Conditional conviction does not apply to persons convicted of a corruption crime

By the verdict of the Abay District Court of Shymkent dated July 04, 2018: K. previously not convicted, with the second part of Article 361 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to restrict freedom for 2 years and 6 months with the deprivation of life for holding positions in the civil service; with the second part of Article 369 of the Criminal Code to restrict freedom for 1 year with the deprivation of life for holding positions in the civil service; with the second part of Article 371 of the criminal code, with the deprivation of 3 years for holding positions in the civil service, sentenced to 3 years in prison.  On the basis of the second, fifth parts of Article 58 of the criminal code, by absorbing a less severe punishment into a more severe punishment, and by absorbing an additional punishment imposed for offenses that make up the aggregate to the main punishment imposed on the totality of crimes, the final sentence of 3 years of imprisonment with deprivation of life for Applying Article 63 of the criminal code, considering the imposed punishment conditional, probation control is established for all appointed terms of imprisonment. 32,100 tenge of procedural costs were collected from K. to the state revenue. The fate of material evidence in the case is decided in accordance with the procedure established by Article 118 of the Criminal Procedure Code of the Republic of Kazakhstan.

By the court verdict, K. was found guilty of abuse of official powers, official forgery and negligence in the period from May to December 2016, while holding the position of head of the Department for work with disabled people and veterans of the state institution" Department for coordination of employment and social programs of the South Kazakhstan region " (hereinafter referred to as the Department). The verdict was not reviewed on appeal. In the protest of the Prosecutor General, without challenging the proof of guilt of K., convicted of the criminal offense described in the sentence, and the differentiation of his criminal act, paying attention to the court's incorrect application of the criminal law, restricting him to 1 year of imprisonment with life deprivation of the right to hold positions specified in the list in the second part of Article 361 of the criminal code, in the second part of Article 50 of this code, in the first part of Article 369 of the criminal code, in the second part of Article 50 of this code, in the first part of Article 369 of the Criminal Code, with distinction, On the basis of Parts 2), 5) of Article 58 of the criminal code, the sentence of restriction of liberty for 3 years with deprivation of the right to hold the positions specified in the second part of Article 50 of the criminal code for 3 years with deprivation of the right to hold the positions specified in the second part of Article 50 for life. As it was found out in court, in accordance with the order of the head of the Department T. No. 11-R dated February 23, 2016 "on the Commission", annex No. 1 to the contract No. 23 dated February 5, 2016, a commission was created for the acceptance of typhlotechnical equipment for disabled people in need in the South Kazakhstan region (hereinafter-South Kazakhstan region) for a total amount of 99,616,940 tenge, K. and other employees were appointed as the chairman of the commission. According to this order, in accordance with the act of acceptance dated May 17, 2016, the chairman of the commission K. and the head of the Department of material and technical equipment and operation, approved as members of the commission U., Chief Specialist of the Department for work with disabled people and veterans K., Chief Specialist of the accounting department Sh. (signed instead K.), chairman of the public Association "Kazakh Society of the blind" A. accepted tiflotechnical equipment for a total amount of 99,337,354 tenge, including "computer tiflocomplex" 167 pieces X 526,034 tenge = 87,847,678 tenge.

In accordance with the order of the head of the department T. No. 126-R dated September 6, 2016 "on the Commission", under the contract No. 101 (No. 102) dated July 28, 2016, a commission was created for the acceptance of tiflotechnical equipment for a total cost of 165,319,000 tenge, K. and other employees were appointed as the chairman of the commission. In accordance with this order, in accordance with the act of acceptance dated September 14, 2016, the chairman of the commission K. and members of the commission accepted tiflotechnical equipment for a total cost of 165,319,000 tenge, including "computer tiflocomplex" for 83 pieces X 645,000 tenge = 53,535,000 tenge.  According to the acts of acceptance dated May 17 and September 14, 2016, on the basis of two contracts, 250 laptops were accepted instead of tiflotechnical devices for 264,656,354 tenge, 250 PCs for 141,382,678 tenge. K., being an official and as the chairman of the commission, instead of computers with the licensed program "JAWS for Windows" installed in accordance with the technical specifications, did not compare the prices of 250 laptops with the unlicensed program "JAWS for Windows" installed by the supplier, did not pay attention to their quality, did not determine the correctness of the unlicensed program installed in laptops, under the pretext of the reporting period (the reporting period), instructing the members of the commission, their subordinates to accept the goods received, as a result of dishonest attitude to the activities of their duties, negligence in the interests of the state protected by law, which led to serious consequences. As well as K. in accordance with the contract No. 105 dated August 05, 2016, concluded by the department with the Baidibek corporate fund of the public Association "Kazakh Society of the blind" for the purchase of 385 copies of signatures for a total cost of 43,860,000 tenge, AR-Rohim disabled people will be delivered to the amount of 136,000 tenge, based on the increased price indicated in only one fake price list received by the Department under unknown circumstances, deliberately enter false information in the official document sent to the Department of Economy and budget planning of South Kazakhstan region, and submit an additional budget application he was a liar. In addition, in accordance with the order of the head of the Department T. No. 127-R dated September 6, 2016 "on the Commission", the contract No. 105 dated August 5, 2016 established a commission for the reception of signatures for a total amount of 43,860,000 tenge, and K. and other employees were appointed as the chairman of the commission.

In turn, the total cost of 260 copies of signatures accepted by the chairman of the commission K. and members of the commission on the basis of a contract concluded for a total amount of 43,860,000 Tenge, the difference from 260 copies of signatures X 73,000 tenge = 18,980,000 tenge, based on the cost determined by the examination (35 360 000 – 18 980 000) = 16 380 000 tenge allowed inefficient spending of budget funds and caused significant damage to the interests of the state protected by law. The court conducted a comprehensive judicial investigation of the case in compliance with the requirements of the law, based on a set of convincing evidence collected by the pre-trial investigation body and studied directly at the court session, objectively evaluated, which does not raise any doubts in terms of consistency, correctly came to the conclusion that K. is guilty of committing the criminal act described in the court verdict.  The guilt of K. in the commission of these criminal offenses, along with his answers with a partial confession of his guilt, witnesses T., B., E., S., H. it is fully confirmed by the answers of others, protocols for conducting an inspection of the scene, obtaining and examining objects, a number of forensic expert opinions, as well as other case documents. The court gave a legally justified assessment of the criminal offense actions of K. and correctly ranked his actions by the second parts of articles 361, 369 and 371 of the criminal code. When imposing a punishment on K., The court took into account the nature and degree of danger to society of the criminal offense, his personality, behavior before and after the commission of the offense, mitigating and aggravating circumstances of liability and punishment, as well as the impact of the imposed punishment on the correction of the convicted person and the condition of his family. However, when the court imposed the main punishment on K., the following violations were committed. In accordance with paragraph 29 of Article 3 of the criminal code, corruption crimes are attributed-actions provided for in articles 361, 369 of the criminal code. In the totality of criminal offenses in accordance with the requirements of part one of Article 13 of the Criminal Code, a person is criminally liable for each committed Act under the relevant article or part of the article of this code. According to the requirements of part six of Article 63 of the PF, conditional conviction does not apply to persons convicted of a corruption crime. However, the court unreasonably imposed a suspended sentence on the convicted K., applying Article 63 of the criminal code. In accordance with the amendments and additions made by the law of the Republic of Kazakhstan dated July 12, 2018" on introducing amendments and additions to some legislative acts of the Republic of Kazakhstan on the issues of improving criminal, Criminal Procedure legislation and the activities of law enforcement and special state bodies", the second parts of articles 361, 369 of the criminal code are excluded. At the same time, this law amended the sanction of the second part of Article 371 of the Criminal Code, which provides for, in addition to imprisonment, penalties-"imposing a fine in the amount of up to four thousand monthly calculation indices, or engaging in correctional labor in the same amount, or public works for a period of up to one thousand hours, or restriction of freedom for a period of up to four years." In this case, under the requirements of Article 6 of the criminal code, the court's verdict is changed and subject to alignment with the changes made by this law.

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