The director of the bank branch was unjustifiably released from criminal liability without a court check whether the bank employees convicted of issuing illegal loans in large quantities without the permission of the head of the bank.
By the verdict of the Al-Farabi District Court of Shymkent, South Kazakhstan region, dated December 27, 2012, P., not previously convicted, was found not guilty by Paragraph "B" of Part 3 of Article 177 of the criminal code, Part 1 of Article 220 and acquitted due to the absence of corpus delicti in the case. S., not previously convicted, found guilty by Paragraph "B" of Part 3 of Article 177 of the Criminal Code, sentenced to 3 years of imprisonment, 3 years of probation with the application of Article 63 of the Criminal Code and sentenced to probation; The victim dismissed the civil claim of Kazkommertsbank JSC against the convicted S. The preliminary investigation body accused P., While working as the director of the Shymkent branch of Kazkommertsbank JSC, using his position as a group of people, repeatedly committing fraud with the use of forged documents and contributing to the issuance of illegal loans. By the court verdict Sh., I., zh., N., full, A. In 2007, the Shymkent branch of Kazkommertsbank JSC was found guilty of preparing false information about the financial situation, guaranteeing immovable property that does not correspond to the documents, taking illegal loans from the bank, stealing large amounts of other people's property through abuse of trust, fraud. The director of the bank branch P. was acquitted due to the absence of corpus delicti in his actions. By the decision of the Appellate Judicial Board of the South Kazakhstan regional court, the verdict against S. and P. was left unchanged. The Judicial Board of Cassation S. I left the verdict and the decision of the Appellate Judicial Board unchanged in relation to P.
The victim, in the appeal of the representative of Kazkommertsbank JSC A., disagreed with the judicial acts, overturned the sentence on the acquittal of P. and asked to satisfy the claim against S. in full. The prosecutor, in protest, violated the judicial acts on P. and asked to send the criminal case to the Appellate Judicial Board of the South Kazakhstan regional court for revision in a different composition. Hearing the opinions of the representative of JSC" Kazkommertsbank", the prosecutor in support of the appeal and protest, the arguments of the defense lawyers to leave the judicial acts unchanged, studying the documents of the criminal case, the Supervisory Board considers the decisions of the court of Appeal and Cassation to be subject to violation on the following grounds.The investigative body, being the director of the Shymkent branch of the Bank P., That is, the person who executes the management services of a commercial organization, performs the management services of a commercial organization and organizes work, he is accused of establishing the method and method of committing a crime by the bank's employees, illegally issuing a non-repayable loan through this established system of committing a crime, causing damage to the bank in the amount of a total of 840.921.658 tenge. In particular, on the fact of fraudulently stealing the Bank's funds in large quantities, bank employees K., N., B. and the court sentences that have entered into legal force against 26 individuals who, by collusion and fraudulently received illegal loans from the Bank, prove that this large amount of damage was caused by systematic fraud while P. was the director of this Bank and chairman of the lending committee, that is, for two years.
The director of the bank branch was unjustifiably released from criminal liability without a court check whether the bank employees convicted of issuing illegal loans in large quantities without the permission of the head of the bank.
Convicted bank employees, despite the fact that they did not apply for a large loan to people who are not engaged in commerce, they are engaged in private business, have a stable income and full opportunities to repay the loan, use the loan for real estate and business development, create false documents that the loans are secured with appropriate collateral, get the consent of the credit committee chaired by P., and repeatedly issued large illegal loans. In particular, illegal loans were issued to the following citizens by entering false information in the documents of borrowers: - A. - 21,395,584 tenge; - B. - 26,400,000 tenge; - M. - 41,273,120 tenge; - Sh. - 19,846,180 tenge; - G. - 36,343,000 tenge. Applications for the provision of loans by these persons were written only after they had already been issued illegal loans. Despite the fact that the above-mentioned citizens have forged documents on illegal lending, they do not have a pre-written application for granting a large loan, the documents were submitted to the credit committee, and the agreement of the credit committee was concluded between the borrowers and the bank, and the borrowers received large amounts of money without any problems. Bank employees who were asked as witnesses showed that the convicts overestimated the price of pledged real estate by entering illegal false information into the document, or contributed to the issuance of non-repayable loans by pretending to have houses that did not exist at all. Responding to the court as a witness, U. stated that he gave 10 percent of the loans he received from the bank to him at the request of manager B., since he would solve the issue of lending together with the heads of the bank, and the documents of the pledged property on all loans were changed. As a result of the preliminary investigation and the trial, it was established that the prices of the pledged real estate for the entire episode were artificially increased by creating forged documents, and not a single mortgagor was engaged in business, that is, he did not have the conditions to close the loan. The decision was made by the court of first instance without checking whether the bank employees convicted of preparing fake documents instead of real ones and allowing them to take out a loan had the opportunity to illegally issue loans in large amounts without the help of P. In addition, the prosecutor of the Al-Farabi district appealed to the verdict and asked P. to overturn the acquittal, find him guilty under Article 232 of the criminal code and release him from criminal liability in connection with the expiration of the statute of limitations for his crime in accordance with Paragraph "A" of Part 1 of Article 69 of the criminal code. The appellate court found this protest unfounded and dismissed it. The Appellate Judicial Board justified its decision according to the law and did not draw concrete conclusions. In accordance with Section 27 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 20.06.2005 No. 1" on consideration of a civil claim in criminal proceedings", it is necessary to specify in the resolution of the sentence from whom, jointly or in equity, exactly what amount will be reimbursed when satisfying a civil claim against several defendants. If the damage was caused as a result of joint criminal actions of several persons, then both minors and minors of the convicted persons jointly bear material liability in accordance with article 932 of the civil code, provided that they have property or other sources of income. The court may jointly impose damage on the victim's application and in his interests. The court of first instance ignored these principles and dismissed the civil claim against the convicted S. In such a situation, it is necessary to provide for the possibility of resolving the situation of leaving the statement of claim without consideration, since the plaintiff cannot be deprived of the right to file a claim in court proceedings. In addition, the plaintiff needs to check to what extent the statement of claim of Kazkommertsbank JSC for the recovery of non-deductible income (lost profit) complies with the law. The accumulated evidence in the criminal case was not examined in the court of First Instance, and a hasty decision was made. The shortcomings submitted by the court of first instance were ignored by the court of Appeal and Cassation. During the review of the criminal case, it is necessary to assess all the accumulated circumstances in an appropriate legal context and make a legal decision.
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