If there is no information in the case about the criminal nature of the origin of the property, about the use of property as an instrument of offense, then confiscation of property is not applied.
Imposition of additional punishment The attribution of property to objects of confiscation on the basis of the provisions of part 3 of Article 113 of the CPC is a circumstance included in the subject of proof. If there is no information in the case about the criminal nature of the origin of the property, about the use of property as an instrument of offense, then the confiscation of property is not applied by the Verdict of the specialized interdistrict criminal Court of the Pavlodar region dated April 10, 2018. M., who had no previous convictions, was convicted under paragraph 1) of part 3 of Article 297 of the Criminal Code of the Republic of Kazakhstan (hereinafter – of the Criminal Code) to 10 years in prison, under part 3 of Article 296 of the Criminal Code to a fine of 200 monthly calculation indices (hereinafter – MCI) in the amount of 481,000 tenge, on the basis of part 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment, 10 years of imprisonment were finally imposed, with punishment served in an institution of the maximum security penal system, F., who had no previous convictions, was sentenced to 10 years in prison under paragraph 1) of part 3 of Article 297 of the Criminal Code. According to Part 3 of Article 296 of the Criminal Code, a fine of 200 MCI in the amount of 481,000 tenge was finally imposed on 10 years of imprisonment based on part 3 of Article 58 of the Criminal Code by absorbing a less severe punishment with a more severe one., while serving a sentence in an institution of the maximum security penal system. Based on part 3 of Article 118 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), a Mazda-Titan car with the state number "F143KV", body number "WGSAT103225", owned by T LLP on the right of personal ownership, and a VAZ 21150 car with the state number "177 BP 14", owned by right of personal ownership, stored in the parking lot of the KGP "Gorkomkhoz" of the Housing and Communal Services department of Pavlodar, have been converted into state revenue. The same verdict convicted T., in respect of whom the petition was not received.
If there is no information in the case about the criminal nature of the origin of the property, about the use of property as an instrument of offense, then confiscation of property is not applied.
By the verdict of the court, M. and F. were found guilty of illegal possession of narcotic drugs without the purpose of sale, on a large scale, as well as illegal possession for the purpose of sale and sale of narcotic drugs, on a large scale, committed in a group of persons by prior agreement. By the resolution of the Judicial Board for Criminal Cases of the Pavlodar Regional Court dated July 11, 2018, the verdict of the court was changed. From the condemnation of M. and F. Part 3 of Article 296 of the Criminal Code was excluded, as well as the application of part 3 of Article 58 of the Criminal Code for a set of criminal offenses, with the final conviction remaining under paragraph 1) of part 3 of Article 297 of the Criminal Code to 10 years in prison. The video recordings of the personal searches of T., M. and F. were declared inadmissible and excluded from the evidence, while the rest of the verdict was left unchanged. In the petition, convict M. indicates that his actions were given an incorrect legal assessment, violations of the law were committed in the case, material evidence in the form of marked money was lost, and the flushing was destroyed by court verdict. In addition, he believes that his VAZ 21150 car was illegally recognized as an instrument of crime. He was not given the last word in the court of appeal, which, in his opinion, is a significant violation of the law, the announcement of the decision of the court of second instance was carried out with the participation of only 2 judges. He asks you to thoroughly review the case and make a legal decision. B.'s lawyer points out in his petition that F. was only fulfilling the request of M. and the conditional buyer of narcotic drugs. The personal search protocol was declared inadmissible evidence. The court session did not examine the funds recognized as material evidence due to their loss. Considers that copies of the funds attached to the materials of the criminal case should be excluded from the evidence. The court illegally confiscated a Mazda-Titan car owned by T LLP, as the court found that no drugs were transported in this car. He asks to justify F. in the absence of corpus delicti in his actions, to cancel the confiscation of the Mazda-Titan car and the recovery of procedural costs at the expense of the state. The court's conclusions about the guilt of M. and F. in the acts they are accused of are based on comprehensively, fully and objectively researched evidence provided in the verdict.
Based on the totality of the evidence, the court correctly established the factual circumstances of the case, according to which M. and F. illegally stored and sold the narcotic drug hashish, weighing 130.90 grams, in a group of persons by prior agreement. The guilt of M. and F. is proved by the testimony of the convicts themselves, as well as the testimony of witnesses S., Zh., a witness under the pseudonym "A.", which are objectively confirmed by the protocols of investigative actions during the operational purchase, audio-video recording of the secret control of the purchase, the protocol of the search of a VAZ 21150 car belonging to M. and other evidence examined in court. The court came to the correct conclusion about the guilt of the convicted M. and F. and the qualification of their actions under paragraph 1) of part 3 of Article 297 of the Criminal Code. The arguments of the petition of the convicted M. about the violation of his rights are untenable, since the provision of the last word at the meeting of the appellate instance is not provided for by law. The decision of the appeals board in the conference room was signed by all the judges who participated in the review. At the same time, the court violated the norms of the criminal procedure law when deciding the fate of the material evidence. According to paragraph 20 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 with subsequent amendments "On certain issues of criminal punishment", confiscation can be applied only to property owned by the convicted person and (or) third parties, obtained by criminal means or acquired with funds obtained by criminal means, as well as property that is an instrument or means of committing a criminal offense. Thus, the court converted a Mazda-Titan car with the state number "F143KV" and a VAZ 21150 car with the state number "177 BP14" to the state revenue. The court motivated the appeal of cars to the state's revenue by the fact that they are an instrument of crime. From the materials of the criminal case, it can be seen that the body of the pre-trial investigation, indicating that F. He illegally transported narcotic drugs in a Mazda-Titan car with the state number F143KV, recognized it as a crime weapon and transferred it for storage to the parking lot of the City Committee of Agriculture in Pavlodar. The VAZ 21150 car with the state number 177 BP14 belonging to M. was not recognized as a crime weapon.
At the same time, the court of first instance, having established that the convicted M. and F. The illegal transportation of narcotic drugs is not imputed, going beyond the scope of the charge, he mistakenly recognized the Mazda-Titan and VAZ 21150 cars as a crime weapon, considering that M. and F. used them as a tool for committing a crime, transporting and selling narcotic drugs. It should be noted that the attribution of property to objects of confiscation on the basis of the provisions of part 3 of Article 113 of the CPC is an obligation included in the subject of proof. If there is no information in the case about the criminal nature of the origin of the property, about the use of property as an instrument of offense, then confiscation of property is not applied. Neither the pre-trial investigation body nor the court charged M. and F. with the qualifying attribute "illegal transportation of narcotic drugs", and no drugs or hiding places were found during the search of the vehicles. Consequently, the court unreasonably turned the above-mentioned cars into state revenue as an instrument of crime. Based on the above, the judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of local courts in relation to M. and F., canceled the appeal to the state revenue of a Mazda-Titan car with the state number F143KV, owned by T LLP; canceled the appeal to the state revenue of a VAZ 21150 car with the state number "177 BP 14", owned by convict M. In the rest of the judicial acts, she left unchanged the petitions of the convicted M. and lawyer B. in the interests of F. partially satisfied.
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