Illegal acquisition and storage for the purpose of selling narcotic drugs on an especially large scale on the grounds of repeated commission of a crime by a group of persons by prior agreement

By the verdict of the specialized interdistrict criminal Court of Atyrau region dated December 22, 2010: T.,- convicted under paragraphs "a, b, c" of part 3 of Article 259 of the Criminal Code to 15 years in prison with confiscation of property and serving his sentence in a high-security penal colony; K., - sentenced under paragraphs "a, b, c" of part 3 of Article 259 of the Criminal Code to 13 years of imprisonment with confiscation of property, under part 4 of Article 251 of the Criminal Code to 1 year of imprisonment, under part 1 of Article 259 of the Criminal Code to 1 year of imprisonment, on the basis of part 3 of Article 58 of the Criminal Code to 15 years of imprisonment with confiscation of property and serving a sentence in a special-regime penal colony. In accordance with paragraph "b" of part 3 of Article 13 of the Criminal Code, K.'s actions recognized the presence of a particularly dangerous recidivism of crimes. By a decision of the cassation board of the Atyrau Regional Court dated February 07, 2011, the verdict of the court of first instance was changed, regarding K.'s conviction under part 1 of Article 259 of the Criminal Code, the verdict was overturned, and the case in this part was discontinued, and the sentence imposed on him for a combination of crimes was reduced to 14 years in prison. The rest of the verdict was left unchanged. By a court with the participation of jurors T. and K. They were found guilty of illegally acquiring and storing 1.22 and 1.51 grams of "heroin" on an especially large scale for the purpose of selling narcotic drugs, respectively, and selling narcotic drugs on a large scale – 0.06, 0.05 and 0.07 grams of "heroin" on the grounds of repeated commission of a crime by a group of persons by prior agreement. In addition, K. was found guilty of illegally carrying a bladed weapon. In the protest, the Prosecutor General, disagreeing with the judicial acts issued in the case, believes that the court's verdict regarding the confession of T. and K. guilty of the illegal acquisition and possession of narcotic drugs on a particularly large scale for the purpose of sale, their sale on a large scale, repeatedly, by a group of persons by prior agreement, unfounded on the following grounds.

Illegal acquisition and storage for the purpose of selling narcotic drugs on an especially large scale on the grounds of repeated commission of a crime by a group of persons by prior agreement

In accordance with the regulatory decision of the Supreme Court, a guilty verdict must be based on reliable evidence. However, according to the prosecutor, the evidence of the convicts' guilt was obtained in violation of the criminal procedure law and is unacceptable. In particular, during the recording of physical evidence, the names of the witnesses were incorrectly indicated, the time and date of some procedural documents were in doubt, some witnesses were not questioned in court, there are materials in the official language in the case, including transcripts of telephone conversations, the moments of drug transfers were not recorded and were not seized from the convicts."marked" cash. In this regard, the prosecutor requests judicial acts against T. and K. to amend, to cancel their convictions for drug sales, to terminate the case in this part due to the lack of corpus delicti in their actions, and to reclassify the actions of the convicted persons from paragraphs "a, b, c" of Part 3 of Article 259 of the Criminal Code to part 1-1 of Article 259 of the Criminal Code according to the episode of September 03, 2010. to determine 6 years of imprisonment, K. - 6 years of imprisonment and, on the basis of part 3 of Article 58 of the Criminal Code, to determine 7 years of imprisonment for him, to recognize in K.'s actions the presence of a dangerous recidivism of crimes. Having studied the case materials, the supervisory judicial board of the Supreme Court considered that the judicial acts against T. and K. should be left unchanged, and the prosecutor's protest should be dismissed on the following grounds. The verdict of the court against T. and K. was decided by a court with the participation of jurors. The trial was conducted strictly in accordance with the provisions of the Code of Criminal Procedure governing proceedings involving jurors. At the same time, there were no violations of the norms of the criminal procedure law, entailing the cancellation or modification of the court verdict. In the trial, all the evidence of the prosecution was supported by the public prosecutor. The public prosecutor or the defense did not raise the issue of the inadmissibility of any evidence in the case, including those that, in the prosecutor's opinion, were fixed in the protest by the criminal prosecution authorities in violation of the relevant procedures. The jury's conclusion on the guilt of those convicted of selling narcotic drugs is also based on evidence obtained by the criminal prosecution authorities in the framework of operational investigative activities. In particular, as part of operational investigative measures and imitation of criminal activity, persons who voluntarily cooperated with the investigation carried out operational purchases of narcotic drugs from convicts. These facts are recorded in a hidden video.  The results of the operational search activities, including recordings of telephone conversations and video recordings of the sale of narcotic drugs, were presented to the jury. In these circumstances, a prosecutor's supervisory review of a court verdict based on a jury verdict is unfounded. At the same time, it should be noted that the prosecutor's position that the verdict in this case, which was considered with the participation of a jury, is not based on reliable evidence, does not comply with the law. In accordance with the provisions of article 571 of the CPC, the verdict handed down by a court with the participation of jurors does not provide evidence on which the court's conclusions are based, but only contains a description of the criminal act of which the defendant was found guilty, the qualification of the deed and the motives for sentencing. The court's verdict against T. and K. it exactly meets the specified requirements of the criminal procedure law. The Supervisory Judicial Board of the Supreme Court upheld the verdict of the specialized interdistrict criminal court of Atyrau region and the decision of the cassation board of the regional court against T. and K., and the protest of the Prosecutor General of the Republic of Kazakhstan was not satisfied. 

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