The groundlessness of the accusation and the provocative and inflammatory actions of the criminal prosecution authorities exclude the criminality of the act of the person against whom this activity was carried out.

By the verdict of the Al-Farabi District Court of Shymkent dated December 21, 2016: O., who had no previous criminal record, was sentenced under parts 3, 4 of Article 28, part 3 of Article 24, part 3 of Article 216 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 5 years in prison with life imprisonment for the right to hold positions in commercial organizations. A., who had no previous criminal record, was sentenced under part 5 of Article 28, part 3 of Article 24, part 3 of Article 216 of the Criminal Code to 5 years in prison with life imprisonment for the right to hold senior positions in commercial organizations.; K., who had no previous criminal record, was sentenced under part 5 of Article 28, part 3 of Article 24, part 3 of Article 216 of the Criminal Code to 5 years in prison with life imprisonment for the right to engage in accounting activities, acquitted under part 2 of Article 385 of the Criminal Code for lack of proof of guilt; Sh., previously not convicted, convicted under part 3 of Article 24, part 3 of Article 216 of the Criminal Code to 5 years in prison with life imprisonment for the right to hold senior positions in commercial organizations, acquitted under part 2 of Article 385 of the Criminal Code for lack of proof of guilt. For all those convicted on the basis of paragraph 7) of Article 4 of the Law of the Republic of Kazakhstan "On Amnesty in connection with the twenty-fifth anniversary of Independence of the Republic of Kazakhstan", the sentence was reduced by half and each was sentenced to 2 years and 6 months in prison, with life imprisonment for the right to hold positions in commercial organizations, except for K., who was sentenced to life imprisonment for the right to engage in accounting activities.

In accordance with article 63 of the Criminal Code, they decided to consider their punishment conditional with the establishment of probation control for the entire term of their sentence. The verdict was upheld by the decision of the Judicial Board for Criminal Cases of the South Kazakhstan Regional Court dated February 8, 2017. By the resolution of the Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan dated January 16, 2018, at the protest of the Prosecutor General of the Republic of Kazakhstan, the verdict was changed. The appointment of additional punishment in the form of life imprisonment for the convicts to hold positions in commercial organizations and engage in accounting activities was canceled. O., A. and Sh. additional punishment was imposed in the form of deprivation of the right to hold senior positions in commercial organizations, and K. - the right to engage in accounting activities for a period of 10 years. According to the verdict of the court, O., A., K., Sh. with an unidentified person named "Maksat", a group of persons, by prior agreement, for mercenary purposes, committed acts to issue invoices totaling 1,427,473,860 tenge for metal products, without actually performing work, providing services, or shipping goods in order to extract property benefits, agreeing to sell them to a representative of S LLP B. for remuneration in the amount of 6 percent of the specified amount, which they intended to cause damage to the State on an especially large scale.

The groundlessness of the accusation and the provocative and inflammatory actions of the criminal prosecution authorities exclude the criminality of the act of the person against whom this activity was carried out.

In the protest, the Prosecutor General asks for the verdict against the convicts to be overturned due to the improper application of the criminal procedure law, which resulted in an unjustified conviction. He believes that the factual data on the case used as evidence was obtained in violation of article 112 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) as a result of provocation by the operational services. Therefore, they cannot be used as the basis of a verdict. The criminal prosecution body has not obtained sufficient evidence of the involvement of convicts in the organization of an attempt to commit acts of issuing fictitious invoices without the actual shipment of goods. Considers it necessary to terminate the proceedings under parts 3, 4, 5 of Article 28, part 3 of Article 24, part 3 of Article 216 of the Criminal Code due to the absence of elements of a criminal offense in their actions on the basis of paragraph 2) of part 1 of Article 35 of the CPC. According to paragraphs 8) and 9) of part 3 of Article 77 of the Constitution of the Republic of Kazakhstan, when applying the law, a judge must be guided by the following requirement: any doubts about the guilt of a person are interpreted in favor of the accused, evidence obtained by illegal means has no legal force. In accordance with paragraph 1) part 3 of Article 484, paragraph 1) of Part 1 of Article 485, paragraph 3) of part 2 of Article 485 of the CPC, judicial acts of local courts and the cassation instance that have entered into force may be reviewed in cassation upon the protest of the Prosecutor General when the adopted judicial act violates uniformity in the interpretation and application of legal norms by the courts. The grounds for cancellation are violations of the constitutional rights and freedoms of citizens committed during the investigation or judicial review of the case, or the improper application of criminal and criminal procedure laws, which led to the conviction of an innocent person.

There are such grounds in this criminal case. The conviction of O., A., K., and Sh. violates the uniformity in the interpretation and application of legal norms by the courts, does not meet the requirements of the criminal law, and their guilt has not been established by a sufficient body of indisputable evidence. It follows from the court verdict that, at the request of witness B., the convicts produced fictitious invoices and contracts between the latter and the alleged suppliers of LLP "G", "Yu", "E", "A.", "T", "G" for a total amount of 1,427,473 for the buyer of metal products, LLP "C". 860 tenge. As a result, LLP "S" could avoid paying KZT 244,808,833 corporate income tax and KZT 163,048,840 value-added tax to the state budget for a total amount of KZT 407,849,673, which is a particularly large amount. The crime was not completed due to circumstances beyond their control, as O. was detained while handing over invoices to B. From the case file and explanations of witness B. It follows that on September 22, 2015, she met O. through a dating site and offered him to issue fictitious invoices for a fee without actual delivery of products. After that, she wrote a statement to the SIR of the DGD in the South Kazakhstan region that O. was engaged in issuing invoices without performing actual work. Further, all actions were carried out under the supervision of their employees. At the same time, B. provided O. with the details of LLP "S", allegedly in need of such accounts, as well as the amount and list of goods that are the subject of imaginary transactions. After B.'s conversation with O. the latter turned to A., and she, in turn, to S., who prepared the accounting documents with the help of K. Thus, the number of people involved has increased. The materials of this criminal case established that B. had never worked at LLP "S" and had nothing to do with it. There is no information in the case file that LLP "S" intended or pursued the goal of tax evasion by using fictitious invoices. The objective side of the criminal offense provided for in Article 216 of the Criminal Code is expressed in the commission of actions to issue invoices without actually performing work, rendering services, or shipping goods in order to extract property benefits that have caused major damage to a citizen, organization, or state. The ultimate goals of criminal acts provided for by this norm are the legalization of property, underestimation of the tax base, tax evasion, and illegal enrichment. An obligatory sign of the objective side of this crime, in addition to issuing fictitious invoices for the purpose of obtaining property benefits, is the infliction of large or especially large damage to a citizen, organization or state as a result. Based on the established circumstances, as a result of the issuance by the convicts of fictitious invoices to LLP "S" in order to extract property benefits, it was impossible to cause damage to the state in the form of non-receipt of taxes, since the alleged acquirer had no intention of concluding imaginary transactions or using fictitious invoices, and therefore to evade such tax evasion and damage to the state. The conclusions of the courts of lower instances on the presence of all the mandatory elements of a crime in the actions of the convicted contradict the circumstances established in the case and are not supported by proper evidence. By virtue of the above, such a sentence cannot be considered lawful and justified due to the incorrect application of the criminal law norm, which led to the conviction of innocent people.

In accordance with the requirements of parts 1, 4 of Article 112 of the CPC, factual data must be declared inadmissible as evidence and cannot be used as the basis of an accusation, as well as used in proving any circumstance specified in Article 113 of the CPC, if they were obtained in violation of the requirements of this Code, which influenced or could have influenced their reliability, including through the use of deception, as well as other illegal actions, with a significant violation of the procedure for the procedural action. Such violations were committed in the case. In the opinion of the board, the pre-trial body violated the requirements of article 180 of the CPC, according to which sufficient data indicating signs of a criminal offense serve as grounds for initiating a pre-trial investigation in the absence of circumstances precluding the proceedings. So, according to the report of the senior officer of the DGD in the South Kazakhstan region, T. on the discovery of information about a crime registered in the CUI on September 28, 2015 No. 155100120001119 (registered in the ERDR under No. 155100121000560 on September 29, 2015), during operational search measures, citizen "E" was identified offering invoice services without actually performing work, rendering services, or shipping goods in order to extract property benefits. At the same time, objective data indicating signs of a criminal offense is not provided other than the aforementioned report. They are also missing from the case file. In violation of these norms, the criminal prosecution body, having received a statement from B. on September 22, 2015 about O.'s involvement in the sale of fictitious invoices and voluntary cooperation, opened an operational development case without registering her application in the ERDR. From the circumstances of the case, we can see an imitation of criminal activity and prompt purchase on the part of witness B. since September 22, 2015, when she created a situation of an imaginary transaction by offering O. to issue fictitious invoices for a fee. At the same time, in violation of the requirements of the Law of the Republic of Kazakhstan "On operational investigative activities", there is no corresponding resolution of the pre-trial investigation body in the framework of operational investigative measures in the case file, as its declassification was refused. The prosecutor's request to attach it to the case file when returning the case for additional investigation dated April 10, 2016 remained unfulfilled. In violation of the requirements of Articles 231-251 of the CPC, the implementation of B. The imitation of criminal activity was not formalized even after the initiation of a criminal case as an unspoken investigative action.

The groundlessness of the accusation and the provocative and inflammatory actions of the criminal prosecution authorities exclude the criminality of the act of the person against whom this activity was carried out.

There is no resolution on secret control purchase or imitation of criminal activity in the case file, as well as information about obtaining the approval of the relevant prosecutor for their conduct. Therefore, the cassation board considers that the aforementioned operational and investigative actions were carried out with significant violations of the specified procedural norms. Factual data obtained in violation of the requirements of article 112 of the CPC cannot be used as the basis for a verdict. By virtue of paragraph 24 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 8 "On the practice of considering certain corruption crimes", provocative and inflammatory actions of the criminal prosecution authorities, when a person's consent to commit a crime was obtained as a result of his persuasion under circumstances indicating that without the intervention of the criminal prosecution authorities, he there would have been intent and the crime would not have been committed, excludes the criminality of the act of the person in respect of whom this activity was carried out. According to article 19 of the CPC, everyone is considered innocent until his guilt in committing a criminal offense is proven in accordance with the procedure provided for in this Code and established by a court verdict that has entered into legal force. No one has to prove their innocence. There is no evidence in the case file that O. and other convicts had committed any acts indicating the preparation or commission of fictitious invoices or other similar offenses before meeting B.. B.'s arguments The information about her authority to produce fictitious invoices for LLP "S" turned out to be false. The power of attorney in the case file dated September 22, 2015 in her name was issued by an unauthorized person A., who is not related to the named LLP and denies acquaintance with her. There is no evidence of the will of the LLP representatives to issue fictitious invoices and use them in the case. In the opinion of the cassation board, in this case there was a provocation and incitement by B. to commit a crime by O., and through him by other convicts. The consent of the convicts was obtained as a result of their persuasion to do so, which consisted in repeated, under an assumed name, contacts via the Internet and telephone, personal meetings initiated by B., persuasions, offers from O. and through him to other convicts to write out commodity-free invoices for monetary remuneration, in order to generate a selfish motive and intent for them to commit crimes. At the same time, B. she acted purposefully, offering a specific buyer, LLP "S", the range and cost of goods, as well as insisting on the registration of fictitious official powers of O., as the financial director of suppliers, by issuing relevant orders.

The Board considers that without the intervention of the criminal prosecution authorities through the use of a confidential assistant, B. the crime would not have been committed. This excludes the criminality of the act of the person in respect of whom this activity was carried out. Moreover, it has been reliably established that B. participated in similar actions in a number of criminal cases. According to paragraph 2) of part 1 of Article 35 of the CPC, a criminal case is subject to termination due to the absence of elements of a criminal offense in the convicted person's act. In such circumstances, the cassation board considers that the criminal prosecution body has not obtained sufficient admissible evidence of the involvement of convicts in the attempted organization and complicity in the commission of fictitious invoices without the actual shipment of goods that caused major damage, which entails the termination of proceedings in this case for lack of corpus delicti. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court annulled the judicial acts of the local courts in respect of O., A., K., Sh. and the proceedings in this case were terminated due to the absence of elements of a criminal offense in their actions. In accordance with article 39 of the CPC, O., A., K., and Sh. are recognized as having the right to compensation for harm caused to them as a result of illegal actions of the body conducting the criminal process. The Prosecutor General's protest is satisfied.

In accordance with the requirements of parts 1, 4 of Article 112 of the CPC, factual data must be declared inadmissible as evidence and cannot be used as the basis of an accusation, as well as used in proving any circumstance specified in Article 113 of the CPC, if they were obtained in violation of the requirements of this Code, which influenced or could have influenced their reliability, including through the use of deception, as well as other illegal actions, with a significant violation of the procedure for the procedural action. Such violations were committed in the case. In the opinion of the board, the pre-trial body violated the requirements of article 180 of the CPC, according to which sufficient data indicating signs of a criminal offense serve as grounds for initiating a pre-trial investigation in the absence of circumstances precluding the proceedings. So, according to the report of the senior officer of the DGD in the South Kazakhstan region, T. on the discovery of information about a crime registered in the CUI on September 28, 2015 No. 155100120001119 (registered in the ERDR under No. 155100121000560 on September 29, 2015), during operational search measures, citizen "E" was identified offering invoice services without actually performing work, rendering services, or shipping goods in order to extract property benefits. At the same time, objective data indicating signs of a criminal offense is not provided other than the aforementioned report. They are also missing from the case file. In violation of these norms, the criminal prosecution body, having received a statement from B. on September 22, 2015 about O.'s involvement in the sale of fictitious invoices and voluntary cooperation, opened an operational development case without registering her application in the ERDR. From the circumstances of the case, we can see an imitation of criminal activity and prompt purchase on the part of witness B. since September 22, 2015, when she created a situation of an imaginary transaction by offering O. to issue fictitious invoices for a fee. At the same time, in violation of the requirements of the Law of the Republic of Kazakhstan "On operational investigative activities", there is no corresponding resolution of the pre-trial investigation body in the framework of operational investigative measures in the case file, as its declassification was refused. The prosecutor's request to attach it to the case file when returning the case for additional investigation dated April 10, 2016 remained unfulfilled. In violation of the requirements of Articles 231-251 of the CPC, the implementation of B. The imitation of criminal activity was not formalized even after the initiation of a criminal case as an unspoken investigative action.

The groundlessness of the accusation and the provocative and inflammatory actions of the criminal prosecution authorities exclude the criminality of the act of the person against whom this activity was carried out.

There is no resolution on secret control purchase or imitation of criminal activity in the case file, as well as information on obtaining the approval of the relevant prosecutor for their conduct. Therefore, the cassation board considers that the aforementioned operational and investigative actions were carried out with significant violations of the specified procedural norms. Factual data obtained in violation of the requirements of article 112 of the CPC cannot be used as the basis for a verdict. By virtue of paragraph 24 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 8 "On the practice of considering certain corruption crimes", provocative and inflammatory actions of the criminal prosecution authorities, when a person's consent to commit a crime was obtained as a result of his persuasion under circumstances indicating that without the intervention of the criminal prosecution authorities, he there would have been intent and the crime would not have been committed, excludes the criminality of the act of the person in respect of whom this activity was carried out. According to article 19 of the CPC, everyone is considered innocent until his guilt in committing a criminal offense is proven in accordance with the procedure provided for in this Code and established by a court verdict that has entered into legal force. No one has to prove their innocence. There is no evidence in the case file that O. and other convicts had committed any acts indicating the preparation or commission of fictitious invoices or other similar offenses before meeting B.. B.'s arguments The information about her authority to produce fictitious invoices for LLP "S" turned out to be false. The power of attorney in the case file dated September 22, 2015 in her name was issued by an unauthorized person A., who is not related to the named LLP and denies acquaintance with her. There is no evidence of the will of the LLP representatives to issue fictitious invoices and use them in the case. In the opinion of the cassation board, in this case there was a provocation and incitement by B. to commit a crime by O., and through him by other convicts. The consent of the convicts was obtained as a result of their persuasion to do so, which consisted in repeated, under an assumed name, contacts via the Internet and telephone, personal meetings initiated by B., persuasions, offers from O. and through him to other convicts to write out commodity-free invoices for monetary remuneration, in order to generate a selfish motive and intent for them to commit crimes. At the same time, B. she acted purposefully, offering a specific buyer, LLP "S", the range and cost of goods, as well as insisting on the registration of fictitious official powers of O., as the financial director of suppliers, by issuing relevant orders.

The Board considers that without the intervention of the criminal prosecution authorities through the use of a confidential assistant, B. the crime would not have been committed. This excludes the criminality of the act of the person in respect of whom this activity was carried out. Moreover, it has been reliably established that B. participated in similar actions in a number of criminal cases. According to paragraph 2) of part 1 of Article 35 of the CPC, a criminal case is subject to termination due to the absence of elements of a criminal offense in the convicted person's act. In such circumstances, the cassation board considers that the criminal prosecution body has not obtained sufficient admissible evidence of the involvement of convicts in the attempted organization and complicity in the commission of fictitious invoices without the actual shipment of goods that caused major damage, which entails the termination of proceedings in this case for lack of corpus delicti. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court annulled the judicial acts of the local courts in respect of O., A., K., Sh. and the proceedings in this case were terminated due to the absence of elements of a criminal offense in their actions. In accordance with article 39 of the CPC, O., A., K., and Sh. are recognized as having the right to compensation for harm caused to them as a result of illegal actions of the body conducting the criminal process. The Prosecutor General's protest is satisfied. 

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