There is no composition of a criminal offense on the guilt of a person in official forgery

By the verdict of the Ural City Court of the West Kazakhstan region dated September 9, 2016: A., who had no previous criminal record, was sentenced under part 2 of Article 314 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) (as amended in 1997) to a fine of 2,000 monthly calculation indices – 3,704,000 tenge with deprivation of the right to hold office in government agencies for a period of 5 years. By the verdict of the court, A. was found guilty of committing official forgery, that is, of making deliberately false information in official documents in order to extract benefits and advantages for organizations. The verdict was upheld by the decision of the Appellate judicial Board of the West Kazakhstan Regional Court dated October 19, 2016. In the protest, the Prosecutor General of the Republic of Kazakhstan points out that the judicial acts that took place against convicted A. are illegal and are subject to cancellation with the termination of the case due to the absence of elements of a criminal offense in his actions, since the conclusions of the court set out in the verdict do not correspond to the factual circumstances of the case, and the criminal law that led to the conviction of an innocent person was incorrectly applied. In accordance with article 388 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), a sentence is recognized as lawful and justified if it is passed in compliance with all requirements of the law and on the basis of the law, based on a comprehensive and objective examination of the evidence presented to the court at a court hearing. The same is stated in paragraph 2 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On the court verdict". However, the verdict against A. does not meet the specified requirements. In this case, there is a discrepancy between the conclusions of the court and the actual circumstances of the case, which led to the conviction of an innocent person. According to the court's conclusions, A., being the head of the Ural City Consumer Protection Department of the Consumer Protection Department of the West Kazakhstan Region (hereinafter referred to as the Department), reliably knew that the pharmacy of A LLP (hereinafter referred to as the Pharmacy) did not comply with the established Sanitary Rules "Sanitary and epidemiological requirements for facilities in the field of medicines, medical devices and medical equipment", approved by Resolution of the Government of the Republic of Kazakhstan dated January 17, 2012 No. 91 (hereinafter referred to as Sanitary Rules), namely – in terms of the composition, area of the premises, equipment and the immediate condition of the facility, he signed a positive sanitary and epidemiological conclusion No. 129 dated August 15, 2014 (hereinafter referred to as the Positive Conclusion) for the subsequent receipt by the specified Pharmacy of an annex to the license to engage in pharmaceutical activities, that is, he deliberately entered false information into official documents in order to extract benefits and advantages for organizations. According to the disposition of Article 314 of the Criminal Code, criminal liability arises for entering deliberately false information into official documents in order to extract benefits and advantages for oneself or other persons or organizations, or harm other persons or organizations. At the same time, official forgery is committed with direct intent and a special purpose – to extract benefits and advantages for oneself or other persons or organizations.

There is no composition of a criminal offense on the guilt of a person in official forgery

The pre-trial investigation body has not obtained evidence that A. committed official forgery in order to extract advantages in favor of the Pharmacy, and the case materials do not confirm the direction of his intent to commit official forgery in order to obtain benefits or advantages for himself or for the Pharmacy. That is, this element of the crime has not been proven. A., without denying his signature on the Positive conclusion, consistently and consistently showed that he did not know the owners of the Pharmacy, its representatives did not contact him. R. did not inform him about the discrepancy in the area of the Pharmacy. He did not give instructions to issue a positive opinion to either K. or R.. He received this report for signature through the office, after examining and not seeing any violations, he signed it. I did not receive any material benefits from this. The witness S., questioned in court, testified that until August 2014 he worked as the head of the State Institution "Department for Consumer Protection in the West Kazakhstan region" (hereinafter referred to as the Department). His wife has been the sole founder and director of the Pharmacy since 2008. I did not deal with the registration and collection of documentation, and I did not ask any of the employees of the Department or the Department for this. Witness F. She testified in court that in 2014 she applied to the Department to obtain a sanitary and epidemiological conclusion. After an inspection of the premises by a specialist, she was given a sanitary and epidemiological report, which she submitted to the State Institution "Health Department" for obtaining a license. I handled the paperwork for the Pharmacy myself. I did not know that the area of the Pharmacy's premises did not meet the established requirements. In his testimony, K. She claimed that F. had contacted her for advice on obtaining a sanitary and epidemiological report on a pharmacy. She helped F. with the completion of the application, which was written to her the next day. Having entrusted the execution to R., she instructed her to speed up the inspection. K. did not deny that R. had reported to her about the identified inconsistencies at the facility, but claimed that she had instructed A. to report this for a decision. Witness R. testified that immediately after receiving the statement from the director of LLP "A", K. called her and asked her to speed up the issuance of a positive opinion, because the facility belongs to the wife of the former head of the Consumer Protection Department, S. After going out for inspection, she discovered violations and reported them to K. After a while, K. gave her a copy of the technical passport for the specified facility, indicating the size of the area of 18.6 square meters.m. Ignoring the change in the size of the pharmacy area, she issued a positive opinion, which she put in a folder for signature and left in the waiting room. R. retracted her initial testimony, explaining that she had been forced to file a complaint against A. under threat of arrest. Despite this, the court took a one-sided approach to the examination of factual data, taking into account only the accusing evidence and leaving the circumstances justifying A. without a legal assessment. According to paragraph 12 of the Supreme Court's normative resolution No. 4 of April 20, 2006 "On certain issues of evaluating evidence in criminal cases", a court verdict cannot be recognized as lawful if it is made only on the basis of the victim's testimony, which has not been analyzed, compared for reliability and not confirmed by other evidence. The court's conclusions on A.'s guilt They are based on the initial testimony of witness R. and are not supported by other objective evidence in the case, and the testimony of witness K. They do not confirm A.'s guilt in committing a crime. On the contrary, the court reliably established that K. knew the owners of the pharmacy directly, and it was she who instructed R. to issue a report quickly. Moreover, R. informed K. about the pharmacy's non-compliance with the requirements of Sanitary Regulations.

There is no composition of a criminal offense on the guilt of a person in official forgery

At the same time, A.'s awareness of these points has not been established by the case materials. Thus, the court's conclusions about A.'s guilt in official forgery are unfounded and are not supported by a set of sufficient and reliable evidence. In addition, it should be noted that the interests of the civil service are the object of official forgery provided for in Article 314 of the Criminal Code. Qualifying the actions of A. According to part 2 of Article 314 of the Criminal Code, as an official forgery out of self-interest, in order to extract benefits and advantages for the Pharmacy, the courts also assumed that a positive opinion was an official document. It is also impossible to agree with this conclusion, since, within the meaning of the law, official documents representing rights and relieving of duties are the subject of official forgery. Only in the presence of this feature is the composition of a criminal offense formed. Not every document coming from a government agency should be recognized as an official document that is the subject of official forgery. Only the document that gave some rights and exempted from any duties can be the subject of official forgery. The court also did not take into account that the composition of official forgery is formal, therefore, first of all, the degree of public danger must be taken into account. It was established that the violation that prevented the issuance of a Positive conclusion was the discrepancy in the area of the trading floor. Instead of the required 15 sq.m. it had only 13.6 sq.m. Meanwhile, according to paragraphs 2.3.1. of the "Building Regulations of the Republic of Kazakhstan 3.02-02.2009" dated January 6, 2010, the Pharmacy belongs to the category of public buildings and structures, and in accordance with paragraph 4.3. reduction of the area standards from those established for premises built into residential buildings is allowed up to 15%, that is, in this case, at least 13.5 sq.m. The area of the Pharmacy's sales floor was 13.6 sq.m., that is, 0.1 sq.m. more than the permissible norm. In accordance with the provisions of Article 4 of the Law of the Republic of Kazakhstan "On Legal Acts", building regulations and sanitary regulations are at the same level and other regulations must be taken into account when applying the rules in the contiguous area. Thus, the reduction of the area allowed by building codes and regulations should have been taken into account during the sanitary and epidemiological examination and when issuing an opinion. According to paragraph 5 of the Law of the Republic of Kazakhstan "On Licensing" dated January 11, 2007 No. 214 (hereinafter referred to as the Law "On Licensing"), state bodies, based on the licensor's request, send a response to the relevant licensor within 10 working days on the applicant's compliance or non–compliance with the requirements. In case of non-submission by the state authorities within the time limits established by this Law, the issuance of the license is considered agreed.

Meanwhile, this Law has become invalid due to the adoption of the Law of the Republic of Kazakhstan dated May 16, 2014 No. 202-V "On Permits and Notifications" with amendments and additions dated May 9, 2016 (hereinafter referred to as the Law "On Permits and Notifications"), which establishes a notifying nature for pharmacies, that is, a person must only notify the state authorities before the start of the activity or action, and, consequently, sanitary and epidemiological examinations are not carried out and conclusions are not issued. Despite the fact that the Law "On Permits and Notifications" entered into force after 6 months from the date of its official publication, A.'s actions fall under the requirements of Article 6 of the Criminal Code, which improves his situation. As established, the sanitary and epidemiological report on the Pharmacy was issued on August 15, 2014, that is, after the adoption of the Law "On Permits and Notifications" and, accordingly, the report and examination should not have been conducted and issued. In addition, paragraph 9 of Appendix No. 2 of the "Standard of Public Services "Issuance of a license for pharmaceutical activities" to the Order of the Minister of Health and Social Development of the Republic of Kazakhstan dated April 28, 2015 No. 293 establishes an exhaustive list of documents, among which there are no requirements for a permit from the sanitary and epidemiological service in the form of a certificate or other document. Thus, a positive conclusion was not required to issue a license either under the Law "On Licensing" in July 2014, or under the Law "On Permits and Notifications", which established the state standard for licensing pharmaceutical activities. In accordance with the requirements of article 43 of the Law of the Republic of Kazakhstan "On Legal Acts", which establishes the retroactive effect of a normative legal act, if, after committing an offense, responsibility for it is abolished or mitigated by law, or the latter eliminates the duties imposed on citizens or improves their situation, a new law is applied.

It should also be borne in mind that in accordance with the disposition of Article 361 of the Criminal Code, according to which, when drafting in relation to A. The state prosecutor dismissed the charges, and abuse of official authority is recognized as intentional actions by an official aimed at using his official position contrary to the interests of the service in order to extract benefits and advantages for himself or other persons and organizations, or harm other persons and organizations, if this entailed a significant violation of the rights and legitimate interests of citizens or organizations. or legally protected interests of society or the state. The presence of the above-mentioned consequences is a prerequisite for criminal prosecution under part 2 of Article 314 of the Criminal Code. Therefore, the judicial board considers the court's conclusions that A., using the rights and powers granted to him, committed acts contrary to his official duties to be unfounded. In this regard, it was decided to cancel the judicial acts, and terminate the criminal case under part 2 of Article 314 of the Criminal Code against A. due to the absence of elements of a criminal offense in his actions. The private decision of the court of first instance in respect of R. was also canceled. and the decision of the court of appeal to leave this particular ruling unchanged. In accordance with the procedure provided for in Chapter 4 of the CPC, A. was recognized as having 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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