The legality of the verdict based on the results of the consideration of the contractual case on the admission of guilt, the issuance of an acquittal is not provided

By the verdict of the Al-Farabi District Court of Shymkent dated November 17, 2017: K. has not previously been convicted, the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code) is limited to freedom for 3 years and 6 months by the third part of Article 24, paragraphs 2), 3) of the second part of Article 216.  By the court verdict K. by a group of people, on behalf of "a" LLP, for the work performed and services not provided for the purpose of property gain, the representative of "L" LLP, on the proposal of B., was found guilty of attempting to cause damage to the state in the amount of ipi in the amount of 72,803,714 tenge by writing invoices and other documents for goods amounting to 254,813,000 tenge to the latter for a remuneration of 6%, that is, 15,289,000 tenge. The verdict was not reviewed on appeal. The prosecutor general asked to cancel the verdict of the court of First Instance and send the criminal case to the court of Appeal for a new judicial review due to the violation of the rights of K. as a result of provocations in the protest and gross violation of the requirements of the law. When the court assessed that the actions of K. contained the composition of a criminal offense provided for by paragraphs 2), 3) of the second part of Article 216 of the criminal code, it did not take into account that the crime is subjectively characterized by an intentional form of guilt. K.'s intention should be aimed at creating false invoices for himself and his counterparties in order to obtain property benefits in the form of tax evasion. This intention should be formed before Operational-Search measures begin. The criminal case does not provide information about the fact that K. has long been engaged in the sale of fake invoices and evidence of operational-search measures carried out. In accordance with Article 2 of the law of the Republic of Kazakhstan" on operational-search activities", the tasks of the operational-search service are to identify, prevent and suppress these crimes. At the same time, in accordance with the requirement of Article 15 of this law, it is prohibited to incite and provoke citizens to offenses in the conduct of operational search measures. The criminal offense against K. was registered in the SDTBT on April 5, 2016 after B. provoked the convicted person to commit a crime and agreed to buy fake invoices from him.

The legality of the verdict based on the results of the consideration of the contractual case on the admission of guilt, the issuance of an acquittal is not provided

In his testimony, the witness stated that he met B. through the internet system, and in March 2016, after asking him for help in the preparation of accounting documents for remuneration, he introduced him to K. The court of first instance did not take into account the fact that B. was involved in exposing several crimes in this way. By the decision of the Supreme Court of the Republic of Kazakhstan dated July 2, 2020, the sentence against T. was canceled and the criminal case was terminated due to the absence of corpus delicti in his actions. By the resolution of the Supreme Court of the Republic of Kazakhstan dated October 22, 2020, the verdict against O., A., K. and SH. was canceled, and the criminal case was terminated due to the absence of corpus delicti in their actions. Since these cases provoked the convicted persons to commit a crime in the actions of B., The criminal case was terminated due to the absence of corpus delicti in their actions, since before acquaintance with B. no information was provided about the sale of false invoices and evidence of the operational measures carried out. In accordance with the requirement of Article 112 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code), factual data obtained in violation of the Criminal Procedure Law are recognized as inadmissible data as evidence and are not subject to prosecution. In such a situation, the actual data obtained as a result of the illegal actions of the criminal prosecution body and B. are not classified as evidence. In accordance with the requirement of part one of Article 24 of the CPC, the court, prosecutor, investigator, INQUIRER are obliged to take all measures provided for by law for a comprehensive, complete and objective study of the circumstances necessary and sufficient for the correct resolution of the case.  However, during the investigation and trial of the criminal case, it was not established what kind of affiliation of B. to LLP "L", whether he had the right to act on behalf of this partnership, whether the representatives of the partnership expressed their will to commit a crime on behalf of LLP, how B. intends to further use false invoices and other documents received from K., and whether or not this partnership actually intends to evade payment of taxes on organizations, other mandatory payments to the budget. Without establishing the listed circumstances, there are no grounds for recognizing K. guilty by the third part of Article 24, paragraphs 2), 3) of the second part of Article 216 of the criminal code. In accordance with the third part of Article 19 of the CPC, unresolved doubts about the guilt of the suspect, accused, defendant are interpreted in their favor. In accordance with paragraph 27 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 7, 2016 No. 4" on the practice of contractual procedural proceedings in criminal cases by courts", it is not envisaged to issue an acquittal based on the results of consideration of a contractual case on confession of guilt in contractual proceedings. When the circumstances specified in Article 35 of the CPC are established and they do not require investigation, the court makes a decision to terminate the proceedings in the case. In accordance with paragraph 3) of the first part of Article 626 of the criminal code, if there are doubts in court about the guilt of the defendant, it makes a decision to refuse to consider the case in a conciliatory procedure and a decision to return the criminal case to the prosecutor. The court of First Instance had to return the criminal case against K. to the prosecutor in accordance with paragraph 2) of the first part of Article 623 of the CPC. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan canceled the verdict of the court of first instance against the convicted K. and sent the criminal case to this court for new consideration in a different composition. The protest of the prosecutor general of the Republic of Kazakhstan was satisfied. 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases