Illegal possession of narcotic drugs on a large scale for the purpose of sale, the Court reclassified the actions of the convicted person to a less serious crime, contrary to the requirement of the law on the need to impose a fair punishment sufficient to correct it.
By the verdict of the specialized interdistrict Criminal Court of Almaty dated May 21, 2013: N., convicted under paragraph "b" of part three of Article 259 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 11 years and 6 months in prison with confiscation of property and serving his sentence in a special–regime penal colony. In accordance with paragraph "b" of the third part of Article 13 of the Criminal Code, N.'s actions were recognized as a particularly dangerous recidivism of crimes. By the decision of the Appellate Judicial Board for Criminal Cases of the Almaty City Court dated July 22, 2013, the verdict of the court was changed, and the qualifying feature "illegal acquisition of narcotic drugs in an unspecified place under circumstances not established by the investigation" was excluded from the charge. The rest of the verdict was left unchanged. By the decision of the Cassation judicial Board of the Almaty City Court dated October 21, 2013, the verdict and the decision of the appellate instance remained unchanged. At the appeal of the prosecutor, this criminal case was re-examined in the cassation instance in accordance with the first part of Article 446-21 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC).
By a decision of the cassation judicial board of the Almaty City Court dated October 20, 2014, the verdict and the decision of the appellate instance were changed, N.'s actions were reclassified from paragraph "b" of part three of Article 259 of the Criminal Code to part 2-1 of Article 259 of the Criminal Code, which imposed 10 years of imprisonment with confiscation of property, with serving a sentence in a special-regime penal colony. In accordance with paragraph "b" of the third part of Article 13 of the Criminal Code, N.'s actions were recognized as a particularly dangerous recidivism of crimes. The rest of the verdict and the decision of the court of appeal remained unchanged. The court found N. guilty of illegal possession of narcotic drugs for the purpose of sale and of selling it on a large scale. In the submission of the chairman of the Almaty City Court, it is indicated that the cassation ruling of October 20, 2014 in respect of N. contradicted the earlier cassation ruling of October 21, 2013 in this case. Having studied the materials of the criminal case, the Supervisory judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan considered that the decisions of the cassation instance of October 21, 2013 and October 20, 2014 in respect of N. are subject to review in accordance with paragraph 3 of the second part of Article 459 of the CPC. According to the second part of Article 446-21 of the CPC, if a newly issued ruling conflicts with an earlier ruling, the court of cassation sends the case to the Supreme Court for review by way of supervision.
Since the earlier cassation decision of October 21, 2013, upheld the verdict and the decision of the appellate instance, and the newly issued decision of the cassation instance of October 20, 2014, they were changed, these decisions came into conflict. The Court of cassation, having established that the operational search measures against N. were carried out in violation of the law, correctly concluded that the proceedings in this case on the episode of N.'s accusation the sale of narcotic drugs from January 15, 2013 is subject to termination, and the actions of the convicted person are subject to retraining under part 2-1 of Article 259 of the Criminal Code. The court's conclusions on N.'s guilt of illegal possession of a large–scale narcotic drug for the purpose of sale and sale to witness M. on January 12, 2013, of a large-scale narcotic drug, heroin, weighing 0.09 grams, are based on the evidence collected in the case, are correct and correspond to the factual circumstances of the case. At the same time, the court of cassation, reclassifying the actions of N. from a particularly serious crime to a serious crime, he sentenced him to 10 years in prison, referring to the requirement of the second part of Article 59 of the Criminal Code, which provides for the imposition of punishment for a particularly dangerous recidivism of crimes – at least three quarters of the maximum sentence provided for the committed crime. The sanction of part 2-1 of Article 259 of the Criminal Code provides for imprisonment from six to twelve years. Accordingly, three-quarters of the maximum sentence is 9 years. In accordance with article 52 of the Criminal Code, a person who commits a crime must be given a fair punishment, necessary and sufficient to correct him and prevent new crimes. The punishment imposed on a convicted person in the form of 10 years in prison is severe. In this regard, the Supervisory Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan considers it possible to reduce the imposed punishment.
Thus, the decision of the cassation judicial board of the Almaty City Court of October 21, 2013 in respect of N. should be canceled, and the decision of the Cassation judicial board of the Almaty City Court of October 20, 2014 should be amended in terms of sentencing. Based on the above, guided by paragraph 3 of the second part of Article 459, paragraphs 2, 5 of the sixth part of Article 467 of the CPC, the Supervisory Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan canceled the decision of the Cassation Judicial Board of the Almaty City Court dated October 21, 2013 in respect of H. The decision of the Cassation Judicial Board of the Almaty City Court dated October 20, 2014 The year in respect of N. was changed and the sentence imposed on him in the form of imprisonment was reduced to 9 years. The rest of the resolution remains unchanged.
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