Presumption of innocence - a guilty verdict cannot be based on assumptions and must be supported by a sufficient body of reliable evidence.
By the verdict of the specialized inter–district Juvenile Court of Almaty dated June 26, 2018: D., who had no previous convictions, was sentenced to 5 years of probation under paragraphs 1), 12) of part 2 of Article 135 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) with the application of parts 2, 4 of Article 55, Article 63 of the Criminal Code, with the establishment of probation control for the entire term of the sentence. By the verdict of the court, D. was found guilty of selling her minor child, who is in a helpless state, committed by a group of people by prior agreement. The case was not considered on appeal. In the submission, the Chairman of the Supreme Court raises the issue of cassation review of the verdict against D. According to part 1 of Article 397 of the CPC, the descriptive and motivational part of the conviction must contain a description of the criminal offense recognized by the court as proven, indicating the place, time, method of its commission, form of guilt, motives and consequences of the criminal offense. The court found that on July 20, 2016, D. gave birth to a male child in maternity hospital No. 1 in Almaty. The midwife J., having learned that D. She wants to give up the child, got to know her and offered not to keep the child, but to give it to a family in need of a child. At the same time, she promised to buy D. flights to Astana, and give money for a rented apartment. For this purpose, J. in a group of persons, in prior agreement with T., for the illegal receipt of the child and its further transfer for remuneration to O., took 200,000 tenge from the latter for D.'s expenses, who subsequently left the child to T. From the subjective side, the crime provided for in part 2 of Article 135 of the Criminal Code is characterized by the presence of direct intent.
Presumption of innocence - a guilty verdict cannot be based on assumptions and must be supported by a sufficient body of reliable evidence.
It follows from the case file that initially the intention to acquire a child arose from O., who made the specified request to Zh., They were the ones who tried to take possession of the child D. The court did not establish the intention to sell the child to D.. The absence of intent to sell the child is evidenced by the power of attorney in the case file, written by D., about leaving her son T. for the period of study. T. confirmed that the power of attorney was written in 2016 by D. before leaving for Astana and the child was left to her for a while, subsequently she illegally issued documents for the child. Child D. he stayed with T., as the latter refused to hand him over to O. Further, J. and O. began searching for another child, subsequently taking possession of the child M. The court's conclusions that J. D. offered to take the child and give it to a family that needs a child, and promised to buy her air tickets to Astana and give her money for a rented apartment, contradicting the testimony of the convicted D. D. showed that she left her child to T., who agreed to look after the child. She wrote a power of attorney for the child. There is no evidence in the case file to refute her testimony. It was established in court that the money in the amount of 200,000 tenge was received from O. by Zh. and T.
The court's conclusions that D. had unlawfully abandoned her newborn child, T., had not been interested in his fate for a long time, had not provided financial assistance for the maintenance of the child, were not covered by the objective side of the corpus delicti provided for in Article 135 of the Criminal Code. By virtue of the presumption of innocence and in accordance with Article 19, part 3 of Article 393 of the CPC, as well as paragraph 18 of the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On judicial verdict", a guilty verdict cannot be based on assumptions and must be supported by a sufficient body of reliable evidence. Irremediable doubts about the defendant's guilt, as well as doubts arising from the application of criminal and criminal procedure laws, are interpreted in his favor. These requirements of the law have not been fulfilled by the court, and the court's conclusions on proving D.'s guilt in committing the crime she is charged with are erroneous, since they are not supported by admissible evidence. The Judicial Board for Criminal Cases of the Supreme Court overturned the verdict of the court of first instance against D. and the criminal proceedings were terminated for lack of evidence of a crime. In accordance with the procedure provided for in Chapter 4 of the CPC, D.'s right to rehabilitation and compensation for damage caused by illegal actions of bodies conducting criminal proceedings was recognized. The submission of the Chairman of the Supreme Court was satisfied.
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