Unreasonably found guilty of abuse of office
By the verdict of the District court No. 2 of the Kokpektinsky district of the East Kazakhstan region dated November 13, 2020: Ye., who had no previous criminal record, was convicted under paragraph 3) of part 4 of Article 188 of the Criminal Code of the Republic of Kazakhstan (hereinafter – to 6 years of imprisonment, under paragraph 3) of part 4 of Article 361 of the Criminal Code to 4 years of imprisonment with life imprisonment for holding positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, the authorized body for regulation, control and supervision of the financial market and financial organizations, government organizations and quasi-public sector entities. By partial addition of punishments . The punishment was finally imposed in the form of imprisonment for a period of 7 (seven) years with life imprisonment for the right to hold positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, the authorized body for regulation, control and supervision of the financial market and financial organizations, government organizations and quasi-public sector entities with serving sentences in institutions of the medium-security penal system. The measure of restraint in the form of a written undertaking not to leave and proper behavior has been changed, i.e. taken into custody from the courtroom. The term of serving the sentence is calculated from November 13, 2020. The time of detention from March 27 to March 28, 2020 and from November 13, 2020 until the entry into force of the sentence is calculated for the period of serving a custodial sentence, based on one day of detention for one and a half days of serving a sentence in institutions of the medium-security penal system.
It was decided to deprive Ye. of the special rank of police major. B., who had no previous criminal record, was sentenced under paragraph 3) of part 4 of Article 188 of the Criminal Code to 6 years in prison to serve his sentence in an institution of the medium-security penal system. The measure of restraint against B. in the form of a written undertaking not to leave and proper behavior was changed, he was taken into custody from the courtroom. The term of serving the sentence is calculated from November 13, 2020. The time of detention from November 13, 2020, until the entry into force of the sentence, based on one day of detention for one and a half days of serving a sentence in a medium-security facility, is counted in the term of serving a custodial sentence. It was decided to recover from E. and B. in solidarity in favor of the agricultural production cooperative "Taim" material damage in the amount of 7 000 950 tenge, representative expenses in the amount of 380 000 tenge, a total of 7 380 950 tenge. It was decided to recover from E. and B. in solidarity: - in favor of T. material damage in the amount of 633,300 tenge; - in favor of R. material damage in the amount of 2,137,500 tenge; - in favor of S. material damage in the amount of 332,500 tenge; - in favor of K. material damage in the amount of 2,165,500 tenge; - in favor of A. material damage in the amount of 965,800 tenge. It was decided to collect from E. and B. in a shared manner a state fee to the state revenue in the amount of 272,374 tenge; procedural costs in the amount of 840 tenge. It was decided to collect from E. and B. to the Compensation Fund for Victims, a compulsory payment from each in the amount of twenty monthly calculation indices, that is, 48,100 tenge each. The fate of the physical evidence is resolved. By the verdict of the court, E. and B. were found guilty of secretly stealing other people's property in a group of persons by prior agreement, repeatedly, on an especially large scale, and E. also of using their official powers contrary to the interests of the service in order to extract benefits and advantages for themselves and others, which entailed grave consequences.
Unreasonably found guilty of abuse of office
By a decision of the Judicial Board for Criminal Cases of the East Kazakhstan Regional Court dated January 22, 2021, the sentence against E. was changed: - in accordance with paragraph 13) of part 1 of Article 54 of the Criminal Code, the commission of a criminal offense by a person who violated the oath was recognized as a circumstance aggravating criminal liability and punishment of convicted E.; - in the second paragraph of the operative part of the verdict, the words "with life imprisonment for the right to hold positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, government organizations and quasi-public sector entities" were replaced by the following words: "with life imprisonment for the right to hold positions in the civil service, judges, government agencies local government, the National Bank of the Republic of Kazakhstan and its departments, state organizations and organizatioin the second paragraph of the operative part of the verdict, the words "with life imprisonment for the right to hold positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, government organizations and quasi-publior entities" were replaced by the following wors: "with life imprisonment for the right to hold positions in the civil service, judges, government agencies local government, the National Bank of the Republic of Kazakhstan and its departments, state organizations and organizations, in the authorized capital of which the state's share is more than fifty percent, including in national management holdings, national holdings, national companies, national development institutions, of which the state is a shareholder, their subsidiaries, more than fifty percent of the voting shares (participation interests) owned by them, as well as in legal entities, more than fifty percent voting shares (participation interests) of which belong to the specified subsidiaries"; - in the first paragraph, the descriptive part of the sentence after the word "T" is supplemented with the w- in the first paragraph, the descriptive part of the sentence after the word "T" is supplemented with the words: "the criminal case against which was terminated in accordance with paragraph 11) of part 1 of Article 35 of the Criminal Code in connection with death"; - the last paragraph of the descriptive part of the sentence after the words "represented by Director K." is supplemented with the words "for a total of 7 722,000 tenge". The rest of the verdict was left unchanged. In the protest, the Acting Prosecutor General of the Republic of Kazakhstan requests judicial acts against E. amend, terminate the proceedings under Part 4 of Article 361 of the Criminal Code on the basis of paragamend, terminate the proceedings und Part 4 of Article 361 of the Criminal Code on the basis of paragraph 2) of Part 1 of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) in the absence of a criminal offense, cancel the application of part 3 of Article 58 of the Criminal Code, i.e. convicted under paragraph 3) of part 4 of Article 188 of the Criminal Code to 6 years in prison, leave the rest of the judicial acts unchanged. In the petition, T.'s lawyer, in the interests of the convicted E., indicating the grounds for disagreement with the judicial acts against E., asks to cancel them due to their unreasonableness and acquit E. In the petition and the addendum to it, the convicted E. asks to be acquitted because of his unlawful conviction, referring to the circumstances confirming his innocence.
In the petition, K.'s lawyer, in the interests of the convicted B., asks for the annulment of the judicial acts against B., considering him to be unlawfully convicted, with the referral of the criminal case for a new trial to the Ust-KamIn the petition, K.'s lawyer, in the interests of the convicted B., asks for the annulment of the judicial acts against B., considering him to be unlawfully convicted, the referral of the criminal case for a new trial to the Ust-Kamenogorsk City Court or with the acquittal of B. for the lack of proof of the charges against him. The court's conclusions on the evidence of the guilt of convicts E. and B. the repeated theft of horses in the amount specifthe repeated theft of horses in the amount specified in the court verdict, under the circumstances set out in the judicial acts, is based on evidence comprehensively, fully and objectively examined at the court session, and corresponds to the actual circumstances of the case. Thus, it follows from the testimony of witnesses J., S., T. that around the end of October 2018, they sold 26 heads of horses belonging to B. and Witness M. on the market in Shymkent. At the hearing, she explained that in 2018 she worked as a veterinary paramedic in the village of Ulanskoye. On October 22-23, 2018, B. and E. came to work for herthe hearing, she explained that in 2018 she worked as a veterinary paramedic in the village of Ulanskoye. On October 22-23, 2018, B. and E. came to work for her, who asked her for a certificate for transporting 26 heads of horses in the city of Shymkent, she drew up such a certificate indicating S.'s data, which B. provided to her from the interrogation protocol. Witness T. observed that on about October 25-26, 2018, while in the mountains checking for livestock, at the request of B., he drove up to the split, where he saw two mares. B. and E. were standing next to the split in a Niva company car. At this time, B. He asked to bring a blowtorch and a brand, after which he personally branded two mares and said that these horses were his own, owned by his father. However, as follows from the materials of the criminal case, these horses were subsequently identified by the victims and, according to the seizure protocols dated November 17-19, 2018, horses in the amount of 3 heads were seized from convict B., which had previously been stolen from victim K. on the night of September 27-28, 2018, from victim Z. on the night of from October 22 to October 23, 2018. From the protocol of the confrontation between B. and E. It can be seen that these horses were brought to the herd belonging to B. by E. and asked to put the brand of the farm on them, which was not denied by E. According to the response of the State Department of the Akim Office of the Ayyrtau rural District, E.'s father did not have registered horses in private ownership for the first half of 2018, whereas for the second half of 2018 The number of registered horses has already reached 16 heads. From the testimony of a witness under the pseudonym I. It follows that on October 24, 2018, at about 04:30 hours, while searching for his missing horses, at a distance of 20-25 meters, he saw two unknown men on horseback driving more than 10 horses. He followed them at a distance so they couldn't see him. After staying all day, they drove the horses to the highway in the evening. A UAZ police car was waiting for them on the highway, to which two unknown men drov Visibility was good, as snow had already fallen and the moon was bright. The arguments of the defense that these statements should be considered inadmissible due to their unreliability should be considered untenable on the following grounds. Thus, by a resolution of the pre-trial investigation body dated June 14, 2019, an eyewitness to the theft of horses, citizen "Kh." in accordance with his statement, in order to ensure the safety of this person, his family members and close relatives, the pseudonym "Karanbayev I.P." was assigned with limited access to information about this person. As follows from the materials of the criminal case, the pre-trial investigation body had grounds for this. In this regard, conducting any investigative and other actions, including an investigative experiment with his participation, involving recognition of the protected person for the rest of those present by voice, accent and external data: gender, nationality, age, height, physique, posture, gait, is unacceptable in order to ensure the safety of this person, members of the his family and close relatives. In addition, as reasonably stated in the judicial acts, in accordance with parts 2, 4 of Article 98, Article 4 of the CPC, the presiding judge has the right to interrogate a witness outside of visual observation by other participants in the trial, including via video link. It follows from the materials of the criminal case that in the main trial, the court granted the participants in the trial, including the defense, the right to ask questions to witness I.P. Karanbaev, which they used, and the written answers of this witness to these questions from the defense and the representative of the victim of the PUK "Taim" are available in the materials of the criminal case.. The arguments of the defense that the testimony of this person about the weather conditions on October 24, 2018 does not correspond to the data provided by Kazhydromet are unfounded, since the defense provided weather data for the city of Ust-Kamenogorsk, meanwhile, data on weather conditions in the area where the horse theft was committed differ significantly from the natural conditions. the named city. In addition, the guilt of convicts E. and B. in committing horse theft is proved by a combination of other evidence, an objective and comprehensive analysis of which is given in the verdict. Under the circumstances described, what E. and B. had done under paragraph 3) of part 4 of Article 188 of the Criminal Code was correctly qualified, the penalty was imposed in proportion to what they had done, and therefore the arguments of the defense's petitions about the innocence of the convicted E. and B. in repeated secret theft of horses are untenable.
The arguments of the defense about the lack of jurisdiction of this criminal case to the courts of the Kokpektinsky district of the East Kazakhstan region cannot be considered justified on the following grounds. Thus, according to part 3 of Article 314 of the CPC, if criminal offenses are committed in different places, the case is considered by the court at the place of completion of the investigation. The place of completion of the investigation is the place where the indictment is drawn up. As follows from the materials of the criminal case, the pre-trial investigation body drew up the indictment in this criminal case on August 5, 2020 in the city of Ust-Kamenogorsk, East Kazakhstan region, and sent it to the prosecutor of the Kokpektinsky district of East Kazakhstan region to resolve the issue of approving the indictment and sending it to court for consideration on the merits. In such circumstances: if the pre-trial investigation body and the prosecutor's office are located in different localities, when determining the place where the investigation ends and the indictment is drawn up, the prosecutor's powers provided for in articles 301-302 of the CPC should also be taken into account, only after the implementation of which the indictment either becomes legally binding or is actually recognized as an unacceptable procedural document. According to part 1 of Article 302 of the CPC, based on the results of studying the materials of a criminal case, the prosecutor performs one of the following actions:: 1) approves the indictment; 2) draws up a new indictment; 3) directs the criminal case to the person conducting the pre-trial investigation for additional investigation; 4) terminates the criminal case in full or in part on the grounds provided for in Articles 35 and 36 of this Code; 5) at its discretion or at the request of the defense decides on the conclusion of a procedural 6) supplements or reduces the list of persons to be subpoenaed, with the exception of the list of defense witnesses.
Unreasonably found guilty of abuse of office
Thus, in accordance with this provision of the law, the prosecutor has the right either to approve the indictment or not to approve it, drawing up a new indictment, or sending the case for additional investigation, or terminating the case in whole or in part, or concluding a procedural agreement. At the same time, if a new indictment is drawn up by the prosecutor of the prosecutor's office located in a locality other than the pre-trial investigation body, the location of this prosecutor's office will be considered the place of completion of the investigation, according to part 3 of Article 314 of the CPC. In this regard, this conclusion should also apply to cases where the prosecutor approves an indictment in a similar situation: the location of the pre-trial investigation body and the prosecutor's office in different localities. In this criminal case, the indictment was approved on August 13, 2020 by the prosecutor of the Kokpektinsky district of the East Kazakhstan region, whose resolution dated August 15, 2020 E. – under paragraph 3) of part 4 of Article 361, paragraph 3) of part 4 of Article 188 of the Criminal Code, B. - under paragraph 3) of part 4 of Article 188 of the Criminal Code, they were put on trial and the criminal case against them was reasonably sent for consideration on the merits to the Kokpektinsky District Court of the East Kazakhstan region. At the same time, Ye. was unreasonably found guilty of abuse of office. Thus, according to the requirements of Article 397 of the CPC, the descriptive and motivational part of the conviction must contain a description of the criminal offense that the court found proven and of which the defendant was found guilty. The Supreme Court of the Republic of Kazakhstan clarified that, according to paragraph 16 of the regulatory decree No. 4 dated April 20, 2018 "On the judicial verdict", one of the conditions for the decision of a lawful verdict is the compliance of the descriptive and motivational part with the evidence examined at the court session.
When drafting this part, the court is obliged to comply with the requirements of article 397 of the CPC. In violation of the specified requirements of the law and the regulatory decree, the descriptive part of the sentence against E. essentially describes only the criminal act provided for in paragraph 3) of part 4 of Article 188 of the Criminal Code, i.e. the secret theft of someone else's property. Meanwhile, the court, in the operative part of the verdict, found Ye guilty both under paragraph 3) of part 4 of Article 188 of the Criminal Code and paragraph 3) of part 4 of Article 361 of the Criminal Code. In addition, the pre-trial investigation body has not obtained evidence of the use of E. their official powers when committing horse theft.
Thus, the conviction of E. under paragraph 3) of part 4 of Article 361 of the Criminal Code is unfounded, which entails the cancellation of judicial acts in this part with the termination of proceedings under paragraph 3) of part 4 of Article 361 of the Criminal Code on the basis of paragraph 2) of part 1 of Article 35 of the CPC due to the absence of a criminal offense. The Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan has changed the judicial acts of local courts in relation to E. and with regard to his conviction under paragraph 4 of Article 361 of the Criminal Code, judicial acts were canceled, the criminal proceedings under paragraph 3) of part 4 of Article 361 of the Criminal Code on the basis of paragraph 2) of part 1 of Article 35 of the CPC were terminated due to the absence of elements of a criminal offense in his actions. In relation to E., the application of part 3 of Article 58 of the Criminal Code was abolished. It is decided to count E. convicted under paragraph 3) of part 4 of Article 188 of the Criminal Code to 6 years of imprisonment while serving his sentence in an institution of the medium-security penal system. The rest of the judicial acts against convicted E. remained unchanged. The judicial acts against convicted B. were also left unchanged. The protest of the Acting Prosecutor General of the Republic of Kazakhstan is satisfied. The petitions of the convicted E. and the lawyer T. were partially satisfied, the petition of the lawyer K. was left without satisfaction.
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