In the absence of a complaint of the victim in relation to a crime considered in a private and public manner, criminal prosecution is not allowed and a criminal case is not initiated
By the verdict of the Baikonur City Court of Kyzylorda region dated November 21, 2012: K., previously not convicted, with the confiscation of property under Paragraph "B" of Part 3 of Article 176 of the criminal code, deprivation of the right to act as an accountant for 1 year, imprisonment for 5 years, applying Article 63 of the criminal code, considering the punishment assigned to him conditional, a probationary period of 1 year is established. In favor of the karmakshinsky District Department of Education, K. collected 836,393 tenge. By the verdict of the court, K. was found guilty of a large amount of waste of other people's property entrusted to him, using his official position. The Appellate Judicial Board for criminal cases of the Kyzylorda Regional Court changed the verdict of the court and again differentiated the criminal behavior of K. from item "B" of Part 3 of Article 176 of the Criminal Code to item "B" of Part 2 of this article and imposed a fine in the amount of 500 monthly calculation indices. The Cassation Judicial Board of the Kyzylorda Regional Court left the judicial acts unchanged. The Convicted K. in the appeals of the Supreme Court to the supervisory judicial board, K. stated that he did not commit any crimes, was convicted illegally, that the resolution of the Government of the Republic of Kazakhstan dated 29.11.2007 No. 1400 obliges to accrue 25 percent of bonuses to educational specialists working in rural areas, and 25 percent of bonuses to specialist employees (deputy director for economic affairs, chief accountant, accountants) who are not related to education is provided with the permission of the district maslikhat, the decision of the district Akim on the payment of bonuses is attached to the criminal case, the court annulled the decisions and asked to dismiss the criminal case from production.
Having discussed the arguments specified in the application, hearing the opinion of the prosecutor on the violation of court decisions and referral to the criminal case for revision, a thorough examination and supervision of the evidence in the criminal case, the judicial board considers that on the basis of the following circumstances, the court decisions on the convicted K. are canceled and the criminal case is subject to termination. According to Article 24 of the CPC, the court is obliged to take all measures provided for by law for a comprehensive full and objective study of the circumstances necessary and sufficient for the correct resolution of the case. The annex to the resolution of the Government of the Republic of Kazakhstan dated December 29, 2007 No. 1400 "on the system of remuneration of civil employees, employees of organizations maintained at the expense of the state budget, employees of state-owned enterprises" states: specialists in health care, education, culture and sports working in rural areas, by decision of local authorized bodies, are paid a higher, not less than 25% bonus compared to the rates of specialists engaged in such activities in urban conditions. The materials in the criminal case are attached to the decision of the extraordinary 41st Session of the karmaksha district maslikhat dated August 25, 2011 on approval of the list of positions of specialists in health care, Social Security, Education, Culture and sports working in rural (rural) areas. In this regard, the resolution of the akimat of Karmakshinsky district dated November 2, 2011 indicated that the list of these positions should be determined in accordance with the annex.
In the absence of a complaint of the victim in relation to a crime considered in a private and public manner, criminal prosecution is not allowed and a criminal case is not initiated
The reason for initiating a criminal case was the materials of the financial police investigation of the targeted spending of funds allocated from the budget for the period from 2008 to 2012 of a secondary school located in the village of Toretam, Karmaksha district, the legality of calculating wages and other payments to employees. Based on the results of the certified audit audit, it was established that K. caused damage in the amount of 1,023,030 tenge from the funds entrusted to him in the period from 2008 to 2012. In Court K. in the period from 2008 to 2012, when he fully admitted the charges and held the post of Chief Accountant of the secondary school, he replied that in the period from 2008 to 2012, the school's accountants transferred to the accounts of M., K., T. without the decision of local authorities, that is, without the decision of the district maslikhat, a 25% bonus, a month's allowance when granting leave. The court differentiated the actions of K. in Paragraph "B" of Part 3 of Article 176 of the criminal code. The court of Appeal, after checking the evidence in the criminal case, found that in 2008-2009 there was no decision of the district maslikhat on the payment of a 25% surcharge for K., M., K., T., But the basis was the tariffication approved by the heads of the Planning Department of the district administration, the district training department, K. only in the period from 2010 to 2011 did he find out that he illegally received a bonus of 25% not specified in the tariff, that is, during this period, and re-categorized this action in Paragraph "B" of Part 2 of Article 176 of the criminal code, concluding that he used his official position and wasted the state funds entrusted to him. In accordance with Article 34 of the criminal code, Part 2 of Article 176 of the criminal code refers to a crime considered in a private and public manner, in the absence of a complaint from the victim, criminal prosecution is not allowed and a criminal case is not initiated. Therefore, in a criminal case in which the appellate court found the convicted K. guilty, in accordance with paragraph 5 of Part 1 of Article 37 of the code of criminal procedure, if the victim did not have a complaint, the criminal case should not have been initiated, and the initiated case should have been terminated. However, the court of Appeal, in the process of considering a criminal case in connection with K., neglected these requirements of the Criminal Procedure Law. In this regard, the supervisory judicial board considers that the decisions of the court on the convicted person K. are canceled due to illegal and unreasonable, and the criminal case on him is subject to termination.
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
