Evaluation of evidence Incorrect qualification of the convicted person's actions led to an incorrect imposition of punishment
By the verdict of the Kordai District Court of Zhambyl region dated May 11, 2017, Y., 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, and under part 3 of Article 296 of the Criminal Code to community service for 180 hours. Based on part 3 of Article 58 of the Criminal Code, for a combination of criminal offenses, by absorbing a less severe punishment with a more severe one, 7 years of imprisonment were finally appointed to serve. In accordance with part 1 of Article 63 of the Criminal Code, the penalty is He was appointed conditionally, with the establishment of probation control for the entire term of imprisonment, with the imposition of certain duties on the convicted person. By the verdict of the court S. He was found guilty of illegal acquisition, transportation, storage without the purpose of sale, as well as illegal movement of narcotic drugs on a large scale across the State border of the Republic of Kazakhstan. The case was not considered on appeal. In the submission, the Chairman of the Supreme Court believes that the actual actions of S. transportation of narcotic drugs to the territory of the Republic of Kazakhstan does not constitute a completed criminal offense - smuggling. Requests a verdict against S. to amend and reclassify his actions under paragraph 5) of part 2 of Article 286 of the Criminal Code for attempted smuggling and to impose punishment on the convicted person in accordance with the requirements of the criminal law. The convicted person's guilt. The materials of the case proved the illegal storage and transportation of narcotic drugs on a large scale without the purpose of sale. His actions under part 3 of Article 296 of the Criminal Code are qualified correctly. However, the court of first instance did not act. according to paragraph 5) of part 2 of Article 286 of the Criminal Code, they are incorrectly qualified as a completed crime. Within the meaning of the criminal law, liability under Article 286 of the Criminal Code occurs in the case of illegal movement of narcotic drugs across the State border of the Republic of Kazakhstan.
Evaluation of evidence Incorrect qualification of the convicted person's actions led to an incorrect imposition of punishment
In accordance with paragraphs 5 and 9 of Article 19 of the Law of the Republic of Kazakhstan dated January 16, 2013 No. 70-V "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. In addition, according to the clarifications of paragraph 3 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 18, 1997 No. 10 "On the practice of applying legislation on criminal liability for smuggling", smuggling in respect of items for which special rules are established is considered completed from the moment the border control procedure ends. In the criminal case, it was established that after crossing the State border of the Kyrgyz Republic, Y. He was at the Kordai checkpoint in the Republic of Kazakhstan. Here, during a personal search, the narcotic hashish, weighing 12.580 grams, was found and seized from him. Because s. If he was detained, he could not further complete the border control procedure, pass through the passport control line and, consequently, move narcotic drugs across the State border of the Republic of Kazakhstan. Under such circumstances, there are no actions. It should be qualified 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, an attempt to illegally transport narcotic drugs on a large scale across the State border of the Republic of Kazakhstan. Because s. If he has committed an unfinished crime, the provisions of part 3 of Article 56 of the Criminal Code must be taken into account when sentencing him. In addition, when the court establishes circumstances mitigating criminal liability and punishment that are not provided for as a sign of a committed crime and the absence of aggravating circumstances, taking into account the requirements under paragraph 2 of part 2 of Article 55 of the Criminal Code, the amount of punishment may not exceed two thirds of the maximum term or the amount of the most severe type of punishment. According to the explanations contained in paragraph 7 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of the appointment 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, one half, two thirds and three quarters of the maximum term and the amount of the most severe type of punishment, based on the limits established by Article 56 of the Criminal Code.
Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the verdict of the court of first instance in respect of Y. Actions S. 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, subject to the requirements of part 3 of Article 56, paragraph 2) of part 2 of Article 55 of the Criminal Code, a sentence of 6 years imprisonment was imposed. The punishment under part 3 of Article 296 of the Criminal Code remained unchanged. On the basis of part 3 of Article 58 of the Criminal Code, the combination of criminal offenses by absorbing a less severe punishment with a more severe one was finally imposed. 6 years of imprisonment. By virtue 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 and the assignment of duties listed in the court verdict. The rest of the sentence is in respect of S. left unchanged. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied.
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