Civil cases on claims for the destruction of prohibited items
Thus, by the decision of the Kostanay City Court dated January 14, 2015 in the civil case No. 2-10239/2015, the claim of the Republican state Institution "Institution of the Criminal Code 161/1 of the Ministry of Internal Affairs of the Republic of Kazakhstan" against the convicted Temirov Zh.E. for the destruction of a prohibited object, homemade playing cards in the amount of 36 pieces, was satisfied in full.
When considering the case on the merits, the court examined the materials of the official investigation dated 08/13/2014, where it was established that the convicted Temirov Zh.E. had indeed made homemade playing cards in the amount of 36 pieces, which belong to prohibited items.
Having studied all the evidence presented in the case and taking into account the fact that the convicted Temirov J.E. had prohibited items for storage and use, the court satisfied this claim in accordance with paragraph 6 of Article 98 of the Criminal Code of the Republic of Kazakhstan, which states that money, securities and other valuables found in the convicts, as well as on the territory of the institution Those whose ownership cannot be determined are withdrawn by the administration in accordance with the internal regulations of the institutions and, by court order, are subject to state revenue.
Other things and documents prohibited by law, seized from convicts by a commission decision of the institution's administration, are transferred to relatives or for storage, or destroyed by order of the head of the institution, on which an act is drawn up. At the same time, the court seized from the convicted Temirov Zh.E., prohibited items, homemade playing cards in the amount of 36 (thirty-six) pieces, were destroyed. And also the state duty to the state income in the amount of 991 (nine hundred and ninety-one) tenge was collected from Temirov Zh.E.
Thus, by the decision of the Atyrau City Court dated December 28, 2016, in civil case No. 2310-16-00-2/9964, the plaintiff, the Republican State Institution Institution UG-157/11 of the Committee of the Penal Enforcement System of the Ministry of Internal Affairs, filed a lawsuit against Urazgalieva Z.K. for the destruction of a prohibited item, a Samsung cell phone with the IMEI code 356288/05/005074/0. and an Activ cellular SIM card. The claims of the Republican State Institution "Institution UG-157/11" against Urazgalieva Z.K. for the destruction of prohibited items have been satisfied.
At the same time, the Samsung cell phone with the IMEI code 356288/05/005074/0 and the Activ cellular SIM card found and seized from the convicted woman were destroyed by the court. When considering the case on the merits, the court examined the materials of the official investigation dated February 10, 2015, where it was established that the convicted Urazgaliyeva Z.K. a Samsung cell phone with the IMEI code 356288/05/005074/0 and an Activ cellular SIM card were found, which are prohibited items, however, according to the Internal Regulations of Correctional Institutions approved by Order of the Minister of Internal Affairs No. 182 dated March 29, 2012 and in paragraph 43 of Appendix 6, it is clarified that those accepted for storage or seized from the money belonging to the suspect or the accused is credited to his personal account.
Valuables (precious metals and articles made from them, precious stones, pearls and articles made from them, watches of all types and brands, securities, currency and mobile communications) are deposited in the financial part of the detention facility. Personal documents (identity documents and others) are transferred for storage to the special accounting department of the detention facility. Prohibited items, substances, and foodstuffs are deposited in an institution's warehouse or destroyed by court order.
Thus, in connection with the above, a cell phone with a SIM card was to be deposited in the financial part of the detention facility, and not destroyed. For this violation, the defendant was disciplined by the decision of the head of the institution dated February 10, 2015 in the form of placement in a disciplinary isolation unit (judge Turganova G.D.).
When settling claims, the courts reasonably apply the provisions of paragraph 5 of Article 33 of the Law of the Republic of Kazakhstan "On the procedure and conditions of detention of persons in special institutions providing temporary isolation from society" since, according to the specified provision of the article, objects, substances and foodstuffs prohibited for storage and use by suspects and accused persons are transferred to the custody of the administration of the place of detention. or they are destroyed by a court decision.
According to the requirements of Appendix 1 to the "Internal Regulations of Correctional Institutions" No. 182, approved by the Order of the Ministry of Internal Affairs of the Republic of Kazakhstan dated 29.03.2012, where the List of prohibited items in paragraph 14 indicates playing cards and other items that belong to the list of things prohibited for sale and use by persons sentenced to imprisonment.
Thus, the homemade playing cards seized from the defendant serving his sentence, as well as the homemade tattooing device, are prohibited items and are subject to destruction by a court decision.
It should be noted that in these categories of cases, claims are mostly satisfied in connection with the recognition by the defendants of the claims brought against them, therefore, the courts reasonably apply the norms of part 4 of Article 193 and part 5 of Article 221 of the CPC, according to which, when a defendant recognizes a claim and the court accepts it, a decision is made to satisfy the claims.
At the same time, the courts correctly refer to the clarifications of paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision", which states that within the meaning of Article 49 of the CPC of the Republic of Kazakhstan, recognition of the claim is the right of the defendant.
If the recognition of the claim by the defendant does not violate anyone's rights, freedoms and legitimate interests, and does not contradict the law, the court may indicate in the reasoning part of the decision that the claim has been recognized and accepted by the court.
In this regard, since the defendant's recognition of the claim against him does not violate the rights, freedoms and legitimate interests of the parties and third parties, and does not contradict the current legislation of the Republic of Kazakhstan, the courts correctly accept the defendant's recognition of the claim, and apply the law to be applied.
The main regulatory legal acts regulating this category of cases are:
- The Penal Enforcement Code of the Republic of Kazakhstan;
- The Law of the Republic of Kazakhstan "On the procedure and conditions of detention of persons in special institutions providing temporary isolation from society";
- The Civil Procedure Code of the Republic of Kazakhstan;
- Article 360 of the Civil Procedure Code of the Republic of Kazakhstan;
- Article 242 of the Civil Code of the Republic of Kazakhstan;
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 07/11/2003 No. 5 "On judicial decision" and the Rules of Internal Regulations of correctional institutions, approved by the Order of the Ministry of Internal Affairs of the Republic of Kazakhstan dated 03/29/2012.
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