Attempted crime Due to the fact that the convicted person did not cross the border, his actions should be qualified as attempted smuggling.

By the verdict of the Kordai District Court of Zhambyl region dated July 10, 2017: Z., who had no previous criminal record, was sentenced under paragraph 5 of part 2 of Article 286 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 6 years in prison, under part 3 of Article 296 of the Criminal Code to community service for a period of 240 hours. Based on part 3 of Article 58 of the Criminal Code, 6 years of imprisonment were imposed for a combination of criminal offenses by absorbing a less severe punishment with a more severe one. In accordance with part 1 of Article 63 of the Criminal Code, the imposed sentence was recognized as conditional with the establishment of probation control for the entire term of the conviction, with the imposition of duties provided for by criminal law. By the verdict of the court Z. He was found guilty of illegally acquiring, transporting, storing on a large scale a narcotic drug, cannabis resin, weighing 5.72 grams, and also of illegally transporting the specified narcotic drug on a large scale across the State border of the Republic of Kazakhstan.

Attempted crime Due to the fact that the convicted person did not cross the border, his actions should be qualified as attempted smuggling.

By a decision of the judicial board for Criminal Cases of the Zhambyl Regional Court dated October 10, 2017, the verdict was left unchanged, with the exception of the words "and aggravating liability and punishment" from the descriptive and motivational part of the verdict as erroneously indicated. In the submission, the Chairman of the Supreme Court, without disputing the qualification of the actions of convicted Z. According to part 3 of Article 296 of the Criminal Code, he believes that the court gave an incorrect legal assessment of the actions of the convicted person under paragraph 5 of part 2 of Article 286 of the Criminal Code, which led to an incorrect imposition of punishment, since the court found that convict Z., who was carrying a large-scale narcotic drug, was detained and did not cross the State Border of the Republic of Kazakhstan. In this regard, the submission raises the issue of reclassifying the actions of the convicted person to part 3 of Article 24, paragraph 5 of part 2 of Article 286 of the Criminal Code and changing the imposed sentence in accordance with the rules of part 3 of Article 56, part 3 of Article 55 of the Criminal Code, which may not exceed 4 years and 6 months of imprisonment. According to part 18 of Article 494 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), on the recommendation of the Chairman of the Supreme Court, the cassation instance fully verifies the establishment of the factual circumstances of the case and the application of the criminal law, compliance with the norms of the criminal procedure law during the proceedings, the legality and validity of the verdict or decision of the court of first instance, appeal, cassation instances. The Chairman of the Supreme Court submitted a submission on the cassation review of judicial acts in this case on the basis of paragraphs 3.5 of part 1 of Article 485 of the CPC in connection with the incorrect qualification of the convicted person's act and the incorrect imposition of punishment. The court correctly established the factual circumstances of the case, according to which the convicted Z. On June 4, 2017, at the intersection of Ostrovsky and Stroitelnaya streets in Bishkek, the Kyrgyz Republic, he illegally purchased a narcotic drug, cannabis resin, weighing 5.72 grams, on a large scale for personal use. After which Z. On the same day, in order to illegally transport this narcotic drug across the State border of the Republic of Kazakhstan, he arrived by taxi at the Kordai checkpoint, where, during border control, during a personal search, a narcotic drug, cannabis resin, weighing 5.72 grams, in large quantities, was found and seized in his underwear.. These facts are confirmed by the protocol of Z.'s personal search. and the seizure of the narcotic drug, the testimony of witnesses about the circumstances of the seizure of the specified substance, the expert opinion, which determined that the substance found and seized from Z., is a narcotic drug – cannabis resin, weighing 5.72 grams.

According to Z.'s testimony, he purchased the narcotic drug from an unknown person in the Kyrgyz Republic for personal consumption and hid it in his underwear. When he passed the State border of the Republic of Kazakhstan, he was detained and a narcotic drug was seized. The evidence provided proves the correctness of the court's conclusions about the illegal acquisition, transportation, and storage of a narcotic drug, cannabis resin, weighing 5.72 grams, without the purpose of selling it. The actions of the convicted person in this episode were reasonably qualified by the court under part 3 of Article 296 of the Criminal Code. As for the episode of drug smuggling charges, the court, having correctly established the factual circumstances of the case, gave an incorrect legal assessment of the actions of the convicted person, which led to an incorrect sentencing. According to the disposition of Article 286 of the Criminal Code, criminal liability occurs when narcotic drugs are illegally transported across the State border of the Republic of Kazakhstan. According to paragraphs 5, 9 of Article 19 of the Law of the Republic of Kazakhstan dated January 16, 2013 "On the State Border of the Republic of Kazakhstan", when persons pass through checkpoints, as well as in other places where they pass through the State Border, the passport control line acts as the State Border. The State Border crossing is considered completed upon completion of the border control procedure and upon departure of a person, vehicle or export of goods and goods outside the checkpoint, as well as other place where the State Border crossing is carried out. The control of the regime at the checkpoint is carried out by the Border Service of the National Security Committee of the Republic of Kazakhstan and consists in carrying out verification and other measures to comply with the procedure for entry, stay, movement, departure of persons and vehicles.; import, location, movement, and export of goods and goods at a checkpoint. In accordance with paragraph 14 of Article 66 of the above-mentioned Law, the Border Guard Service of the National Security Committee of the Republic of Kazakhstan, when protecting and guarding the State Border, is obliged to detain and seize, in accordance with the established procedure, independently or jointly with authorized bodies, explosives, toxic, radioactive, narcotic substances, weapons, ammunition, other goods and goods prohibited for import across the State Border. to the Republic of Kazakhstan or export from the Republic of Kazakhstan, as well as goods and goods smuggled. The check for the presence of these items is carried out in the security lane, after which the persons who have passed the check are allowed to continue passing through passport control, where the documents are checked. The subject of border control at checkpoints across the State border of the Republic of Kazakhstan is the implementation of actions to detect and detain violators of the rules for crossing the State border, including on the facts of drug smuggling. The recognition of the legality of crossing the State Border is carried out by affixing by an official at the passport control post an appropriate mark in a valid identity document only for persons crossing the State Border in compliance with the requirements of the law. Meanwhile, Z. He was detained by the border patrol of the Border Guard Service of the National Security Committee of the Republic of Kazakhstan at the Kordai checkpoint of the Republic of Kazakhstan during verification measures in the security zone and did not complete the border control procedure.

He did not pass the passport control line and did not cross the State border of the Republic of Kazakhstan. Under such circumstances, Z. If he has not completed his intent to move narcotic drugs from Kyrgyzstan to Kazakhstan, his actions are subject to qualification under part 3 of Article 24, paragraph 5 of part 2 of Article 286 of the Criminal Code as an attempt to smuggle, that is, the movement of narcotic drugs on a large scale across the State border of the Republic of Kazakhstan. In accordance with the requirements of part 3 of Article 56 of the Criminal Code, for an attempted crime, the amount of punishment may not exceed three quarters of the maximum term or the amount of the most severe type of punishment provided for in the relevant article of the Special Part of the Code for a completed crime. The sanction of part 2 of Article 286 of the Criminal Code provides for a maximum term of imprisonment of 12 years, therefore, three quarters of this period is 9 years. The criminal prosecution body investigated the case in the form of an expedited pre-trial investigation, and the court of first instance reviewed it in an abbreviated manner. According to the requirements of part 3 of Article 55 of the Criminal Code, in cases of accelerated pre-trial investigation, the term or amount of the main type of punishment for a committed criminal offense may not exceed half of the maximum term or amount provided for in the relevant article of the Special Part of the Criminal Code.

As follows from the clarifications of paragraph 7 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of criminal punishment", when imposing punishment for an unfinished crime, if there are grounds provided for in parts two and three of Article 55 of the Criminal Code, the multiplicity of the term should be calculated based on the limits established by Article 56 of the Criminal Code. Thus, the punishment of Z. according to part 3 of Article 24, paragraph 5 of part 2 of Article 286 of the Criminal Code, subject to the requirements of part 3 of Article 56, part 3 of Article 55 of the Criminal Code, may not exceed 4 years and 6 months of imprisonment. In addition, in connection with the Law of the Republic of Kazakhstan dated July 12, 2018 No. 180-VI SAM "On amendments and additions to certain Legislative acts of the Republic of Kazakhstan on improving criminal, criminal procedure legislation and the activities of law enforcement and special government agencies", the sanction of part 3 of Article 296 of the Criminal Code was changed and the term of public the work is provided for up to two hundred hours. Since this law improves the situation of convicted Z., who was sentenced to 240 hours of community service by the verdict of the court of first instance under part 3 of Article 296 of the Criminal Code, it is retroactive. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of local courts in relation to Z., his actions were reclassified from paragraph 5 of part 2 of Article 286 of the Criminal Code to part 3 of Article 24, paragraph 5 of part 2 of Article 286 of the Criminal Code and with the application of part 3 of Article 56, paragraph 3 of part 2 of Article 55 of the Criminal Code, 4 years and 6 months of imprisonment; - according to part 3 of Article 296 of the Criminal Code, a sentence of community service of up to 200 hours was imposed.; - based on part 3 of Article 58 of the Criminal Code, 4 years and 6 months of imprisonment were imposed by absorbing a less severe punishment into a more severe one. On the basis of article 63 of the Criminal Code, the imposed punishment was decided to be considered conditional with the establishment of probation control for the entire term of imprisonment, with the assignment of duties specified in the court verdict. The rest of the judicial acts remained unchanged. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied. 

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