Defense of a Lawyer on corruption offenses (crimes)
By the verdict of the District court No. 3 of the Oktyabrsky district of the city of Karaganda, Karaganda region, dated July 3, 2019: M., who had no previous criminal record, was convicted under part 2 of Article 366 of the Criminal Code of the Republic of Kazakhstan (hereinafter – Criminal Code) and he was sentenced to a fine of KZT 15,000,000, without confiscation of property, with life imprisonment for holding positions in the civil service, judges, 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, and 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. M. was deprived of the special rank of "police major".
Defense of a Lawyer on corruption offenses (crimes)
48,100 tenge were recovered from M. to the Compensation Fund for Victims. The issue of physical evidence has been resolved. By the verdict of the court, M. was found guilty of the fact that, being an official, intentionally using his official position, through an intermediary, for illegal actions in favor of a bribe giver, he received a bribe in the form of money in a significant amount totaling 300,000 tenge. By the resolution of the Judicial Board for Criminal Cases of the Karaganda Regional Court dated October 31, 2019, the verdict of the court was changed. M.'s actions they were reclassified from part 2 of Article 366 of the Criminal Code to paragraph 2) of Part 3 of Article 190 of the Criminal Code and were punishable by a fine of 3,000,000 tenge with life imprisonment for holding positions in the civil service, judges, the National Bank of the Republic of Kazakhstan and its departments, state organizations and organizations with a share in the authorized capital The state accounts for more than fifty percent, including in national management holdings, national holdings, national companies, and 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 deadline for payment of the fine is set within 6 months from the date of entry into force of the sentence. The indication of the surname "N" was excluded from the descriptive and motivational part of the verdict, it was decided to consider "committing a crime with another person." The rest of the verdict remains unchanged. By a private resolution of the judicial board dated October 31, 2019, it was brought to the attention of the Prosecutor of the Karaganda region and the head of the Department of the Agency of the National Bureau for Combating Corruption in the Karaganda region about the violation of the norms of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), about the negligent attitude of investigator I. to the investigation of this case and the lack of proper supervision by the procedural prosecutor to take appropriate measures. measures. In the protest, the Acting Prosecutor General of the Republic of Kazakhstan believes that the decision of the judicial board regarding the reclassification of M.'s actions is unjustified, and the private decision is not in accordance with the law, and requests to amend the decision of the judicial Board for Criminal Cases of the Karaganda Regional Court dated October 31, 2019 and cancel the private decision.
Defense of a Lawyer on corruption offenses (crimes)
The conclusions of the court of appeal do not correspond to the factual circumstances of the case, are illegal and unfounded, therefore, the decision of the judicial board regarding M. regarding the reclassification of his actions and the private court decision are subject to cancellation. Thus, according to part 1 of Article 24 of the CPC, the court, the prosecutor, the investigator, the inquirer are obliged to take all measures provided by law for a comprehensive, complete and objective investigation of the circumstances necessary and sufficient for the proper resolution of the case. However, the specified requirements of the law were not complied with by the court of appeal. As established, the only reason for the retraining was that M. had received a bribe while performing his duties as an investigator, but the order to assign him the duties of an investigator was not attached to the case file, was not included in the inventory and was not reflected in the indictment. A fake order No. 112 was attached to the case file, which M. used to realize his criminal goals. On the same grounds, the court issued a private ruling. It has been reliably established that by order of the head of the Department of Internal Affairs of the Karaganda region dated January 14, 2016 No. 8l/S. M. was appointed to the post of head of the Department of inquiry of the Kirov Department of Internal Affairs.Karaganda. On August 25, 2018, M., having accepted the criminal case against A. under part 2 of Article 345 of the Criminal Code, ordered a preliminary investigation. Then M., in order to receive a bribe from A., introduced her to his lawyer friend N. In turn, N., acting in collusion with M., informed A. about the need to transfer 600,000 tenge, of which 300,000 should be given to M. for the termination of the criminal case. The remaining 300,000 tenge was intended for N. as payment for his intermediary services. In this regard, A. handed over 300,000 tenge to N., saying that she would transfer the remaining 300,000 tenge after the termination of the criminal case. On September 24, 2018, the acting investigator of the Kirov OP M. issued a decision against A. to terminate the criminal case due to the absence of elements of a criminal offense in her actions. On October 2, 2018, N. handed over to A. a copy of the resolution on the termination of the criminal case and received 300,000 tenge, which was handed over to M. on October 11, 2018 by the prosecutor's office of the Oktyabrsky district on the same day.In Karaganda, the decision to terminate the criminal case against A. was canceled due to its prematurity, biased investigation and illegal termination of the criminal case, and the case was sent to the Department of Inquiry of the Karaganda region Police Department for organizing a pre-trial investigation. On December 24, 2018, the criminal case was terminated on the basis of part 1 of Article 68 of the Criminal Code in connection with the reconciliation of the parties. On March 31, 2019, when A. returned funds in the amount of 100,000 tenge, M. was detained. During the main trial, M. He fully admitted his guilt on the charges and described in detail the circumstances of receiving a bribe from A. At the request of the participating prosecutor to verify M.'s arguments. The fact that he was not aware of the existence of an order assigning him the duties of an investigator, the court of appeal sent a request to the DP of the Karaganda region. According to the information provided, the head of the Karaganda police department issued order No. 529 assigning the duties of investigators to all interrogators of the Department of Internal Affairs of the region in the period from July 1 to September 30, 2018, which was registered with the personnel service of the police Department on July 31, 2018 (paragraph 6 of the order assigning the duties of an investigator to the head of the Department of inquiry of the Kirov OP M.). The deputy head of the Kirov police department was questioned as a witness. and the investigator of the SU DP region K. It was shown that orders to assign the duties of investigators to all interrogators of the region are issued quarterly, since all interrogators take up duty as part of the SOG as acting investigators. The issuance of such an order is due to the frequent need to appoint preliminary investigations in cases of inquiry, and this is a well-known fact for employees of investigation and inquiry units. The testimony of A. and K. regarding the frequency of publication of the above-mentioned orders is confirmed by the logs of registration of orders examined by the court. In 2018, 4 orders were issued (№№18, 235, 529, 678) on assigning the duties of investigators to interrogators. According to paragraph 3 of the job description of the head of the inquiry department, M. set the duty time of the interrogators in the investigative and operational groups, provided them with time to rest after duty. By virtue of paragraph 8 of the job description, M. was charged with the duty to organize the investigation of criminal cases through the line of inquiry, to study cases and give instructions on them. In this regard, M.'s arguments that he was not aware of the issuance of Order No. 529 are untenable. During the specified period of time, the latter held the position of head of the Department of inquiry of the Kirov Department of Internal Affairs.Karaganda. By virtue of his position, M. could not have been unaware of the documents legitimizing his actions and the work of his subordinates.
Defense of a Lawyer on corruption offenses (crimes)
In accordance with paragraph 5 of Article 114 of the CPC, the circumstances established without evidence include a person's knowledge of his official and professional duties. Thus, M.'s arguments in the court of appeal are a way of defending against the charges in order to avoid a more severe punishment. The conclusions of the court of appeal that objectively existing order No. 529 of July 31, 2018 cannot be taken into account are untenable, as it is not attached to the case file, is not included in the inventory, and the court should not collect additional evidence of the defendant's guilt or innocence, or eliminate gaps in the pre-trial investigation. According to part 5 of Article 429 of the CPC, the court of appeal, according to the rules prescribed for the court of first instance, examines additional materials submitted by the parties or requested at their request, expert opinions received, and interrogates persons summoned to the meeting. Within the meaning of paragraph 7) of part 1 of Article 430 of the CPC, the court of appeal has the right to perform any actions necessary to ensure the completeness, comprehensiveness and objectivity of the study of all case materials and the establishment of the truth in the case. In the case under consideration, at the request of the participating prosecutor, the court of appeal requested information from the Police Department. The court received order No. 529 dated July 31, 2018, which was investigated and attached to the materials of the criminal case. Thus, the court of appeal reliably confirmed that, in fact, at the time of the commission of the crime, M. was legally acting as an investigator. At the same time, his intent was to receive a bribe for illegal actions. Under such circumstances, the acts of M. The court of first instance correctly qualified, under part 2 of Article 366 of the Criminal Code, that an official had received a bribe in the form of money, through an intermediary, in a significant amount, for abusing his official powers in favor of the bribe giver. By virtue of this, the judicial board of the Supreme Court considers the protest arguments to be justified and subject to satisfaction.
Defense of a Lawyer on corruption offenses (crimes)
In connection with the cancellation of the court's decision regarding the reclassification of M.'s actions to paragraph 2) of part 3 of Article 190 of the Criminal Code, the private decision of the judicial board dated October 31, 2019 is also subject to cancellation due to its illegality. The surname "N." was excluded from the descriptive and motivational part of the verdict, and it was correctly indicated as "committing a crime with another person", since the case against him was separated into separate proceedings. In this part, the decision of the judicial board must be left unchanged. Based on the above, the judicial Board for Criminal Cases of the Supreme Court changed the decision of the appellate instance against M. and overturned it regarding the reclassification of M.'s actions from part 2 of Article 366 of the Criminal Code to paragraph 2) of part 3 of Article 190 of the Criminal Code, with the imposition of a fine of ten times the amount of stolen property in the amount of 3,000,000 tenge. It was decided to consider M. convicted under part 2 of Article 366 of the Criminal Code to a fine of fifty times the amount of a bribe - 15,000,000 tenge, without confiscation of property, with life imprisonment for the right to hold these positions. The rest of the judicial acts remained unchanged. The private decision of the judicial board of October 31, 2019 was canceled. The protest of the Acting Prosecutor General of the Republic of Kazakhstan is satisfied.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
