Procedural time limits for misconduct The criminal case was terminated due to missing the deadline for drawing up a report on a criminal offense
By the verdict of the Mendykarinsky District Court of Kostanay region dated January 8, 2019: B., previously convicted on April 15, 2013 under paragraph "a" of part 2 of Article 178 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 4 years of restriction of liberty, was sentenced to community service for a period of 5 hours under part 2 of Article 340 of the Criminal Code. By the verdict of the court, B. was found guilty of illegally felling trees belonging to the forest fund, causing material damage in the amount of 105 tenge (82 tiyn). The case was not considered on appeal. In the protest, the Prosecutor General points out that the violation of the norms of the criminal procedure law in the form of non-compliance with the deadlines for drawing up a protocol on a criminal offense led to the unlawful conviction of B., he asks to cancel the judicial acts and acquit B. for lack of evidence of a criminal offense. According to paragraph 1) of part 1 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the conviction of an innocent person is the basis for the cancellation of a sentence in cassation. There is such a basis for a cassation review of the verdict in this case. It was established from the materials of the criminal case that the pre-trial investigation body had drawn up and approved a criminal misconduct report against B. by the head of the Mendykarinsky district police department 11 days after the day (December 25, 2018) when suspect B. was identified and accepted by the environmental police inspector J. material for its production (December 14, 2018).
Procedural time limits for misconduct The criminal case was terminated due to missing the deadline for drawing up a report on a criminal offense
In article 526 of the CPC for this category of cases, the time limits for drawing up a criminal misconduct report against a suspect are fixed: immediately, if the suspect is identified; within 3 days, if necessary, to clarify the circumstances of the criminal offense, information about the person who committed it, his location; after receiving an expert examination – within a day; before the end of the year, then There is a statute of limitations on offenses for which the person who committed it has not been identified. In this case, the above-mentioned procedural deadlines have not been met. No expert examinations were conducted in the case. At the same time, two formal reports of the environmental police inspector Zh. are attached to the materials of the criminal case. dated December 20, 2018 and December 22, 2018, which stated that B. was absent from his place of residence in one case, and in the other, according to his cohabitant, he left the district. At the same time, the cohabitant's explanatory note is missing from the case file. In this case, it was necessary to appoint an inquiry and conduct a pre-trial investigation. According to the requirements of part 1 of Article 50 of the CPC, procedural actions committed by participants in a criminal offense after the expiration of the term are considered invalid. In accordance with part 4 of Article 112 of the CPC, factual data obtained in violation of the criminal procedure law is considered inadmissible as evidence and cannot be used as the basis of an accusation, as well as used to prove any circumstance specified in Article 113 of the CPC. However, the above requirements of the CPC were grossly violated by the court, since the protocol on criminal misconduct, along with other evidence obtained after the expiration of the protocol form of the pre-trial investigation, were unlawfully recognized as permissible and sufficient to convict B.
From the clarifications of paragraphs 4.19 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 4 "On certain issues of evaluating evidence in criminal cases", it follows that evidence is considered inadmissible in cases of violations of human and civil rights guaranteed by the Constitution of the Republic of Kazakhstan, establishing the circumstances specified in Article 112 of the CPC. If significant violations were committed during the preparation of the investigative report, it should be recognized as inadmissible evidence. The violations of the criminal procedure law committed by police officers in the present case, as well as the lack of proper control by the management, led to B. unlawfully avoiding criminal prosecution. Thus, the goal of restoring social justice has not been achieved, and the principle of the inevitability of punishment has been violated. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court overturned the verdict of the court of first instance. The proceedings in the case under part 2 of Article 340 of the Criminal Code were terminated due to the absence of elements of a criminal offense in his actions. In accordance with the procedure provided for in Chapter 4 of the CPC, B. was granted the right to rehabilitation and compensation for damage caused by illegal actions of the bodies conducting the criminal proceedings. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied.
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