The use of evidence obtained as a result of provocation by operational authorities is unacceptable.
By the appeal verdict of the Judicial Board for Criminal Cases of the Almaty Regional Court dated February 19, 2018: K., previously convicted by the verdict of the Almaty District Court of Astana dated April 27, 2012 under part 3 of Article 177 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 4 years of imprisonment with the application of Article 63 of the Criminal Code on probation; – sentenced under part 3 of Article 24, part 5 of Article 28, paragraphs 2, 3 of part 2 of Article 216 of the Criminal Code to 3 (three) years of restriction of liberty with confiscation of property obtained by criminal means or acquired with funds obtained by criminal means, as well as property that is an instrument or means of committing a criminal offense with the establishment of probation control, S. convicted under part 3 of Article 24, part 5 of Article 28, paragraphs 2, 3 of part 2 of Article 216 of the Criminal Code to a fine of 3,000 (three thousand) monthly calculation indices in the amount of 6,807,000 (six million eight hundred seven thousand) tenge, with confiscation of property obtained by criminal means or acquired with funds obtained by criminal means, as well as property that is an instrument or means of committing a criminal offense.
B. was sentenced under part 3 of Article 24, part 5 of Article 28, paragraphs 2, 3 of part 2 of Article 216 of the Criminal Code to a fine of 3,000 (three thousand) monthly calculation indices in the amount of 6,807,000 (six million eight hundred seven thousand) tenge, with confiscation of property obtained by criminal means or acquired on the basis of criminally obtained funds, as well as property that is an instrument or means of committing a criminal offense. s. convicted under part 3 of Article 24, part 5 of Article 28, paragraphs 2, 3 of part 2 of Article 216 of the Criminal Code to a fine of 3,000 (three thousand) monthly calculation indices in the amount of 6,807,000 (six million eight hundred seven thousand) tenge, with confiscation of property obtained by criminal means or acquired with funds obtained by criminal means, as well as property that is an instrument or means of committing a criminal offense.
E. sentenced under part 3 of Article 24, part 5 of Article 28, paragraphs 2, 3 of part 2 of Article 216 of the Criminal Code to 3 (three) years of restriction of liberty with confiscation of property obtained by criminal means or acquired with funds obtained by criminal means, as well as property that is an instrument or means of committing a criminal offense with the establishment of probation control. N. convicted under part 3 of Article 24, part 5 of Article 28, paragraphs 2, 3 of part 2 of Article 216 of the Criminal Code to a fine of 3,000 (three thousand) monthly calculation indices in the amount of 6,807,000 (six million eight hundred seven thousand) tenge, with confiscation of property obtained by criminal means or acquired with funds obtained by criminal means, as well as property that is an instrument or means of committing a criminal offense.
The use of evidence obtained as a result of provocation by operational authorities is unacceptable.
On the basis of article 44 of the Criminal Code, K. was subjected to forced labor in places designated by local executive bodies for a period of 200 (two hundred) hours per year. In accordance with paragraphs 3 of Article 41 of the Criminal Code, it was explained to convicted S., B., Y. and N. that in case of evasion from paying a fine imposed for committing a crime, the fine is replaced by imprisonment at the rate of one day of imprisonment for three monthly calculation indices, taking into account the provisions of Article 46 of the Criminal Code. The fate of the physical evidence is resolved in accordance with article 118 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC). According to the appeal verdict, K., S., B., Y., E. and N. were found guilty of complicity and attempted commission of actions to issue invoices without actually performing work, rendering services, and shipping goods to "E" LLP for a total amount of 251,904,000 tenge, in order to extract property benefits, in the group persons by prior agreement, causing major damage to the state. However, they could not bring their criminal intent to an end, due to circumstances beyond their control. In the petition, lawyer M. in the interests of Y. He requests that the verdict be overturned and a new acquittal be handed down against all those convicted, since all the evidence in the case was obtained in violation of Article 112 of the CPC as a result of provocation by the HEAD of the Department of Internal Affairs of the Almaty region, therefore they cannot be used as the basis for the 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. His client is s. He is not a special subject of this crime, since he is not a private entrepreneur. In his submission, the Chairman of the Supreme Court considers that the court's verdict in the case should be set aside due to a violation of uniformity in the interpretation and application of legal norms by the courts. The illegal acts of the convicts were initiated by law enforcement agencies, as a result of which there was an artificial simulation of the situation of committing an offense, which obviously could not harm the state. According to sub-paragraphs 8) and 9) of part 3 of Article 77 of the Constitution of the Republic of Kazakhstan, any doubts about the guilt of a person are interpreted in favor of the accused and evidence obtained by illegal means has no legal force. 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 obtain property benefits that have caused major or especially 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. The conclusions of the courts of the lower instance 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.
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 the CPC, which affected or could affect their reliability. including: using deception, as well as other illegal actions, with a significant violation of the procedure for the procedural action. Illegal methods of obtaining evidence are understood as violations of the grounds, procedure and procedure for their collection, which do not comply with the norms of international law recognized by the Republic of Kazakhstan, do not comply with the norms or are generally directly prohibited by the norms of the Criminal Procedure Code and other laws regulating the activities, including operational search, special and law enforcement agencies. From the materials of the criminal case, it can be seen that the trial in the courts of the first and appellate instances was conducted unilaterally and superficially, with an accusatory bias, in violation of the requirements of the criminal procedure legislation. At the hearing, all the defendants pleaded not guilty to the alleged act and testified that their testimony was given under psychological and moral coercion from the staff of the pre-trial investigation body in violation of their right to defense. Nevertheless, the court of appeal based the conviction on their testimony given at the stage of the pre-trial investigation and the main trial, in which they admitted their guilt and repented of what they had done. According to the Law of the Republic of Kazakhstan "On Operational Investigative Activities" (hereinafter referred to as the Law), the tasks of operational investigative activities (hereinafter referred to as the ARD) are the detection, prevention, suppression and disclosure of crimes. At the same time, it is not allowed to carry out operational search activities, as well as the use of information obtained during their conduct to achieve goals and objectives not provided for by Law. When carrying out the HORDES, it is prohibited to incite and provoke citizens to commit offenses, to use unlawful actions that restrict the rights, freedoms and legitimate interests of citizens. In accordance with paragraph 24 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan (hereinafter – NPVS) 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 would not have had the intention and the crime would not have occurred. if it were committed, it would exclude the criminality of the act of the person in respect of whom this activity was carried out. Thus, the Law explicitly prohibits the use of information obtained in the course of operational investigative activities in order to provoke criminal offenses and incite citizens to commit them. The body carrying out operational investigative activities has no right to apply a model of behavior that imitates criminal activity in order to provoke criminal acts. So, the convicted K. From the very beginning of the pre-trial investigation, in the main trial and in the court of appeal, he consistently claimed that he had met a girl named "Dana" via the Internet, who was the first to ask him about the possibility of issuing fictitious invoices without actually providing services or sending goods for one organization. She then introduced him to a guy named "Pyc" (an employee of SIR D.), who offered him to write fictitious invoices for a fee, after which he began looking for people who could write fictitious invoices.
The use of evidence obtained as a result of provocation by operational authorities is unacceptable.
The declension of K. The desire to commit a criminal offense was expressed in repeated contacts with him through personal meetings and telephone conversations at the initiative of the Company's employees, offers to issue invoices for a monetary reward without actually performing work, providing services, or sending goods for a certain LLP. Thus, a witness under the pseudonym "Dana" testified that in early January 2017 she met K., with whom she arranged for his help in issuing fictitious invoices. Then, acting according to the developed "legend", that is, a model that imitates criminal behavior, she introduced him to Officer SIR D., who also imitated a model of criminal behavior. Meanwhile, the status of a person imitating a model of criminal behavior was assigned to her only on January 17, 2017, that is, after a preliminary conversation with K. Witness D. testified that he was an employee of the Department of Internal Affairs of the Almaty region. Based on the resolution, he was introduced into the criminal environment as a person imitating criminal activity, was involved as a representative of the company, that is, he acted as a buyer of invoices from K. Operational development was conducted by E. In January, I met K. on the phone, the number of which was given by the staff. When he called, he said that he was calling from "Dana", as he had been warned, but he himself could not explain anything about "Dana". At the meeting, K. said that he could do the paperwork for 10%, he worked for some company, but he did not specify which one. He explained to K. that he needed fictitious invoices for "E" LLP. Then he met with K. 5-6 times. He came to the first meeting without recording equipment, since at that time the sanction had not yet been given. During the conversation about the amount of remuneration with K., I gave him the details of "E" LLP, which were provided to him by the operational staff. The preparation of documents took 3 weeks instead of one. Analysis of the testimony of witness D. and the witness under the pseudonym "Dana", convicted K. and comparing the date of their acquaintance in early 2017 shows that the SIR staff first persuaded K. to commit a criminal offense. Only after that, on January 17, 2017, D. and "Dana" were assigned the status of persons imitating a model of criminal behavior, which is unacceptable. In addition, according to the protocol of the inspection of the scene of the incident dated February 2, 2017, Y. At the time of his arrest, no funds were found, which, according to the investigation, are funds for paying invoices. In such circumstances, this protocol cannot have evidentiary force. The conclusion of specialist T., to whom the rights and duties of the specialist were not explained, also cannot be recognized as evidence. Moreover, the protocol on the investigation of the results of special measures and the inclusion in the criminal case was drawn up by investigator A., in whose proceedings the case was not, i.e., not by the proper person, and was not signed by him. Instead, he was signed by an employee, Sir O., who did not conduct this study. In other words, these materials are inadmissible evidence. The pre-trial investigation authorities did not provide objective evidence that K. previously, he was engaged in the manufacture of fake invoices, which could be the basis for its operational development. In this regard, the report of K. The fact that E. is engaged in issuing fake invoices with the already pre-determined value of a fictitious transaction and the amounts of unpaid VAT and VAT raises doubts about the objectivity and reliability. There is no evidence in the case file that TOO "E" intended to use fictitious invoices for the purpose of tax evasion and causing damage to the state, which is an obligatory element of the objective side of the crime provided for in Article 216 of the Criminal Code. In particular, it has not been established whether TOO "E" exists, who is the head, whether they really agreed to use the name of his TOO for OPM, whether the LLP had a need to increase the expenditure side (deductions), etc. In the case, there is only a letter on behalf of the director of TOO "E" A. that the LLP does not object to the use of the company's details during the OPM. However, A. was not questioned either during the pre-trial investigation or during the trial.
In these circumstances, the court's statement about the intention to increase the expenditure side (deductions) TOO much by concluding fictitious transactions and the possibility of causing large-scale damage to the state in the amount of unpaid taxes on them is not objectively confirmed by anything. Based on the established circumstances, as a result of the convicts issuing fictitious invoices to E LLP 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, evade tax evasion and damage to the state. It was established that those convicted earlier had not engaged in the illegal sale of fictitious invoices, but only once, at the request of a girl named "Dana", D. and other unidentified persons, they produced the seized invoices and other documents for financial remuneration. In addition, it has been reliably established that "Dana" was not engaged in any commercial activity and was not a representative of "E" LLP. Thus, the convicts found themselves in circumstances artificially created for the purpose of committing a crime. Consequently, these circumstances indicate a provocation committed against the convicts. The use of evidence obtained as a result of provocation by operational authorities in criminal proceedings is unacceptable. Factual data obtained in violation of article 112 of the CPC cannot be used as the basis for a verdict. Thus, it has been reliably established that the illegal acts of the convicts were initiated by a law enforcement agency, as a result of which there was only an artificial simulation of the situation of committing an offense, which obviously could not cause damage to the state. According to the board, the pre-trial investigation body violated the requirements of Article 180 of the CPC, according to which sufficient data indicating signs of a criminal offense is the reason for the start of a pre-trial investigation, in the absence of circumstances precluding the proceedings in accordance with paragraph 23 of the NPVS dated June 29, 2017 No. 5 "On the procedure for criminal proceedings in Cassation The law does not require the court of cassation, when considering petitions, protests, and submissions, to make a judicial decision regarding those convicted in the case., which petitions, protests, and representations have not been filed.
At the same time, if their actions are inextricably linked to the actions of the persons against whom a petition has been filed, a protest has been brought, a submission to a verdict, a court order, and a change in the qualification of a criminal offense committed by them entails a change in the qualification of the actions of other convicts, or the termination of the case against them, the court has the right to review the verdict and decision. The court also applies to those convicts for whom petitions, protests, and representations have not been filed, provided that their situation does not worsen. Taking into account these circumstances, the cassation board considers that the criminal prosecution body has not obtained sufficient admissible evidence of the involvement of convicts K., S., B., Y., E. and N. in the attempted organization and complicity in the commission of actions to issue fictitious invoices without actually performing work, providing services, and shipping goods that caused major damage. Based on the above, the judicial Board for Criminal Cases of the Supreme Court overturned the verdict of the appellate instance against K., S., B., Y., E., N. The proceedings in this case were terminated due to the lack of evidence of a criminal offense. In accordance with article 39 of the CPC, K., S., B., Y., E., N. are recognized as having the right to compensation for damage caused by them as a result of illegal actions of the body conducting the criminal process. The representation of the Chairman of the Supreme Court of the Republic of Kazakhstan and the petition of the defender were satisfied.
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