Due to the lack of corpus delicti, criminal proceedings were suspended and judicial acts of local courts were canceled
By the verdict of the specialized Inter – District Court for criminal cases of the South Kazakhstan region dated June 10, 2011, I. was sentenced to 10 years in prison, serving a sentence in a strict correctional colony under Paragraph "B" of Part 3 of Article 259 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code). The term of serving the sentence is calculated from March 10, 2011. By the verdict of the court, I. was found guilty of two counts of illegal possession of the narcotic substance "dried marijuana". By the decision of the Appellate Judicial Board of the South Kazakhstan regional court dated July 26, 2011, the sentence was left unchanged. By the decision of the Judicial Board of Cassation of the South Kazakhstan regional court dated February 14, 2013, judicial acts were left unchanged. In the prosecutor general's protest, 500 tenge received from I. In Episode 1 was not recognized as evidence, there is no evidence other than the response of Witness B. In this episode, the passage of a narcotic substance was not fixed by audio-video recording, in addition, according to Episode 2, the package with a narcotic substance was first taken from the buyer witness O., and then 40 minutes later the same package was taken again from convicted I., and there were many criminal violations in the case, he was acquitted and asked to be released from custody, showing that he was not proven. Convicted in the case, I. was charged with selling 2,702 grams of dried marijuana to witness B. on March 8, 2011, and 626.5 grams of dried marijuana to conditional buyer O. on March 9. Part 3 of Article 393 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code) states that a guilty verdict cannot be based on assumptions and is issued only if the defendant's guilt in committing a criminal offense during the trial is confirmed by a set of evidence studied by the court.
Therefore, unquenchable doubts about the defendant's guilt should be clarified in his favor. The conclusion of the court of first instance that I. repeatedly carried a narcotic substance is not justified by the evidence studied in accordance with Article 125 of the CPC. In particular, in the protocol of March 9, 2011 on the inspection of the scene of the incident for the 1st episode, it was indicated that the witness received from B. As a narcotic substance, and from I. 500 tenge as a witness. However, the fate of the 500 tenge received from I. is unknown. This money was not recognized as evidence in the case, was not registered in the case, the issue of which was not resolved by the sentence. The origin of this 500 tenge money has not been verified. No one has seen I. actually sell the drug to witness B. The car was stopped only under suspicion. In addition to the answer of the Witness B. The guilt of I. was not confirmed by other evidence, including an audio-video recording. Attempts to sell drugs were not approved by the authorities, were not carried out by procedural law. Based only on the words of B. According to the expert's conclusion No. 1146 of April 11, 2011, the witness recommended for the study found that 2,702 grams of dried marijuana obtained from B. and 626.5 grams of dried marijuana obtained from I. In terms of raw materials, the total source of origin was different and did not have a single mixed mass. I.'s response indicated that on the day of the incident, the witness did not see B. and did not sell him any narcotic substances. For the same reason, since there is no valid evidence to prove I.'s guilt under Episode 1, he is found not guilty of this crime and is subject to acquittal. In addition, the conclusion of the court under Episode 2 that I. on March 9, 2011, the conditional buyer passed to witness O. 626.5 grams of dried marijuana weighing 35,000 tenge is also unfounded. It is explained that in accordance with the requirements of paragraph 9-4) of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated May 14, 1998 No. 3" on the application of legislation in cases related to illicit trafficking in drugs, Psychotropic Substances, their analogues and precursors", it is impossible to induce and provoke citizens to commit offenses in the implementation of operational search measures. The criminal case shows that at 19:50 on March 9, 2011, a plastic bag containing 15 pieces of narcotic substances was taken during the examination of the witness O., the same package containing narcotic substances was taken from the suspect I. for the second time in the presence of two persons in front of the bus stop during the inspection of the scene, which was carried out on March 9, 2011 from 20:30 to 21:20, they were recognized as physical evidence and placed in a separate bag. Therefore, the mentioned narcotic substance was taken twice. The package with the narcotic substance taken from the conditional buyer O. is placed in a separate package and is not sealed.
The investigation into the suspect I. and the conditional buyer O. was not confirmed by video. The protocols indicated only the receipt of a package containing a narcotic substance. Also, the witness said that in July 2010, A. was detained by the police with drugs and went on a receipt, on March 8, 2011, he met his acquaintance I. and drank vodka together, then I. said that he was going to the toilet, held a bag in his hand, said that there was Anasha in it, and also that I. went home because he was drunk, he saw an acquaintance O. on the way home and drank wine with him, O. when he was asked if he had Anasha, he called I. on the phone, saying," I don't have it, but I. has it, "and when he said," Give Anasha to O., he will get it, "I. fixed in his answer that he told him," you're drunk, go home." According to the witness, on March 8, 2011, when the wanted A. was detained by the police, he said that a guy from Kentau named "Kalzhigit" was selling drugs, through A. he met I. as a person who buys drugs, three of them talked, the next day I. sold drugs for 35,000 tenge. At the same time, the origin of the 100,000 tenge money used in Episode 2 is questioned. The fact is that the senior operative of the KENTAU Police Department N. used his own funds to arrest the drug dealer. In the case, 35,000 tenge was recognized as evidence. The protocol on the consideration of the evidence indicates that the money in the amount of 35,000 tenge was returned to its owner on the basis of a receipt. According to the receipt, the money in the amount of 100,000 tenge was returned to the operative N. The court verdict was not executed for a long time, the money returned to N. by receipt, after 2 years and 1 month, the interrogator appeared from A. I. in all his answers, he indicated that he was drunk on the day of the incident, and then found 626.5 grams of dried marijuana narcotic, stored it for his own use and had no idea of passing it on.
Operational search measures in a criminal case were not recorded on audio and video tape, and conversations between them were not recorded at all. In the protocol of the inspection of the scene of the incident, it is written that "the inspection of the scene was taken on photographs and Videotapes with the participation of citizens." However, in a criminal case, such images or videos are not recognized as evidence, are not registered in the case. Witness A. was detained by police officer O. due to being wanted the day before the incident. It is also established that in the answers of Witness A. and I. There were no conversations about the sale of narcotic substances. In conclusion, it is noted that in connection with the dependence of the witness A. on the police officer O., in the course of the implementation of operational-search measures, the police officer joined with O. and provoked the convicted I., who was drunk, to commit an offense, there was a provocation in their actions. In accordance with paragraph 5 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated August 15, 2002 No. 19" on the judicial verdict", if the Court unconditionally determines the occurrence of a crime, its commission by the defendant, his guilt in committing a crime, his guilt confirmed by evidence collected in compliance with the requirements of the law, as well as the court, guided by the presumption of innocence,, Indicated that the guilt of a person in committing a crime is recognized as proven only if he answers all the questions specified in Article 390 of the CPC.
In turn, there is no reason to believe that I. with unquenchable suspicions, the police officer transferred drugs to O. for 35,000 tenge. This conclusion of the court is opposed to the presumption of innocence. Therefore, I. is also found innocent in the event of this crime and is subject to acquittal. In connection with the violation of the requirements of the Criminal Procedure Law, it is necessary to differentiate the actions of I. Only by Part 1 of Article 259 of the Criminal Procedure Code of the 1997 edition, that is, the indication of illegal transportation and storage of narcotic substances or psychotropic substances in large quantities without the purpose of sale. However, the Law No. 393-IV dated January 18, 2011" on introducing amendments and additions to some legislative acts of the Republic of Kazakhstan on further humanization of criminal legislation and strengthening guarantees of legality in criminal proceedings " excludes Part 1 of Article 259 of the criminal code. In this regard, taking into account these violations, the judicial board concluded that the criminal proceedings against I. are subject to termination. The judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan has canceled the judicial acts of local courts against convicted I. criminal proceedings have been terminated in connection with the absence of corpus delicti under Paragraph "B" of Part 3 of Article 259 of the criminal code. Convicted I. was released from custody and recognized that in accordance with Chapter 4 of the Criminal Procedure Code of the Republic of Kazakhstan I. has the right to compensate for damage caused by illegal actions of the body conducting criminal proceedings. The prosecutor general's protest was satisfied.
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