Since the material damage caused to the victim was not significant damage, the criminal case was terminated due to the absence of the corpus delicti in the actions of the convicted person
By the verdict of the Turkestan City Court of South Kazakhstan region dated March 17, 2017, A. was previously convicted, sentenced to 2 years of imprisonment with confiscation of property under Part 2 of Article 361 of the criminal code, deprivation of the right to engage in civil service for life. Released from serving the main sentence in accordance with the requirements of Paragraph 1 of Article 2, Paragraph 3 of Article 7 of the law of the Republic of Kazakhstan dated December 13, 2016" on amnesty in connection with the twenty – fifth anniversary of independence of the Republic of Kazakhstan " (hereinafter referred to as the law on Amnesty). By the court verdict A. As the head of the Turkestan city state institution "Department of employment and social programs", being an official authorized to perform state functions, he was found guilty of causing significant harm to his rights and legitimate interests, taking 115,000 tenge of money from D., the head of the social assistance sector of the department headed by him, using his official powers on the grounds that a commission comes to the department in order to The case was not considered on appeal. In accordance with the requirements of Part 1 of Article 340 of the CPC, the main court session is held only in relation to the defendant and only within the limits of his prosecution submitted to the court. In accordance with paragraph 5 of the normative Resolution No. 19 of August 15, 2002" on the judicial verdict of the Supreme Court of the Republic of Kazakhstan", the court issues a guilty verdict only if it unconditionally determines the occurrence of a crime, its commission by the defendant, his guilt in committing a crime, the guilt of which is confirmed by evidence collected in compliance with the requirements of the law.
The criminal prosecution body differentiated the actions of the convicted A. from Part 2 of Article 361 of the criminal code and charged D. with material damage in the amount of 115,000 tenge, as a result of which significant damage to his rights and legitimate interests occurred. And he was not charged with causing significant harm to the rights and legitimate interests of organizations or otherwise to the interests of society or the state protected by law by the actions of A. Judging by the documents of the criminal case, the convicted A. As an official authorized to perform state functions, holding the position of head of the Turkestan city state institution "Department of employment and social programs", using his official powers, taking advantage of himself and causing harm to other people, on the grounds that a commission comes to the department in order to contradict the interests of the service, the trusted employee of the department headed by him is the head of the sector of targeted social assistance K. by his actions, the head of the social assistance sector, having received 115,000 tenge of money from D., causing significant damage to his rights and legitimate interests, committed a criminal offense specified in Part 2 of Article 361 of the criminal code. According to the testimony of the witness K., the victim D., that the guilt of the convicted A. gave the task to collect money from the employees of the Department under which he was headed, A. I am fully supported by a video recording of the conversation that took place between the two of the victim D., The Protocols of confrontation, receipt of evidence, the conclusions of the forensic examination, as well as other evidence collected in the case. However, the court of first instance, correctly indicating that the actions of A. caused material damage to D. in the amount of 115,000 tenge, as a result of which significant damage to his rights and legitimate interests occurred, in the descriptive and motivational part of the sentence, went beyond the limits of the charge that his actions caused other significant damage to the rights and legitimate interests of organizations or the interests protected by law of society or the state. The assessment by the court of the hazard effect on the charge against A. does not meet the requirements of Part 3 of Article 14 of the criminal code, i.e., causing material significant damage to the rights and legitimate interests of citizens is recognized as causing significant damage. At the same time, according to the interpretation specified in Part 2 of Article 3 of the criminal code, the amount of damage exceeding the monthly calculation index by one hundred times is recognized as significant damage. The monthly calculation index for 2016 is approved in the amount of 2,121 tenge, and the hundred monthly calculation indices are 212,100 tenge. And the amount of damage to citizens from the actions of A., who was recognized by the court as a criminal offense for abuse of official powers, did not exceed one hundred times the monthly calculation index.
Material damage in the amount of 115,000 tenge caused by the actions of convicted A. to the victim D. is not significant damage. At the same time, during the consideration of the documents attached to the case, it is noted that only 15,000 tenge of the 115,000 tenge received from the scene of the incident belongs to D., and the remaining 100,000 tenge was provided to him by the criminal prosecution authority. In this context, the actions of convicted A. caused material damage to the victim D. in the amount of only 15,000 tenge. Even if, as indicated in the verdict, it is calculated that material damage in the amount of 115,000 tenge was caused to D. from the actions of the convicted A., It is not significant damage. Consequently, the court's conclusion that the actions of convicted A. contain the corpus delicti specified in Part 2 of Article 361 of the criminal code is not supported by a sufficient set of evidence. This is because A. was not charged by the criminal prosecution authority for otherwise significant damage caused to the rights and legitimate interests of organizations or the interests of society or the state protected by law. In accordance with paragraph 2) of Part 1 of Article 35 of the Criminal Code, a criminal case is subject to termination if there is no composition of a criminal offense in the act. Since it is proved that the actions of convicted A. do not contain the composition of a criminal offense, he must be brought to disciplinary responsibility, and not to criminal liability. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan annulled the verdict of the court of first instance against A. convicted by Part 2 of Article 361 of the criminal code, and the criminal case was terminated due to the absence in the actions of A. of the composition of the criminal offense provided for by Part 2 of Article 361 of the criminal code. The prosecutor general's protest was satisfied.
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