The qualification of the actions of a convicted person for fraud, that is, theft of other people's property by deception and abuse of trust, committed in a group of persons by prior agreement, is erroneous because in this case the corpus delicti is not complete, since the convicted person could neither use nor dispose of the specified money.
By the verdict of the Kazybek bi district of Karaganda dated February 5, 2013: Z., sentenced under paragraph "b" of part four of Article 177 of the Criminal Code to 9 (nine) years in prison with confiscation of property, under part two of Article 325 of the Criminal Code to 3 (three) years in prison, under part three of Article 325 of the Criminal Code to 6 (six) months of restriction of freedom. In accordance with the third part of Article 58 of the Criminal Code, by absorbing a less severe punishment with a more severe one, 9 (nine) years of imprisonment with confiscation of property, with serving the sentence in a correctional colony of a general regime, was finally appointed to serve. The term of serving the sentence Z. calculated since May 19, 2012. The procedural costs in the amount of 116,058 tenge were collected from Z. and A. to the state revenue for conducting a forensic examination. The fate of the physical evidence is resolved. He is under arrest. The same verdict convicted A., against whom the verdict has not been appealed or protested. By the verdict of the court Z. He was found guilty and convicted of committing fraud, that is, theft of other people's property by deception and abuse of trust, committed in a group of persons in prior agreement with A., authorized to perform government functions using his official position, committed on an especially large scale.
In addition, the forgery and sale of another official document granting rights and exempting from duties and forged stamps committed by a group of persons by prior agreement and the use of a deliberately forged document. The verdict was upheld by the decision of the appellate judicial board. Having studied the case materials on the complaints of the convicted person and the protest of the prosecutor, the cassation board changed the judicial acts in the case on the following grounds. Conclusions of the court on the guilt of convicted Z. in the crimes charged against him, the circumstances set out in the verdict are correct and based on the totality of evidence examined during the main court proceedings. Z.'s guilt was confirmed by the testimony of the convicted A., the victim M., witnesses A., K., E., H., O., S., B., S., Sh., G. protocols of seizure, handing over of funds, handing over and seizure of audio-video equipment, inspection of the scene, expert reports, detailed calls and other evidence. At the same time, the court gave an incorrect qualification to the actions of the convicted person. It follows from the case file that on May 19, 2012, at about 12:00 p.m., Z., acting in collusion with A., continuing to implement his criminal plans, arrived at the office of K LLP in Karaganda, where, through deception and abuse of trust, he received 550,000,000 tenge from A., but was immediately detained with red-handed by ABECGT officers, after which A. was detained, who was waiting for Z. with the specified funds and who repeatedly called him from a mobile phone.
In accordance with paragraph 7 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 8 "On judicial practice in cases of embezzlement," fraud is considered completed if the property is seized and the perpetrator has a real opportunity to use or dispose of it at his discretion. The audio and video recordings show that Z.'s detention the suitcase of money happened immediately after receiving the money from A., that is, Z. did not leave A.'s office.
In such circumstances of the case, the qualification of Z.'s actions according to paragraph "b" of the fourth part of Article 177 of the Criminal Code, it is erroneous, since in this case the corpus delicti is not complete, since Z. He could neither use nor dispose of the specified money. Therefore, Z.'s actions should be qualified as an attempt to commit fraud, that is, under part three of Article 24, paragraph "b" of part four of Article 177 of the Criminal Code and, accordingly, a penalty should be imposed on the basis of article 56 of the Criminal Code. The prosecutor's protest in this part is legitimate, well-founded, and must be satisfied. The defense's arguments about the reclassification of Z.'s actions from paragraph "b" of the fourth part of Article 177 of the Criminal Code to Article 313 of the Criminal Code, as mediation in the transfer of a bribe and acquittal under the third part of Article 325 of the Criminal Code for lack of proof of his guilt are untenable and, having become the subject of consideration in the courts of the first and appellate instances, have been reasonably refuted. Therefore, the complaints of the defense in this part are not subject to satisfaction. It can be seen from the case file that, according to the conclusion of the forensic technical examination of documents No. 2858 dated June 21, 2012, the stamp of the Prosecutor's Office of the Karaganda region was applied to the decision to cancel the decision to seize the settlement account of E LLP, seized from A. Impressions of round seals and corner stamps of outgoing correspondence on two cover letters to the resolution on lifting the arrest from the account on behalf of the deputy head of SU E. to the director of CF JSC "Ts" V. for No. 10-116-4 and No. 5517 dated May 16, 2012, they were stamped with a round seal and a corner stamp of the outgoing correspondence of the DBECP in the Karaganda region. The persons who stamped and signed the case have not been identified. The materials in relation to them were separated into separate proceedings during the investigation on 09/14/2012.
Thus, the prosecution authorities have not provided evidence that this document was produced by Z. himself. The Cassation Board, considering that these circumstances are the basis for terminating the case under part two of Article 325 of the Criminal Code against Z. due to the lack of evidence of the charges, changed the judicial acts issued in the case against Z., his actions were reclassified from paragraph "b" of part four of Article 177 of the Criminal Code to part three of Article 24, paragraph "b" of the fourth part of Article 177 of the Criminal Code, according to which 6 (six) sentences were imposed 6 years and 6 months of imprisonment with confiscation of property. According to the second part of Article 325 of the Criminal Code, the criminal case was canceled and the proceedings were terminated due to the lack of evidence of the charges. Based on the third part of Article 58 of the Criminal Code, 6 (six) final sentences were assigned for the aggregate of crimes by absorbing a less severe punishment with a more severe one. 6 (six) months of imprisonment with confiscation of property while serving a sentence in a correctional colony of general regime. The rest of the verdict and the decision of the collegium were left unchanged.
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