Receiving a bribe for patronage
By the verdict of the military court of the Akmola garrison dated October 15, 2018: D., who had no previous criminal record, was convicted under part 2 of Article 366 of the Criminal Code of the Republic of Kazakhstan (hereinafter – Criminal Code) to a fine in the amount of fifty times the amount of a bribe in the amount of 17,999 500 tenge, with life imprisonment for the right to hold positions in public service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, state organizations and organizations in the authorized capital of which the state's share is more than fifty percent, including in national management holdings, national holdings, national companies, national development institutions, of which the state is a shareholder, and their subsidiaries, more than fifty percent of the voting shares (participation interests) of which belong to them, as well as in legal entities, more than fifty percent of the voting shares (participation interests) of which belong to these subsidiaries. In accordance with part 1 of Article 49 of the Criminal Code, D. was deprived of the military rank of "lieutenant Colonel". By the verdict of the court, D. was found guilty of having, as an official, received a bribe in the form of property (cell phone) in a significant amount for facilitating, by virtue of his official position, the commission of an act in favor of the bribe giver and general patronage. By the decision of the Judicial Board for Criminal Cases of the Military Court of the Republic of Kazakhstan dated November 29, 2018, the court's verdict was changed, d. under part 2 of Article 366 of the Criminal Code, with the application of part 4 of Article 55 of the Criminal Code, a fine of ten times the amount of a bribe in the amount of 3,599,900 tenge was imposed. The rest of the verdict remains unchanged. In the petition, defender D., challenging the judicial acts, believes that during the consideration of the criminal case there was an incorrect application of the law, which led to the conviction of an innocent man. Certain investigative and secret actions were carried out in violation of the norms of the criminal procedure law, which entail the recognition of evidence as inadmissible. Requests to cancel judicial acts and terminate criminal proceedings. In addition to the petition, defender D. draws attention to the dismissal of the applicant S. for health reasons and the illegal receipt of monetary compensation. The court reasonably recognized D. guilty of committing the crime specified in the verdict, based on the evidence that is admissible, on the basis of which, having assessed them in their entirety, correctly established the factual circumstances of the case.
Receiving a bribe for patronage
The court's verdict was legitimately based on the testimony of S. and the results of secret investigative actions, revealing in detail the circumstances of the crime. The circumstances of the crime described in S.'s testimony are consistent, fully consistent with the testimony of the convicted person, witnesses U., I., the results of secret investigative actions and other evidence available in the case file, and therefore they were reasonably recognized by the court as reliable. At the same time, the court indicated the reasons for accepting some evidence and rejecting others. The arguments of the defender's petition are unfounded. Thus, the arguments of the petition about the provocative and inflammatory actions of S. and the criminal prosecution authorities are arbitrary and not based on any specific data. It can be seen from the case file that on May 25, 2018, S. applied to the DNBPC in Astana with a statement on the fact of D.'s extortion of a bribe in the form of a mobile phone. Within the meaning of the law, it is not considered a provocation of a bribe to conduct an operational search event provided for by law in connection with the verification of an application for extortion of a bribe. Recordings of conversations recorded as a result of secret investigative actions directly indicate that the convicted person has intent to commit criminal acts and there are no signs of provocation against him. As the court correctly pointed out in the verdict, D. voluntarily testified in the presence of a defense lawyer, without any pressure, personally signed the protocol, and subsequently repeatedly confirmed his testimony during other interrogations. In this regard, an incomplete explanation of the rights did not affect the reliability of the suspect's testimony, therefore, the protocol of his interrogation was reasonably used as evidence, and the arguments of the petition regarding the use of torture against the convicted person were not confirmed. In addition, D.'s defense was initially carried out in accordance with article 67 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), which provides for the mandatory participation of a defender in a criminal case, lawyer M. Subsequently, D. was additionally interrogated on June 12, 2018 with the participation of K.'s lawyers. both M. and, in essence, they did not deny the circumstances of receiving the phone from S.. Only on July 24, 2018, during additional interrogation as a suspect, the convict retracted his confession. His subsequent denial of these statements and his arguments about the pressure exerted on him were reasonably rejected by the court.
Receiving a bribe for patronage
At the same time, the reference in the petition to the court's decision to revoke lawyer M.'s license is untenable due to its cancellation by a higher court. The arguments set out in the petition of defense counsel D., according to which, before the confrontation, secret investigative actions were carried out between witness S. and suspect D. and they communicated with each other in the investigator's office, her arguments about the violation of the requirements of part 2 of Article 210 of the CPC were checked by the judicial authorities and they were given a proper assessment. By virtue of article 436 of the CPC, there were no significant violations of the criminal procedural law that affected the outcome of the case, including during the seizure of voice samples, seizure of the subject of a bribe and other investigative actions. The arguments of the petition for violation of the requirements of Articles 320, 321 of the CPC regarding the resolution of petitions during the preliminary hearing do not indicate a violation by the court of the convicted person's rights, since all petitions filed by the defense were the subject of consideration by the main trial. Thus, the court came to the correct conclusion about the proof of D.'s guilt. taking a bribe and his actions are correctly qualified under part 2 of Article 366 of the Criminal Code. D.'s punishment was imposed in accordance with the requirements of Article 52, part 4 of Article 55 of the Criminal Code, taking into account the nature and degree of public danger of the act, the presence of circumstances mitigating criminal liability and punishment. Based on the above, the judicial board for criminal Cases of the Supreme Court left the judicial acts of the local courts in respect of D. unchanged. The petition of D.'s defender was left without satisfaction.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
