The acquittal of the court and the decision of the appellate instance remained unchanged, the protest of the Prosecutor General was not satisfied.
By the verdict of court No. 2 of Taraz, Zhambyl region, dated August 7, 2017, S., who had no previous criminal record, was found innocent of committing a criminal offense under part 1 of Article 307 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) (as amended in 1997) and acquitted due to the absence of elements of a criminal offense in the act. Court No. 2 of Taraz also issued a private resolution to the Prosecutor's Office of the Zhambyl region on the established significant violations of the requirements of the criminal procedure legislation committed during the pre-trial investigation. By the decision of the judicial Board for Criminal Cases of the Zhambyl Regional Court dated September 22, 2017, the verdict of the court remained unchanged. In the protest, the Prosecutor General points out that the judicial acts are illegal and subject to cancellation due to the inconsistency of the court's conclusions with the actual circumstances of the case, which led to the illegal acquittal of the defendant S. S. in 2012, he was appointed director of TZK LLP (hereinafter referred to as T LLP), in the authorized capital of which the state's share is 100%. The main objectives of the Partnership were to assist in the implementation of investment activities of interested legal entities on a consulting basis and to extract income from the proceeds from the sale of products, works and services. According to the agreement with NC SEC "T" JSC, T LLP has committed to provide services for the formation and use of the regional stabilization fund for food products within the framework of the budget program. On November 20, 2012, LLP "T" represented by S. An agreement was signed with Ts LLP on the supply of sugar in the amount of 1,000 tons at a price of 120 tenge per kilogram, including VAT, for a total amount of 120,000,000 tenge for the stabilization fund. Based on the established rules, T LLP, as a specialized organization, uses the stabilization fund by decision of the Akim of the region for commodity interventions.
On February 12, 2013, the Akim of Zhambyl region issued an order to conduct a commodity intervention of sugar in the amount of 100 tons at a fixed price of 130 tenge per kilogram. S., reliably knowing about the price of granulated sugar, using his official powers, contrary to the interests of the service, in order to extract benefits and advantages for other persons, implemented "IP "E" granulated sugar in the amount of 74,850 kg at a price of 125 tenge per kilogram, as a result of which the state suffered damage in the form of lost profits in the amount of 374,250 tenge. On February 27, 2013, Akim of Zhambyl region issued order No. 37-o on conducting a commodity intervention of granulated sugar in the amount of 200 tons at a price of 140 tenge per kilogram. c. in order to extract benefits and advantages for other persons, IP "E" sold granulated sugar in the amount of 190,000 kg at a price of 125 tenge per kilogram, As a result, the state suffered damage in the form of lost profits in the amount of 2,850,000 tenge. On May 23, 2013, the akim of Zhambyl region issued order No. 148-o on conducting a commodity intervention of granulated sugar in the amount of 700 tons at a price of 146 tenge per kilogram. in order to extract benefits and advantages for other individuals and organizations, B. sold granulated sugar in the amount of 15,000 kg at a price of 128 tenge per kilogram, as a result of which the state suffered damage in the form of lost profits in the amount of 270,000 tenge; 175 kg of granulated sugar at a price of 125 tenge per kilogram to the population of the region through its own stores, including as a result, the state suffered damage in the form of lost profits in the amount of 3675 tenge.; IP "E" granulated sugar in the amount of 535,150 kg at a price of 125 tenge per kilogram, as a result of which the state suffered damage in the form of lost profits in the amount of 11,238,150 tenge. As a result, the actions of the director of LLP "T" S. caused damage to the state in the form of lost profits totaling 14,736,075 tenge. Questioned at the hearing, S. testified that he had been acting as Director of T LLP since March 16, 2012. When making transactions with sugar, he did not use his official powers in the interests of other persons. Signed an agreement with "IP S" on the instructions of the deputy akim of the region I. According to the studied case materials, in November 2012, at the purchase price of 127 tenge per 1 kilogram of sugar recommended by the Commission, T LLP purchased sugar at a price of 120 tenge per 1 kilogram, saving 7,000,000 tenge on the transaction.
During the first half of the year, Akim of Zhambyl region issued three orders on sugar intervention from the stabilization fund at a fixed retail price from 130 to 146 tenge per kilogram. LLP "T" also sold sugar at prices from 125 to 128 tenge at wholesale prices. At the same time, as correctly reflected in the acquittal, the sugar was sold on pickup terms, from the warehouses of the sugar center, that is, the Partnership did not incur additional transportation and storage costs. He was charged with using official powers contrary to the interests of the service in order to extract benefits and advantages for himself and others, namely the interests of "IP S" or causing harm to other persons or organizations, which entailed a significant violation of the rights and legitimate interests of the state. Witness E. testified at the hearing that he is the official dealer of Ts LLP, the only major sugar producer in Kazakhstan, and his authority includes the distribution of goods across the country for small wholesale and retail trade. According to the dealer agreement, he has no right to take sugar for sale from other sources. He was asked for help in the implementation of LLP "T" sugar by the Deputy Akim of the region I. LLP "C" allowed to conclude an agreement with S., whom he had not previously known. I sold sugar to the stabilization fund at the same price as Ts LLP. That is, sugar was sold to them at the selling price of sugar from Ts LLP – 127 tenge per 1 kilogram. The testimony of E. The case materials are also confirmed, namely, reports on the sale of sugar by IP E., according to which in the 1st quarter of 2013 sugar was sold at 113.4 tenge per kilogram excluding VAT (127 tenge including VAT). According to the expert opinion No. 887 of the forensic commodity research dated June 28, 2017, the average market price of sugar in February 2013 was: wholesale – 126 tenge, retail – 132 tenge; in March, wholesale – 125.4 tenge, retail – 131 tenge; in May 2013, wholesale – 128.5 tenge, retail price – 134 tenge. The Court of First Instance came to the correct conclusion that even the retail price of sugar on the market was lower than recommended by the Commission, that sugar at its price would not have been sold and the issue of price stabilization would not have been resolved, but, on the contrary, would have led to its growth.
Thus, the testimony of the defendant S., E. has not been refuted by anyone, and the prosecution's arguments about using his official position to benefit "IP "E." have not been confirmed. In addition, the court hearing did not confirm the accusation of the materiality of the violation of the interests of the state, which refers to the actions of the director of T S. LLP, which caused damage to the state in the form of lost profits totaling 14,736,075 tenge. According to the case file, Government Decree No. 1280 of October 9, 2012 approved the Rules for the Formation and Use of regional stabilization funds for food products. LLP "T" has been designated as a specialized organization for the formation of a stabilization fund. According to paragraph 13 of the Rules, the organization returns the money used for the purchase to the budget. According to paragraph 18 of the same Rules, the protocol of the stabilization Fund commission indicates the list of goods, their volumes and fixed prices for them. At the same time, fixed prices for food products for procurement intervention are set by the decision of the commission at a level not higher than market prices. Commodity intervention, according to the modern economic dictionary, means the mass sale of a certain type of consumer goods in order to bring down excessive demand for them and prevent an increase in market prices. In other words, by creating stabilization funds and conducting commodity intervention in the food market, the state sets itself the task of stabilizing the market, rather than making a profit. Harm to the State should be specific, and not as a result of an alleged loss of benefits. Therefore, the accusation of causing harm to the state in the form of lost profits, based on the essence of the tasks of the stabilization fund, is unfounded. LLP "T", in turn, fulfilled its duties in full, the sums of money received for the purchase of sugar were returned to the state, while they made a profit, which corresponds to the charter. Thus, there is no indication for the composition of this criminal offense, namely, "causing significant harm to the interests of the state." The acquittal complies with the requirements of articles 394-396, 399-400 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), and the court has not committed any significant violations leading to its cancellation. No grounds have been established for the cancellation of the acquittal provided for in article 489 of the CPC. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court of the judicial acts of local courts in relation to S. I left it unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is not satisfied.
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