When the money transferred to a person in the form of a bribe turned out to be fake or partially imitated banknotes, the actions of the recipient of the bribe should be qualified as an attempt to receive the stipulated amount of the bribe.

By the verdict of the Burabay District Court of the Akmola region dated June 25, 2018: I., who had no previous criminal record, was convicted under part 2 of Article 366 of the Criminal Code of the Republic of Kazakhstan (hereinafter – CC) to 3 years and 6 months of imprisonment while serving a sentence in an institution of the medium-security penal system with life imprisonment for holding positions in the civil service, judges, local governments, the National Bank of the Republic of Kazakhstan and its departments, state organizations and organizations in whose authorized capital 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) of which belong to them, as well as in legal entities, more than fifty percent of the voting shares (participation interests) of which belong to these subsidiaries. By the verdict of the court, I. was found guilty of being the director of the Republican Rehabilitation Center "B" of the Ministry of Health of the Republic of Kazakhstan (hereinafter referred to as the Center), on May 25, 2018, in Burabai received from D. Burabai for his general patronage and unhindered fulfillment of obligations under the contract dated May 3, 2018 No. 117 for the state purchase of nutrition services for the Center's patients. a bribe in the form of cash in the amount of 5,000,000 tenge. The verdict was not reviewed on appeal. In the protest, the Prosecutor General of the Republic of Kazakhstan, without disputing the evidence of the convict's guilt, believes that I.'s actions under part 2 of Article 366 of the Criminal Code were incorrectly qualified. In addition, he is not an official or a representative of the authorities. The court went beyond the transaction, imposing a more severe additional punishment with a list of all types of certain positions or occupations of certain activities provided for in part 2 of Article 50 of the Criminal Code. Requests to cancel the verdict of the court and send the criminal case for a new judicial review to the court of first instance.

When the money transferred to a person in the form of a bribe turned out to be fake or partially imitated banknotes, the actions of the recipient of the bribe should be qualified as an attempt to receive the stipulated amount of the bribe.

According to paragraphs 3.5 of part 1 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan, one of the grounds for cassation review of court verdicts and decisions that have entered into force is the incorrect qualification of the convicted person's act and the incorrect application of criminal law, which resulted in the incorrect imposition of criminal punishment. Such grounds in the case have been established by studying the case materials. Thus, it follows from the materials of the criminal case that after D. applied to the Anti-Corruption Service for the Burabay region, in order to fix the illegal actions of I. The funds were handed over. According to the protocol of the investigative action dated May 24, 2018, funds in the amount of 5,000,000 tenge were examined, processed and handed over to D., of which 480,000 tenge were presented to the NBPC in the Akmola region, 50,000 tenge were presented to D. and 4,470,000 tenge with a face value of 10,000 tenge in the amount of 447 pieces of the AA 8009294 series were banknotes, imitating the banknotes of the Republic of Kazakhstan. D. transferred the above-mentioned funds as a bribe to I., from whom, according to the protocol of the inspection of the scene of the incident dated May 24, 2018, they were seized in full. In accordance with paragraph 16 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the practice of considering certain corruption crimes" in cases where money transferred to a person in the form of a bribe turned out to be counterfeit or partially imitated banknotes, the actions of the recipient should be qualified as an attempt to receive a conditional amount of a bribe. In such circumstances, the criminal prosecution body and the court should have qualified I.'s actions under part 3 of Article 24, part 2 of Article 366 of the Criminal Code as an attempt to receive a bribe. Also, the qualification of a convicted person's act on the basis of receiving a bribe as an official is not based on the law and the materials of the criminal case. According to paragraph 26) of Article 3 of the Criminal Code, an official is a person who permanently, temporarily or by special authority performs the functions of a government representative or performs organizational, administrative or administrative functions in state bodies, local governments, as well as in the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan.

The case materials established that the Center, previously headed by I., is a state-owned enterprise on the right of economic management, created for the rehabilitation of patients with diseases of the bronchopulmonary system. Also, the convicted I. was not a representative of the authorities, since, by virtue of the requirements of paragraph 9) of Article 3 of the Criminal Code, he did not have administrative powers with respect to persons who were not dependent on him. According to paragraph 28) of Article 3 of the Criminal Code, a person who performs managerial functions in a state organization is considered to be equivalent to persons authorized to perform state functions. I. headed the Republican Rehabilitation Center Burabai, which did not have the status of a state body or a local government body, but was a state organization established to carry out activities in the field of healthcare, in the organizational and legal form of the enterprise. Therefore, he is a person equivalent to persons authorized to perform state functions. Under the terms of the deal, the prosecutor petitioned the court to appoint I., in accordance with part 2 of Article 366 of the Criminal Code, a sentence of 3 years and 6 months in prison to be served in an institution of the medium-security penal system with life imprisonment. However, contrary to the requirements of paragraphs 23, 24 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 7, 2016 No. 4 "On the practice of judicial review of criminal cases in conciliation proceedings", the court went beyond the transaction, imposing a more severe additional punishment listing all types of certain positions or occupations of certain activities provided for in part 2 of Article 50. UK. Therefore, unnecessarily imposed additional punishments should be excluded. According to the requirements of part 3 of Article 55 of the Criminal Code for cases of accelerated pre-trial investigation, as well as cases in which all the conditions of the procedural agreement are fulfilled, the term or amount of the main type of punishment for a criminal offense may not exceed half of the maximum term or amount provided for in the relevant article of the Special Part of this Code. The criminal case against I. was submitted to the court with a procedural agreement and considered in the conciliation proceedings. Therefore, And. The punishment should be imposed taking into account the requirements of part 3 of Article 55, part 3 of Article 56 of the Criminal Code. According to paragraph 3 of part 5 of Article 46 of the Criminal Code, persons convicted of crimes provided for in Chapter 15 of this Code, in case of full compensation for the damage caused by the crime, are sentenced to serve their imprisonment in institutions of the minimum security penal system. I. convicted of a corruption offense provided for in Chapter 15 of the Criminal Code. There is no damage in this case, therefore, he must serve his sentence in an institution of the minimum security penal system. In the conciliation proceedings, the court has the right to make a decision not provided for by the plea agreement, if this does not worsen the defendant's situation and does not violate his right to defense.

In this regard, the cassation board considers it possible, without sending the case for a new judicial review, to change the sentence to a less serious charge with a reduced sentence. In terms of additional punishment, appoint him in accordance with the procedural agreement. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the verdict of the court of first instance in respect of I.I.'s actions. they were reclassified from part 2 of Article 366 of the Criminal Code to part 3 of Article 24, part 2 of Article 366 of the Criminal Code, according to which 2 years and 6 months of imprisonment were imposed with the application of part 3 of Article 56, part 3 of Article 55 of the Criminal Code, with serving a sentence in an institution of the minimum security penal system, with life imprisonment the service. Additional penalties imposed in the form of life imprisonment of the right to hold judicial positions in local government bodies, the National Bank of the Republic of Kazakhstan and its departments, state organizations and organizations in whose authorized capital the state's share is more than fifty percent, including 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) of which belong to them, as well as in legal entities, more than fifty percent of the voting shares (participation interests) of which belong to these subsidiaries. The rest of the verdict was left unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan was partially satisfied. 

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