A circumstance precluding criminal prosecution
By the verdict of the Saryagash District Court of South Kazakhstan region dated December 6, 2016: B., who had no previous criminal record, was sentenced under part 5 of Article 28, paragraphs 2), 4), 5) of part 2 of Article 234 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to a fine of 600 monthly calculation indices in the amount of 1 189,200 tenge with confiscation of property. By the verdict of court B. He was found guilty of complicity, that is, assistance to economic smuggling - the illegal movement of goods across the customs border of the Customs Union using forged certificates of conformity on an especially large scale, committed in a group of persons in prior agreement with other persons who used their official position. The case was not considered on appeal. In the protest, the Prosecutor General of the Republic of Kazakhstan, without disputing the evidence of the convict's guilt, indicates that B. He was requested for extradition as a person who had committed a crime under paragraph 1 of part 3 of Article 367 of the Criminal Code (bribery committed by a group of persons by prior agreement), and was issued with consent to be prosecuted under this article. In this regard, B.'s conviction under part 5 of Article 28, paragraphs 2), 4), 5) of part 2 of Article 234 of the Criminal Code is illegal. Requests the court verdict to cancel and terminate the criminal case on the basis of part 8 of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC). According to paragraph 1) of part 1 of Article 485 of the CPC, the grounds for cassation review of judicial acts that have entered into force, as specified in part one of Article 484 of this Code, are violations of constitutional rights and freedoms of citizens committed during the investigation or judicial review of a case, or improper application of criminal and criminal procedure laws that led to the conviction of an innocent person. Such grounds in the case have been established by studying the case materials. In accordance with part 1 of Article 582 of the CPC, the Minsk (Article 66) and Chisinau (Articles 80-81) Conventions, as well as interstate treaties, Agreements of the Republic of Kazakhstan with other countries, a person extradited by a foreign state cannot be prosecuted or punished for another crime unrelated to by extradition, without the consent of the issuing State.
A circumstance precluding criminal prosecution
International treaties ratified in accordance with part 3 of Article 1 by the Republic of Kazakhstan of the Criminal Code have priority over the Criminal Code. On November 26, 2015, the Al-Farabi District Court of Shymkent, South Kazakhstan region, authorized an international search for B. B. He was detained on April 27, 2016 in Moscow, Russian Federation. On May 28, 2016, the Deputy Prosecutor General of the Republic of Kazakhstan, I., sent a petition to the Prosecutor General's Office of the Russian Federation with an attached conclusion and materials on the extradition of B. to carry out criminal prosecution for the commission of a crime provided for in paragraph 1) part 3 of Article 367 of the Criminal Code. On September 21, 2016, the Prosecutor General's Office of the Russian Federation granted the request of the Prosecutor General's Office of the Republic of Kazakhstan, B. was extradited to the requested party. B. was requested for extradition as a person who committed a crime under paragraph 1 of part 3 of Article 367 of the Criminal Code (bribery committed by a group of persons by prior agreement), and was issued with consent to criminal prosecution according to this article. He was not charged with economic smuggling. By a decision of the pre-trial investigation body dated November 22, 2016, proceedings against suspect B. regarding the commission of a criminal offense under paragraph 1 of part 3 of Article 367 of the Criminal Code were terminated due to the absence of elements of a criminal offense in the act. On the same day, a new resolution was drawn up against B. on the qualification of the suspect's act under part 5 of Article 28, paragraphs 2), 4), 5) of part 2 of Article 234 of the Criminal Code (aiding economic smuggling).
However, subsequent actions to qualify his actions and conviction for the specified criminal offense are illegal, contrary to the Convention, since he was not extradited for prosecution under this article and the question was not raised. Thus, the court's verdict is subject to cancellation with the termination of the proceedings on the basis of part 8 of Article 35 of the CPC in connection with the discovery of circumstances precluding criminal prosecution. According to the requirement of part 1 of Article 37 of the CPC, a person acquitted by a court, as well as a suspect, accused, or defendant, against whom a court or criminal prosecution authority has issued a decision to terminate a criminal case on the grounds provided for in paragraphs 1), 2), 5), 6), 7) and 8) the first part of article 35 of this Code, are subject to rehabilitation, that is, restoration of their rights and may not be subject to any restrictions on the rights and freedoms guaranteed by the Constitution of the Republic of Kazakhstan. In accordance with part 1 of Article 39 of the CPC, having made a decision on the full or partial rehabilitation of a person, the body conducting the criminal process must recognize his right to compensation for harm. Based on the above, the judicial board for Criminal Cases of the Supreme Court overturned the verdict of the court of first instance, and the criminal proceedings against B. under part 5 of Article 28, paragraphs 2), 4), 5) of part 2 of Article 234 of the Criminal Code were terminated on the basis of part 8 of Article 35 of the CPC due to the discovery of circumstances precluding criminal prosecution. harassment. In accordance with the procedure provided for in Chapter 4 of the CPC, it was recognized for B. the right to rehabilitation and compensation for damage caused by illegal actions of bodies conducting criminal proceedings. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied.
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