Theft, that is, hidden embezzlement of other people's property

A criminal case is subject to termination in connection with the absence of a composition of a criminal offense in the act in accordance with paragraph 2) of the first part of Article 35 of the Criminal Code of the Republic of Kazakhstan dated June 2, 2020 by the verdict of the Sarysu District Court of Zhambyl region: D. not previously convicted, sentenced to 5 years of imprisonment under Part five of Article 28 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code), paragraph 3) of part four of Article 188 of the Criminal Code, serving a sentence in a medium security institution of the Penal correction system.  Civil defendants S., F., D. In general, 8,064,687 tenge was collected from M. in favor of the civil plaintiff "G" LLP, and in general from S., D. in favor of the civil plaintiff "g" LLP-5,844,915 tenge. 60,485 tenge and 58,449 tenge of state duty were collected from the civil defendant D., a forced payment of 50,500 tenge to the Victims ' Compensation Fund. By this verdict, petitions for judicial acts convicted in S., F., N., M. were not brought against them. By a court verdict, a group of convicted persons is found guilty of conspiring, illegal entry into industrial premises, assistance in the commission of theft on a particularly large scale, that is, secret embezzlement of other people's property, with advice, assistance in the provision of tools.

By the decision of the Judicial Board of the Zhambyl regional court for criminal cases dated August 20, 2020, the verdict was changed. The criminal activity of convicted D. is re-qualified by Article 432 of the criminal code, under which a sentence of 3 years of imprisonment is imposed, Article 63 of the criminal code is applied, the imposed punishment is considered conditional, and probation control is established for the entire term of the imposed sentence of imprisonment. The preventive measure in the form of custodial detention applied to convicted D. was canceled, and he was released from custody. The rest of the sentence against D. is left unchanged. In the petition of the lawyer zh., disagreeing with the judicial acts against the convicted D., asked for his acquittal due to the absence in the actions of the convicted D. of the composition of the criminal offense provided for in Article 432 of the Criminal Code, as well as exemption from payment of material damage collected by the verdict of the court of First Instance after proving that D. was not involved in theft. In accordance with paragraph 1) of the first part of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code), violations committed during the investigation or judicial review of a case, including the conviction of an innocent, are grounds for Cassation review of judicial acts that have entered into legal force. In accordance with Paragraph 8) of part three of Article 77 of the Constitution of the Republic of Kazakhstan, a judge should be guided by the principle that when applying the law, any suspicion of a person's guilt is considered in favor of the accused. However, on the part of the courts, this requirement of the law has not been fulfilled. Due to the inconsistency of the nodes of the court expressed in the verdict with the circumstances of the case and the incorrect application of the law, which led to the conviction of the innocent, the judicial acts against D. must be canceled, and the criminal case against him must be terminated due to the absence of a criminal offense.

Theft, that is, hidden embezzlement of other people's property

According to the materials of the criminal case, during the main trial, the convicted D. came with his father-in-law G. at about 10:00 on November 24, 2019, three S., F., M. came, S. asked for permission to strip copper cables in the courtyard of his house, said that he would pay for them, agreed to this proposal and gave permission, then he and S., F. loaded copper cables into a White Gazelle car and went to Shymkent, the next day they paid 30,000 tenge from S. M. A few days later, on November 28, 2019, at about 02:00 p.m. he called him, said that his car broke down on the way to the village of A. Burkitbayev, asked for help, and then, when he arrived in the village of A. Burkitbayev, a guy named N., M., whom S. did not know before, loaded the copper cables into the Niva car "Vaz 2121" and brought them home, peeled it, climbed into the car of a neighbor K. "Gazelle" and sent them to Shymkent, the next day he held 100,000 tenge in his hands, helped S. tow the car and "thank you for the use, he showed that he did not know that the copper cables were stolen. These answers of D. are fully supported by the answers given by the convicts S., M., N. At the same time, at the trial, the convicted S. D. indicated that he did not know that copper cables were a theft item.  Asked as a witness at the trial, D. On November 28, 2019, around 02:00 a.m., spouse D. was contacted by a citizen and talked to him, he got up and said that an acquaintance's car broke down, he had to help, he left in his Niva car, about 30 minutes later, the spouse came with three men, made them tea and went to bed, about a while later he went out to see voices after that, about 5-After 6 days, the spouse gave D. 30,000 tenge of money, and the guys who came in the past said that they were grateful for the use of electricity and "Bulgarian", showed that he and his spouse did not know that copper cables were stolen. Asked as a witness, G. drove home on November 24, 2019 in a Mercedes Benz car with F. and S., M., previously unknown to him, as it became known during the investigation.  when S. said that he would pay 5,000 tenge for the help of his son-in-law, then he went to D.'s house, when D. lived next to him, S. and F. asked if these cables were not stolen, they said that these cables were not stolen, they gave them from their place of work to their place of monthly payment, and at the same time D. told them that "I don't know," he said.

In accordance with paragraph 6 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016 No. 14" on some issues of application by courts of the legislation on complicity in crimes and liability for inducing criminal offenses", concealment of a crime means concealment (concealment) of a criminal, weapons and means of committing a crime, traces of a crime and evidence. The crime can be committed by hiding the person who committed it, providing him with shelter, transport, forged documents, changing his appearance and other actions in which he can hide. Hiding the means and weapons of a crime can mean destroying them, disfiguring them, hiding them where they cannot be found. In accordance with paragraph 33 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 13" on the practice of appellate consideration of criminal cases", courts of appellate instance when preparing a resolution should be strictly guided by the requirements of Article 443 of the CPC. In the descriptive and argumentative part of the resolution, it is necessary to comply with the requirements of the third part of Article 443 of the CPC, indicate the course and results of the investigation of the case, the grounds and evidence of the decision made by the court with reference to the law, have specific answers on the issues of substantiation or In case of violation or modification of the sentence, it is necessary to indicate why the evidence on the basis of the sentence was recognized as insufficient, what violations occurred, how they affected the essence of the sentence. However, the court of Appeal did not comply with these requirements, since the resolution does not specify that the actions mentioned were committed by D.

A criminal case is subject to termination in accordance with paragraph 2) of the first part of Article 35 of the criminal code due to the absence of the composition of a criminal offense in the act. Therefore, the judicial board considers that due to the absence in the actions of D. of the composition of the criminal offense provided for by Article 432 of the criminal code, on the basis of Paragraph 2) of the first part of Article 35 of the criminal code, judicial acts are canceled and the case is subject to termination. In accordance with the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005 No. 1" on consideration of a civil claim in criminal proceedings "and Paragraph 1) of part six of Article 170 of the CPC, a civil claim filed by LLP" G " to D. is subject to neglect. In accordance with Articles 37, 39 of the CPC, D. has the right to apply to the court in accordance with the procedure provided for in Chapter 4 of the CPC with a claim for compensation for damage caused by illegal actions of the body conducting criminal proceedings.  The judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan canceled the judicial acts of local courts in relation to the convicted D. the criminal case was terminated on the basis of Paragraph 2) of the first part of Article 35 of the CPC due to the absence in the actions of D. of the composition of the criminal offense provided for by Article 432 of the Criminal Code. The civil claim of " G " LLP against D. was left without consideration. In accordance with Chapter 4 of the CPC, D. is recognized as entitled to compensate for damage caused by illegal actions of the body conducting criminal proceedings. The petition of lawyer zh. was satisfied. 

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