The criminal case was dismissed due to the absence of the composition of the criminal offense
By the verdict of the Court No. 2 of Ust – Kamenogorsk city of East Kazakhstan region dated September 7, 2016: previously convicted, sentenced to 1 year of restriction of freedom by the third part of Article 130 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code). He is assigned probation control and assigned a number of duties. By a court verdict, zh. T. was found guilty of disseminating knowingly false information that infringes on his honor and dignity or discredits him. By the decision of the judicial board for criminal cases of the East Kazakhstan regional court dated October 28, 2016, the court's verdict was left unchanged. In the submission of the chairman of the Supreme Court (hereinafter referred to as the submission), the obligation to prove the guilt of a person in committing a criminal offense in accordance with part three of Article 23 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code) and to refute his arguments defending himself – he asked for a review of the legality of judicial acts against him in the Cassation judicial board, indicating that the criminal case against the convicted zh. does not provide sufficient evidence proving his guilt, but on the contrary refuting his motives for innocence in this criminal offense.
The criminal case was dismissed due to the absence of the composition of the criminal offense
As it turned out from the case documents, on July 6, 2013, the convict purchased a Volkswagen T-4 car with state number F390CNN for 8 8,000 from P. (hereinafter referred to as the car). Over time, he noticed many malfunctions in this car and realized that it could not be used. Therefore, he demanded that P. return his money. Thus, P. J. promised to fulfill the stated requirements, return the money. But over time, he abandoned the promise he had made. Then J. he came to the conclusion that the car was fraudulently sold to P. and that, among other people, Inspector T. of the Department of internal affairs of East Kazakhstan region OAP TEZHB was involved in this. According to J., during the deregistration and registration of the car, there were signs of fraud in the actions of P., R., etc., T. headed this group. In the period from 2014 to 2016, zh. he applied to the police, the prosecutor's office, the Department of the agency of the Republic of Kazakhstan for Civil Service Affairs and anti-corruption in the East Kazakhstan region with a request to identify T. as a participant in a crime and bring them to criminal responsibility for fraud. According to the conclusion of the court of first instance, the private prosecutor zh. disseminated knowingly false information that infringed on the honor and dignity of T. or discredited him. By the court verdict zh. under the third part of Article 130 of the Criminal Code, which is found guilty, criminal liability may arise only if a person is accused of committing a corruption, serious or especially serious crime, which led to the same serious consequences. And since, according to the requirements of the criminal law, the subjective side of slander is characterized by direct intent, it is imperative to establish that the guilty person knowingly understood and desired the falsity of the information he is reporting, as well as the fact that the information he is distributing harms the honor or reputation of another person. Such listed circumstances are not clearly established in the criminal case against zh. In addition, if a citizen, despite the falsity of the data he is distributing, is convinced that they are true, he cannot be held criminally liable for libel. According to the case materials, although zh. appealed to the listed competent authorities that his legal rights and interests were violated by T.'s actions, he did not intend to slander the private prosecutor T. And the indication of T. zh. as a participant in this crime, and in his actions there were signs of fraud, should be considered his subjective assessment of these circumstances. At the same time, in accordance with the third part of Article 23 of the CPC, the task of proving the guilt of a person in committing a criminal offense and refuting his arguments defending himself is assigned to the criminal prosecution authorities, and in court proceedings-to public and private prosecutors.
From this point of view of the law, sufficient evidence proving the guilt of zh., convicted in this criminal case by the third part of Article 130 of the criminal code, on the contrary, refuting his motives for innocence in this crime, is not provided by the private prosecutor T. at all. In this case, the conclusion of the court on the presence of corpus delicti in the actions of zh. provided for in the third part of Article 130 of the criminal code is unreasonable, therefore, judicial acts against him are subject to cancellation, and a criminal case against him is subject to termination on the basis of Paragraph 2) of the first part of Article 35 of the criminal code. At the same time, in accordance with Article 39 of the CPC, zh. must be recognized as having the right to compensate for damage caused by illegal actions of the body conducting criminal proceedings. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan has canceled the judicial acts of local courts in relation to the convicted zh., and the criminal case against zh. under the third part of Article 130 of the criminal code has been terminated on the basis of Paragraph 2) of the first part of Article 35 of the criminal code. In accordance with Chapter 4 of the CPC, it is recognized that zh. has the right to compensate for damage caused by illegal actions of the body conducting criminal proceedings. The proposal of the chairman of the Supreme Court was satisfied.
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