The court of first instance took as the basis for the conviction, instead of recognizing as inadmissible evidence information that was not supported by factual facts obtained during the preliminary investigation in gross violation of the requirements of the law.
By the verdict of the court No. 2 of Atyrau city dated April 2, 2012: N., not previously convicted, sentenced to 4 years in prison under Part 3 of Article 327 of the criminal code, serving a sentence in a general-order correctional colony; H., not previously convicted, sentenced to 2 years in prison under Part 3 of Article 327 of the criminal code, serving a sentence in a general-order correctional colony. By the decision of the Appellate Judicial Board of Atyrau Regional Court dated June 6, 2012, the verdict was left unchanged, the Cassation judicial board left the verdict and the decision of the appellate instance unchanged. According to the verdict N. on August 2, 2010, an acquaintance who was going to fly to Astana asked U. to bring АҚШ 600,000 to an acquaintance who lived in Astana, A.. U. agreed to their request and flew away with the money placed in a blue passenger bag. After arriving in Astana, he gave the money to A. and informed H. about it by phone. Subsequently, N. and H. by collusion, committing illegal acts of intimidation and extortion that seriously harm the rights and legitimate interests of another person, accusing U. of not giving half of 600,000 US dollars-300,000 US dollars to A., and demanding an immediate refund of the same amount. Then, on December 10, 2010, three unidentified persons, who were not identified during the preliminary investigation, stopped U., who was driving along the Atyrau-Astrakhan highway in a Mercedes Benz car, the state number e-525, and brought him to N.'s House, demanding an immediate refund of АҚШ 300,000.
U., fearing their demands, estimated the apartment in the name of his father at 13,230,000 Tenge, the tractor brand "M542S" at 15,435,000 tenge, all at 210,000 US dollars and offered to take these properties. N. and H. concluded a purchase and sale agreement between U. and M. through a notary to register these properties in the name of their acquaintances M. Later, in order to return the remaining 90,000 US dollars, U. threatened to use force and illegally appropriated 10,290,000 tenge of money. In general, they caused significant damage to the rights and legitimate interests of U. and caused him material damage in the amount of 38,955,000 tenge. The prosecutor general, in his protest in the order of supervision in this criminal case, in the course of the preliminary investigation, in connection with the incorrect application of criminal and criminal procedure laws at the judicial stage and the absence of corpus delicti in the actions of N., made a claim to cancel judicial acts against him, and in relation to H., changing the judicial acts, re-qualifying his actions with Part 1 of Article 327 of the criminal code, imposing a sentence of restriction of freedom for a period of one year. N.'s defenders wrote in their appeals to the supervisory Judicial Board of the Supreme Court that the evidence proving that the convicted N. was not involved in the crime was not taken seriously, and asked for the acquittal of N., violating the court orders. The supervisory Judicial Board of the Supreme Court heard the opinion of the prosecutor in support of the protest, the arguments of lawyers, studied the case materials and came to the conclusion that the court rulings against N. and H. were canceled and the criminal case was subject to dismissal from production. A resident of isatay District of Atyrau region U. on October 27, 2011, in the name of the Akim of Atyrau region R., his house, money N. he filed an application for illegal seizure. "I don't know," he said, " but I don't know."
The prosecutor's office sent the application to the Regional Department of internal affairs, and on November 3, 2011, the head of the Investigation Department of the Regional Department of internal affairs B. contrary to the requirements of the CPC, without prior verification of the merits of the arguments specified in the application, warned the applicant about criminal liability provided for by law in case of providing false information, issued a decision to initiate a criminal case without receiving a receipt. An oral statement about a crime committed during an investigative action or during a trial specified in Article 178 of the CPC is entered into the minutes of an investigative action or court session, respectively. In other cases, a separate protocol is drawn up. The protocol must contain information about the applicant, his place of residence or work, as well as documents certifying his identity. The protocol is signed by the applicant and the official who accepted the application. The requirement of Article 351 of the Criminal Code of the Republic of Kazakhstan: the applicant is warned about criminal liability for deliberately providing false information, which is marked in the protocol and certified by the signature of the applicant is not fulfilled at all. U. is not warned that in case of deliberately false delivery, he will be brought to criminal responsibility under Article 351 of the criminal code. It also does not take into account the requirements of the procedure for initiating a criminal case provided for in Article 186 of the code of criminal procedure, that is, the reasons and grounds for initiating a case, in relation to whom or on what fact it is being initiated, the further course of the case is indicated, the applicant and the person against whom the case In accordance with Article 109 of the code of criminal procedure N. who did not agree with the decision of the investigator filed a complaint with the court.
By the decision of the court No. 2 of Atyrau city dated November 16, 2011, the part of the resolution of the investigative body initiated on November 3, 2011 in relation to N. and unspecified persons was recognized as illegal. This court decision was challenged by the prosecutor of Atyrau city, and the court of Appeal dismissed the protest on November 24, 2011, leaving the decision unchanged. Thus, the investigative body, in gross violation of the requirements of Article 37 of the code of criminal procedure, did not receive an application for initiation of a criminal case from U., on the contrary, it was signed on November 4 and 29, 2011: "N. I have no claim on H.",-Despite the fact that the court ruling in violation of the decision to initiate a criminal case against N. was in legal force, continued the investigative actions, and on November 28, 2011, the investigator issued a decision to accept the case into its proceedings. The criminal case against H. was not initiated at all. Nevertheless, with the sanction of the prosecutor of the region K. from November 12 to December 11, 2011, through the use of special technical means N. the conversations of I. H. were secretly listened to and recorded, and his 11-page transcripts were attached to the criminal case.
As specified in Part 2 of paragraph 18 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 4" on some issues of evaluating evidence in criminal cases", the actual data obtained before the initiation of a criminal case cannot be recognized as valid evidence. It was not taken into account that in connection with the violation of the decision to initiate a criminal case against N. by the court, the investigative body did not have a legal basis for conducting any special operational search measures against him, it was not taken into account that in accordance with Article 116 of the CPC, their results are subject to recognition as illegal, On January 28, 2011, as an accused, N. was charged with Part 3 of Article 327 of the criminal code, and on January 29, the investigative body applied a restraining order, without complying with the requirements of the Criminal Procedure Law, continuing the gross violation of the law, before the initiation of a criminal case. Only on February 10, 2012, the investigative body, with the previous statement of U., on the same fact, again opened a criminal case against N. under Part 3 of Article 327 of the Criminal Code, 4 days before the end of the investigation (the investigation ended on February 14, 2012) illegally initiated against N. and sent the investigated criminal case to the court.
The court of first instance, instead of recognizing the results of operational search measures carried out during the preliminary investigation in gross violation of the requirements of the law as inadmissible evidence, took the basis of an indictment. In the appellate and Cassation courts of the regional court, the arguments of the defense attorneys about the violation of the resolution on the initiation of a criminal case against N., and the general criminal case against H. were not initiated, nevertheless, an investigation was conducted, that is, N. and H. were brought to illegal criminal responsibility were left unchanged, the illegal verdict of the court of first instance.
The court of first instance took as the basis for the conviction, instead of recognizing as inadmissible evidence information that was not supported by factual facts obtained during the preliminary investigation in gross violation of the requirements of the law.
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