Unjustified conviction for abuse of official authority due to lack of investigation of the circumstances of the case

By the verdict of the District court No. 02 of the Almaty district of Astana dated February 09, 2012: S. - sentenced under Part 1 of Article 307 of the Criminal Code to 2 years of restriction of liberty. She was released from her sentence on the basis of paragraph 3, Part 3, Article 2 of the Law "On Amnesty in connection with the twentieth anniversary of the State Independence of the Republic of Kazakhstan" dated December 28, 2011. By the verdict of the Court of S. found guilty of abuse of official authority, that is, using a person authorized to perform government functions or a person equivalent to him/her official powers contrary to the interests of the service, in order to extract benefits and advantages for themselves or other persons or organizations, or harming other persons or organizations if this entailed a significant violation of rights and legitimate interests. citizens or organizations, or legally protected interests of society or the state. By the decisions of the Appellate Board of the Astana City Court dated March 30, 2012, the verdict of the court remained unchanged. By the decision of the Cassation Judicial Board of the Astana City Court dated November 14, 2012, the above court decisions were left unchanged.

In the petition, lawyer J. He pointed out that the court, when considering the criminal case, did not fully and objectively investigate all the circumstances, asked to cancel the court decisions that had taken place and acquit S. for the lack of corpus delicti in her actions. Having studied the materials of the criminal case on the basis of the petition of the defense, the supervisory judicial board of the Supreme Court came to the conclusion that the court decisions against S. were subject to cancellation, with the termination of the proceedings due to the absence of corpus delicti in her actions on the following grounds. Article 307 of the Criminal Code provides for liability for the use by a person authorized to perform state functions or a person equated to him of his official powers, contrary to the interests of the service, in order to extract benefits and advantages for himself or other persons or organizations, or to harm other persons or organizations, if this has entailed a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state. Therefore, when deciding on the presence or absence of elements of this crime in the actions of an official, it is necessary to establish the range and nature of his official rights and duties, as set out in legislative or other normative legal acts, charters, regulations, etc.

Unjustified conviction for abuse of official authority due to lack of investigation of the circumstances of the case

It can be seen from the case file that by the order of the Head of the Tax Department for Astana city dated February 02, 2011, S. was appointed to the position of a specialist in the department of the center for receiving and processing information from individuals of the Almaty District Tax Administration and at the time of issuing the secondary tax returns, she kept records of vehicle tax taxpayers. This is confirmed by the testimony of the chief specialist of the Quality Control Department for the provision of public services of the Tax Department in Astana, Zh., who showed that S. she kept records of taxpayers of the vehicle tax, that is, she was not engaged in the issuance of RNN. At the same time, she explained that T.'s login was assigned on February 28, 2011, therefore, from the moment of the order, i.e. from February 08, 2011, he worked under the username S. There were 3 computers running under her username. At the same time, S. could not enter the RNN and issue vehicle tax certificates in another department under her username. S. asked her why she was allowed to work under her username, but this was the decision of the deputy head of the Tax Department, D. It also follows from the testimony of witness D. that T. He worked in the RNN issuing department without an order, under the username S. In all 4 episodes of the issuance of secondary RNN, the court based the conclusions about S.'s guilt on the testimony of T. However, the following can be seen from the case materials. T. in his testimony, describing the events of the same day, first showed that on a piece of paper there were RNN for three surnames, and then showed that there were four surnames. Upon the issue of the secondary RNN e. he denies his involvement, although according to expert opinion No. 3708 dated 09/23/2011, these data were entered into the INIS on 03/02/2011, i.e. on the day the unknown guy contacted him.

According to the episode of issuing a secondary RNN to A., T. testified that an unknown guy allegedly approached S., although she herself did not approach him with this request. He did not enter the data, but only issued the RNN, whereas it follows from expert opinion No. 3708 dated 09/23/2011 that the data on A. was entered under the username T.Thus, the court based the charges on the contradictory and unstable testimony of T. Further, it is seen from the case file that T. had access to S.'s login and the ability to use it both before 02/28/2011 and after that date, including 02/03/2011. Only after the shift With. the password to the login (the date of the change has not been set), T. was forced to use his username, which happened in the case of RNN E. and A. At the same time, T. testified about S.'s alleged involvement in these episodes. According to the expert opinion No. 3979, the handwritten entries in the taxpayer's certificate of K., R. and M. in the columns "date of issue and berylgen kuni" were also made by T.

Witness O., having changed her testimony at the hearing, stated that she had slandered S. in the preliminary investigation, and explained that she had issued the RNN at her request only because the RNN was filled in under the username of S. Witness D. testified that T., upon initial clarification of the circumstances, denied his involvement in issuing double RNNs, but after a visit to the Department He pointed out the involvement of S. to the financial police. In accordance with the requirements of Article 24 of the CPC, the court is obliged to take all necessary measures for a comprehensive, complete and objective investigation of the circumstances necessary and sufficient for the proper resolution of the case. Unjustified conviction for abuse of official authority due to the lack of investigation of the circumstances, by virtue of the provisions of the law, a guilty verdict is issued if the court has indisputably established that the defendant committed a crime, he is guilty of committing it, and the guilt is confirmed by evidence collected in compliance with the requirements of the law. It can be seen from the materials of the criminal case that the criminal cases №11710105100387, 11710105100386, 11701051000385, 11710105100353, 1170105100325,11710105100324, 11710105100323 initiated against T. under Part 1 of Article 307 of the Criminal Code.

There is no decision in the case file to institute criminal proceedings against S. Thus, the analysis of the evidence on which the court was based does not give grounds to conclude that S. was involved in the issuance of secondary RNN, and she acquired material benefits in one way or another, that is, acted in order to extract benefits and advantages for herself, and thus caused material damage to the state. Consequently, without establishing the facts of abuse, S. having only the fact of re-registration with the assignment of the RNN only on the very dubious testimony of T., the court had no grounds to convict under Part 1 of art.307, in connection with which, the board considered that the court's verdict should be overturned with the termination of the case due to the absence of corpus delicti in her actions. The Supervisory Judicial Board of the Supreme Court is the verdict of the District Court No. 2 of the Almaty district of Astana, the decisions of the appellate and cassation judicial boards of the Astana City Court in respect of convicted S. She canceled and terminated the criminal case for lack of evidence of a crime. 

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