence in the act charged against him are refuted by the above-mentioned evidence in the case, which reliably established that the convicted person, having personally agreed with N. on a bribe in the form of two land plots, issued them in the name of his acquaintance Z. Subsequently transferred to N. the land plots came into his possession, which he later sold and received money for them. At the same time, the courts made mistakes in applying the norms of the Criminal and Criminal Procedure Laws, which led to an incorrect resolution of the issue of K.'s release. from criminal liability in connection with the expiration of the statute of limitations. In accordance with article 5 of the Criminal Code, the criminality or punishability of an act is determined by the law in force at the time of the commission of this act. According to the requirements of paragraph 3 of Article 6 of the Criminal Code, a law that establishes the criminality or punishability of an act, increases responsibility or punishment, or otherwise worsens the situation of the person who committed this act has no retroactive effect. According to paragraph 9 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 15 "On judicial practice on the application of Article 6 of the Criminal Code of the Republic of Kazakhstan", courts should keep in mind that when applying the rules on retroactive force of the criminal law, selective application of norms improving the situation of a person is not allowed on the same issue, If a person is brought to criminal responsibility, both a new and an old criminal law is applied, but only the norm that will entail favorable legal consequences for him. The court of first instance, having established that K. had received a bribe totaling 3,814,834 tenge, concluded that there was a qualifying sign of "large-scale" in his actions, based on the note to Article 311 of the Criminal Code (as amended in 1997). The appellate instance, referring to paragraph 38 of Article 3 of the Criminal Code (as amended in 2014), where a large amount, according to Article 366 of the Criminal Code, should be understood as the amount of money, the value of securities, other property or benefits of a property nature, ranging from three thousand to ten thousand monthly calculation indices (MCI 2013 – 1,731 tenge x 3000 = 5,193,000 tenge), the actions of K. reclassified from paragraph (b) of part 4 of Article 311 of the Criminal Code (as amended in 1997) to part 1 of this article, since part 1 of Article 366 of the Criminal Code (as amended in 2014) aggravates the responsibility of the perpetrator in comparison with the law in force at the time of the commission of the crime.
Therefore, K. should be released. from criminal liability due to the expiration of the statute of limitations. 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 K. and, applying paragraph "b" of part 1 of Article 69 of the Criminal Code (as amended in 1997), released him from criminal liability due to the expiration of the statute of limitations. The rest of the judicial acts remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied, the petition of the convicted person is partially satisfied.
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