Attempted large-scale drug smuggling
By the verdict of the Saryagash District Court of the South Kazakhstan region dated April 20, 2017: N., 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 7 years in prison with confiscation of property, under part 3 of Article 296 of the Criminal Code to a fine of 50 months estimated indicators in the amount of 113,450 tenge. Based on part 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment, a more severe one was finally sentenced to 7 years of imprisonment with confiscation of property, with serving the sentence in an institution of the medium-security penal system. The verdict was upheld by the decision of the Judicial Board for Criminal Cases of the South Kazakhstan Regional Court dated July 12, 2017. By the Court of N. She was found guilty of illegally acquiring, transporting and storing the narcotic drug hashish on a large scale without the purpose of selling it, as well as illegally transporting it across the customs border of the Eurasian Economic Union and the State Border of the Republic of Kazakhstan by hiding it from customs and border control. Protest of I.O.The Prosecutor General's request was submitted to amend the judicial acts against N. due to the incorrect qualification of her actions regarding the accusation of drug smuggling, which resulted in the incorrect imposition of punishment. The question is raised about the reclassification of the actions of the convicted person 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, with the imposition of punishment under it using the rules of part 3 of Article 56, part 2 of Article 55 of the Criminal Code in the form of 6 years of imprisonment, exclusion from charges under Part 3 Article 296 of the Criminal Code qualifies the "illegal acquisition and transportation of narcotic drugs", as well as additional punishment in the form of confiscation of property. The court's conclusions on the evidence of N.'s guilt The charges of illegal possession of narcotic drugs on a large scale without the purpose of sale are based on the totality of the evidence examined at the court session.
Attempted large-scale drug smuggling
The actions of the convicted person in this episode were correctly qualified by the court in accordance with part 3 of Article 296 of the Criminal Code. At the same time, as correctly stated in the protest, contrary to article 113 of the Criminal Procedure Code of the Republic of Kazakhstan on the need to prove the events in the case and the legally prescribed signs of a criminal offense, the circumstances of the acquisition and transportation of N. narcotic drugs have not been established in this case, therefore, these qualifying signs should be excluded as unreasonably imputed. The arguments of the protest about the incorrect legal assessment of the actions of N. The charges of drug smuggling are also well-founded, and therefore the court's verdict regarding the conviction of N. under Article 286 of the Criminal Code is subject to change on the following grounds. 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 court reliably established that on March 3, 2017, N. was detained at the Zhibek-Zholy checkpoint while crossing the customs border of the Customs Union and the State Border of the Republic of Kazakhstan. During a personal inspection, a narcotic drug "hashish" with a total weight of 9.6755 grams was found and seized on a large scale. According to the protocol of the inspection of the scene, N. was detained until the border and passport control line. In the presence of established circumstances, the judicial board of the Supreme Court, agreeing with the arguments of the protest, recognizes that N. did not complete the border control procedure, therefore, did not cross the State border of the Republic of Kazakhstan and did not complete her intent aimed at moving narcotic drugs from Kazakhstan to Uzbekistan. In view of the above, N.'s actions, committed with direct intent, directly aimed at committing a crime and not completed due to circumstances beyond her control, 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 narcotic drugs on a large scale.
In accordance with the requirements of part 3 of Article 56 of the Criminal Code, the term or amount of punishment for an attempted crime may not exceed three quarters of the maximum term or amount of the main type of punishment provided for in the relevant article of the Special Part of this 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 up to 12 years, respectively, three quarters of this period is 9 years. According to 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. The court did not establish any aggravating circumstances in relation to convict N. A sincere confession of guilt, remorse for what she had done, the commission of a crime for the first time, and her marital status were recognized as mitigating criminal liability and punishment. Consequently, taking into account the requirements of paragraph 2) of part 2 of Article 55 of the Criminal Code, the amount of punishment imposed on N. may not exceed two thirds of the maximum term or amount, which is 6 years from 9 years. Thus, the punishment of N. under part 3 of Article 24, paragraph 5) of part 2 of Article 286 of the Criminal Code on the basis of the requirements of part 3 of Article 56 of the Criminal Code and paragraph 2) of part 2 of Article 55 of the Criminal Code may not exceed 6 years of imprisonment. In addition, in accordance with paragraph 20 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" (as amended on December 22, 2017), if there is no information about the criminal nature of the origin of the property or the property has not been established at all, confiscation of property is not ordered, in particular This includes articles of the Special Part of the Criminal Code, which provide for the mandatory imposition of this type of additional punishment.
In the case, information about the criminal nature of the origin of N.'s property or about her acquisition of property with funds obtained by criminal means has not been established. In this regard, the application of additional punishment in the form of confiscation of property on the basis of Article 6 of the Criminal Code is subject to exclusion. Based on the above, the judicial Board for Criminal Cases of the Supreme Court made the following changes to the judicial acts of local courts in relation to N.: - excluded the qualifying signs "acquisition and transportation" from the charges under part 3 of Article 296 of the Criminal Code; - reclassified the actions from paragraph 5) of part 2 of Article 286 of the Criminal Code to part 3 of Article 24 and, on the basis of part 3 of Article 56 of the Criminal Code, paragraph 2) of part 2 of Article 55 of the Criminal Code, imposed a sentence of 6 (six) years in prison; - left unchanged the conviction under part 3 of Article 296 of the Criminal Code; - on the basis of part 3 of Article 58 of the Criminal Code, for the totality of crimes by absorbing a less severe punishment with a more severe one, she finally appointed 6 (six) years of imprisonment while serving a sentence in an institution of the medium-security penal system; - excluded the application of additional punishment in the form of confiscation of property on the basis of Article 6 of the Criminal Code. The rest of the judicial acts remained unchanged. Protest of I.O.The Prosecutor General is satisfied.
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