Organization of illegal migration through the provision of services for Arrival and departure from abroad
By the verdict of the Court No. 2 of the city of Kyzylorda of the Kyzylorda region dated July 22, 2019: K. has not previously been convicted, the second part of Article 394 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code) established a restriction of freedom for 2 years and 6 months, the second part of Article 385 of the Criminal Code establishes a restriction of freedom for 1 year, the third part of Article 385 of the criminal code involved in public work for 160 hours. On the basis of the second part of Article 58 of the criminal code, he is sentenced to a final restriction of freedom of 2 years and 6 months by absorbing a less severe punishment into a more severe one. For the same period, probation control has been established and 100 hours of forced labor per year is involved in places determined by local executive bodies. In this sentence, T. and K. were convicted, petitions for the revision of judicial acts against them were not provided. By the court verdict K. he was found guilty of organizing illegal relocation by providing foreigners with forged documents, providing them with other services for illegal entry, departure and relocation to the territory of the Republic of Kazakhstan, as well as repeatedly passing a forged official document that gives rights or exempts them from duties, and using a deliberately forged document. By the decision of the Judicial Board of the Kyzylorda regional court for criminal cases dated September 3, 2019, the verdict was left unchanged. The Convicted K. the petition indicated that he did not agree with the adopted judicial acts, his actions included the provision of A. with an apostilled fake diploma and certificates of work experience, he did not use a knowingly fake document, therefore, the actions under Article 385 of the criminal code were unreasonably additional differentiated, he amended the judicial acts, asked to remove the second, third parts of Article 385 of the criminal code from his actions and consider the petition in his presence.
The guilt of the convicted K., In addition to his partially confessed testimony, is proved by the testimony of the convicted T. and K. In this case, given by witnesses A., M., protocols of confrontation, receipt of evidence, expert opinions, results of secret investigative actions. The criminal activity of the convicted K. was correctly differentiated by the second part of Article 394 of the criminal code and the second part of Article 385 of the criminal code. However, the court's conclusion that K. was engaged in the use of knowingly false documents is unfounded. During the main trial, The Witness A. in his testimony, he stated that he recognized K. and provided Chinese citizens represented by the list with a fake apostilled diploma and certificates of work experience, for which people sent the developed official fake document through the "e-licensing" system to the Kyzylorda Regional Department of coordination of employment and social programs. At the same time,the study of the audio and video recording of the trial showed that in court K. in 2017, his acquaintance A. after he said that he had an acquaintance in Bishkek at the same time, he could help him when he was contacted, he gave him a flash drive, which he received from A. through a taxi driver, then the documents related to the 86th person came, he gave them to A. and received a reward for it. He indicated that he did not open these documents, did not certify them and did not translate them, and then A. called 2 times, when only flashka was handed over to an acquaintance through a taxi driver, after which A. himself waited for the documents from the trip, he did not see the documents at all.
Organization of illegal migration through the provision of services for Arrival and departure from abroad
According to the evidence studied in court, K. provided Chinese citizens with a fake apostilled diploma and a certificate of work experience, and provided a translation of the document to A. Therefore, K. helped to develop the documents several times, but he himself did not use them. From such a point of view of the case, the composition of the criminal offense provided for in the third part of Article 385 of the criminal code is not reflected in the actions of K. Therefore, since the actions of K. do not contain the corpus delicti in the third part of Article 385 of the criminal code, the verdict of the court is changed, the part of the criminal code recognized guilty by the third part of Article 385 of the criminal code is canceled, and the case is subject to termination. At the same time, when imposing a sentence on the convicted person, the court unreasonably recognized that he committed a criminal offense by a group of persons by conspiracy as a circumstance aggravating his criminal liability and punishment. In accordance with the second part of Article 54 of the Criminal Code, if the circumstance specified in the first part of this article is provided for by the relevant article of the special part of this code as a sign of a criminal offense, it is not taken into account again as a circumstance aggravating liability and punishment. In accordance with paragraph 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4" on some issues of imposing criminal penalties", if the circumstances provided for in Article 53 or Article 54 of the Criminal Code of the Republic of Kazakhstan as one of the features qualifying the crime, the court may not recognize it as an aggravating circumstance of responsibility and punishment for committing this criminal offense. As found out in the case, the court of First Instance ruled that K. when imposing a sentence, he took into account his criminal liability and sincere repentance for his actions as mitigating circumstances, the presence of young children.
At the same time, as a circumstance aggravating criminal liability and punishment, a criminal offense was committed by a group of persons by preliminary conspiracy. "I don't know," he said, " but I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know. Therefore, as a circumstance aggravating the criminal liability and punishment of a convicted person, the commission of a criminal offense by a group of persons by preliminary conspiracy is not subject to re-consideration. Therefore, from the accusation of the convicted K., the qualifying sign "by a preliminary conspiracy of a group of people" is subject to exclusion. The Judicial Board of the Supreme Court of the Republic of Kazakhstan on criminal cases in relation to the convicted K. changed the judicial acts of local courts, annulled the part of the sentence that recognized him guilty by the third part of Article 385 of the criminal code, and the criminal case was terminated. From the charges of the convicted K., the qualification mark "by preliminary collusion of a group of people" was excluded, the rest of the judicial acts were left unchanged. The petition of the convicted K. was partially satisfied.
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