Data obtained with a significant violation of the norms of the criminal procedure law is subject to recognition as inadmissible evidence.
By the verdict of the court No. 2 of the city of Ust-Kamenogorsk, East Kazakhstan region, dated November 25, 2019: K., who had no previous criminal record, was found innocent of committing a crime under part 1 of Article 300 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), and acquitted of failure to prove the commission of a crime, and sentenced under part 2 of Article 296 of the Criminal Code to community service works for a period of 25 hours. Collected from K. A compulsory payment in the amount of 5 MCI - 12,625 tenge is made to the Compensation Fund for Victims. By a decision of the Judicial Board for Criminal Cases of the East Kazakhstan Regional Court dated February 6, 2019, the court's verdict was overturned with a new verdict. By the verdict of the judicial board for criminal cases of the East Kazakhstan Regional Court dated February 6, 2019, K. was sentenced under part 2 of Article 296 of the Criminal Code to community service for up to 80 hours, under part 1 of Article 300 of the Criminal Code to 1 year of restriction of freedom, on the basis of part 2 of Article 58 of the Criminal Code by absorbing a less severe punishment with a more severe one. a year of restriction of freedom. It was decided to involve K. on the basis of part 1 of Article 44 of the Criminal Code, to forced labor for 100 hours annually during the entire term of serving the sentence. Recovered from K. A compulsory payment in the amount of 25,250 tenge was made to the Compensation Fund for Victims. By the verdict of the appellate instance, K. was found guilty of illegal possession without the purpose of selling narcotic drugs in a small amount, as well as sowing and growing cannabis varieties containing narcotic substances prohibited for cultivation in a small amount. In the submission, the Chairman of the Supreme Court raises the issue of repealing judicial acts of the appellate instance and leaving the verdict of the court of first instance unchanged. According to paragraph 3) of part 2 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are cases where the adopted judicial act violates uniformity in the interpretation and application of legal norms by courts. As established by the case materials, on August 22, 2019, during an urgent search without the authorization of the investigating judge at K.'s place of residence at 51 Lermontov St., glass containers, a paper parcel, a newspaper and fragments of plastic bottles containing a substance of plant origin, identified by an expert as a narcotic drug, dried marijuana, were found., with a total weight of 4.78 grams.
Data obtained with a significant violation of the norms of the criminal procedure law is subject to recognition as inadmissible evidence.
Also, during this search, 14 pieces of cannabis plants were found in the garden adjacent to the house and 2 pieces of cannabis plants were found in the summer kitchen. The conclusions about K.'s guilt in illegal possession without the purpose of selling narcotic drugs are based on the totality of evidence examined by the court: the confession of the convicted person, the protocol of the search and discovery of dried marijuana weighing 4.78 grams at K.'s place of residence, the testimony of witnesses A. and S., who participated as witnesses, the expert opinion and other case materials. His actions are correctly qualified under part 2 of Article 296 of the Criminal Code. As for K.'s accusation under part 1 of Article 300 of the Criminal Code, the court of appeal, recognizing the lawfulness of the search not only in K.'s house, but also in the surrounding area, overturned the verdict of the court of first instance regarding his acquittal under this article and ruled a guilty verdict. It can be seen from the case file that on August 23, 2019, the investigator filed a motion with the investigating judge to recognize as lawful the urgent search of K.'s house and the surrounding area. By the decision of the investigating judge R. On August 23, 2019, an urgent search conducted without the authorization of an investigating judge was recognized as lawful only in terms of a search of a residential building (house). On September 8, 2019, the investigator repeatedly appealed to the chairman of the specialized investigative court of the city of Ust-Kamenogorsk with a request to eliminate the typo in the operative part of the decision of the investigating judge R. dated August 23, 2019, and the addition of the resolution with the words: "and the adjacent territory." The investigating judge P. On September 23, 2019, he issued a resolution to eliminate the typo in the operative part of the investigative judge's decision of August 23, 2019, adding the phrase "and the territory adjacent to it" after the word "house". The court of appeal, recognizing this decision of the investigating judge P. as an additional explanation with the elimination of the error (typo), also recognized as lawful the search of the territory adjacent to the house – the vegetable garden and the summer kitchen, conducted without the sanction of the investigating judge.
Meanwhile, according to part 2 of Article 252 of the CPC, the basis for conducting a search is the existence of sufficient data to believe that the specified items or documents may be in a certain room or other place, or in the possession of a specific person. Thus, the question of the legality of a search carried out without the approval of an investigating judge must be resolved for each object - a specific room or place, or the presence of a specific person. The current criminal procedure law does not provide for the appeal of the pre-trial body to the investigating judge with a request for the removal of a typo and the issuance of such a judicial act as an additional resolution on the removal of a typo by the investigating judge. Investigating judge P., when making this decision, referred to paragraph 17 of Article 476 of the CPC, which regulates issues arising during the execution of a sentence, and not a judicial act rendered in pre-trial proceedings. According to article 112 of the CPC, factual data obtained with a significant violation of the procedure for conducting a procedural action or violation of other rules of criminal procedure during a pre-trial investigation, which affected or could have affected the reliability of the factual data obtained, cannot be considered admissible as evidence. Thus, by the decision of the investigating judge, only the search of the house at 51 Lermontov St. was recognized as lawful. The search of the adjacent territory, a vegetable garden and a detached building in the form of a summer kitchen, was not reviewed by the investigating judge and was not recognized as lawful. A search carried out contrary to the requirements of article 254 of the CPC has no legal effect without the approval of the investigating judge.
In this regard, the conclusions of the court of appeal on the recognition as admissible evidence of the search of the adjacent territory to the house at 51 Lermontov St. without the approval of the investigating judge and the finding of K. guilty of committing a criminal offense under part 1 of Article 300 of the Criminal Code are unfounded. In addition, the judicial acts of the appellate instance incorrectly indicate the date of their issuance – February 6, 2019, although they were issued on February 6, 2020. Based on the above, the judicial Board for criminal Cases of the Supreme Court overturned the decision and verdict of the court of appeal of February 6, 2019 against K. The verdict of the court of first instance of November 25, 2019 against K. remained unchanged. K. was sentenced under part 2 of Article 296 of the Criminal Code to community service for a period of 25 hours. Based on paragraph 2) of part 2-1 of Article 43 of the Criminal Code, one day of restriction of freedom is counted for four hours of community service not completed. K.'s punishment under this article is decided to be considered served. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied.
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