Evidence obtained in violation of the procedure established by the Criminal procedure Law and which has not been verified cannot be used as the basis for an accusation.
By the verdict of court No. 2 of Ust-Kamenogorsk dated November 20, 2009, upheld by the resolution of the Board of Criminal Cases of the East Kazakhstan Regional Court dated January 15, 2010, S., - convicted under paragraph "b" of part 3 of Article 259 of the Criminal Code to 12 years in prison with confiscation of property, with serving the sentence in a special-regime penal colony. On the basis of paragraphs "d" of Part 1 of Articles 88, 95 of the Criminal Code, compulsory drug addiction treatment was prescribed. In accordance with paragraph "b" of Part 3 of Article 13 of the Criminal Code, a particularly dangerous recidivism of crimes was recognized in the actions of the convicted person by the Decision of the Cassation judicial board of the East Kazakhstan Regional Court dated November 06, 2012, the said judicial acts were left unchanged. By the verdict of the court, convicted S. was found guilty of illegally acquiring and storing the narcotic drug heroin for the purpose of selling it, and on June 16, 2009, at about 10:00 a.m., he sold it to an acquaintance simulating criminal activity, Sh. one large plastic parcel of heroin per 1,000 te ng, with a total weight of 0.1646 grams, on the same day, at about 13-30 p.m. sold Sh again. two large-scale plastic parcels with heroin, with a total weight of 0.187 grams for 2,000 tenge. On the same day, at about 7 p.m., S. was detained, and during an inspection of his apartment, a substance weighing 0.6187 grams, which is a narcotic drug, heroin, was found and seized.
Having considered the case at the request of convicted S., the supervisory judicial board for Criminal Cases concluded that judicial acts against the convicted person had been changed due to a significant violation of the norms of the criminal procedural law and its improper application. The court's conclusions on the convict's guilt in the illegal acquisition and possession for the purpose of selling heroin on a large scale, weighing 0.6187 g. and the sale on June 16, 2009 of Sh. At about 13-30 o'clock, two large-scale polyethylene bundles with heroin, weighing 0.187 grams per 2,000 tenge, are based on evidence examined in accordance with Article 128 of the CPC and are not disputed by the convict. At the same time, the court's conclusion on the sale of Sh. On June 16, 2009, at about 10.00 a.m., one plastic parcel with heroin for 1,000 tenge, with a total weight of 0.1646 grams, cannot be considered justified. It follows from the materials of the criminal case that Sh. was involved in cooperation by the criminal prosecution authorities in the framework of operational investigative activities. On June 16, 2009, for about 13-49 minutes, and with his participation, only one operational purchase of narcotic drugs was carried out from S., who lives on Ulianovskaya Street, at a price of 2,000 tenge, which, according to the expert opinion of June 16, 2009, is a narcotic drug – heroin, weighing 0.187grams.
Purchase of Sh. On June 16, 2009, at approximately 10:00 a.m., one plastic parcel with heroin for 1,000 tenge, with a total weight of 0.1646 grams, is not based on valid, admissible and reliable evidence. 128 of the CPC, evidence is recognized as admissible if it is obtained in accordance with the procedure established by this Code, and is recognized as reliable if, as a result of verification, it turns out that it corresponds to reality. Meanwhile, the evidence on the first fact of the alleged sale of heroin at 10.00 o'clock was obtained in violation of the procedure established by the criminal procedure law and was not subject to verification.In accordance with paragraph 2 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated April 20, 2006 "On certain issues of assessing evidence in criminal cases", as subsequently amended, factual data can be obtained during operational investigative activities, checking materials before initiating criminal proceedings., pre-trial proceedings in the case and the main trial.
Evidence obtained in violation of the procedure established by the Criminal procedure Law and which has not been verified cannot be used as the basis for an accusation.
According to Article 116 of the CPC, factual data should be declared inadmissible as evidence if they were obtained in violation of the requirements of the Code of Criminal Procedure, including a significant violation of the procedure for the procedural action. In this case, contrary to Article 125 of the CPC, evidence was not collected on the first fact of sale, committed at about 10.00 a.m. on June 16, 2009, in accordance with the procedural procedure established by law. The file contains only a certificate of voluntary extradition by citizen Sh. a polymer package with a light-colored powdery substance purchased from S. at about 10.00 a.m., that is, before the initiation of a criminal case, before conducting operational search activities and checking materials. There is no evidence confirming the circumstances of the first sale of heroin on June 16 at about 10:00 a.m., except for the testimony of Sh., There is no evidence in the case, the verdict was not given and the criminal prosecution authorities were not presented, no case was initiated on this fact and no investigation was actually conducted. The criminal prosecution body has not established the fact of the first sale of the narcotic drug heroin by S.S. in any way, and no actions have been taken to record the evidence in a procedural manner. It has not been established with what funds, when and under what circumstances the convict sold heroin to Sh. On June 16, at about 10:00 a.m. In the presence of violations of the criminal procedure law, it should be recognized that
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