Organization of illegal migration of foreigners and stateless persons on the territory of the Republic of illegal entry, departure, displacement
By the verdict of the Enbekshi District Court of Shymkent dated September 24, 2019: K. not previously convicted, acquitted by Part Two of Article 394 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) due to the absence of a criminal offense in his actions; Ch. not previously convicted, found guilty by part two of Article 394 of the criminal code, released outside the Republic of Kazakhstan for a period of 5 years and imposed a fine in the amount of 2,500 monthly calculation indices. By the verdict of the court Ch. 31 citizens of the PRC were found guilty of organizing illegal migration to the territory of the Republic through the International Airport of Almaty, taking advantage of the fact that citizens of China in transit are allowed to enter through a 72-hour visa-free regime by collusion of a group of people. By the resolution of the judicial board for criminal cases of the Shymkent City Court of December 6, 2019, the sentence was changed, and the convicted Ch. An additional penalty in the form of expulsion outside the Republic of Kazakhstan with the establishment of a ban on entry into the territory of the Republic of Kazakhstan for a period of 5 years, imposed on the basis of Article 51 of the criminal code, is excluded, and the rest of the sentence is left unchanged.
In his protest, the Acting Prosecutor General asked to cancel the sentence of the Enbekshi District Court of Shymkent dated September 24, 2019 and the part of the acquittal against K. of the resolution of the judicial board for criminal cases of Shymkent City Court dated December 6, 2019 and the part of the exclusion of the additional punishment against Ch. of the resolution of the judicial board for criminal cases of Shymkent City Court dated December 6, 2019 and send the part of the criminal case against K. to the judicial board for criminal cases of Shymkent city court for new consideration. The Judicial Board recognized as valid the verdict of the court of first instance, which acquitted K. with the second part of Article 394 of the criminal code. According to the documents of the criminal case, as evidence of guilt in the commission of a criminal offense provided for by Part Two of Article 394 of the Criminal Code, the pre-trial investigation body submitted a specialist's conclusion dated April 11, 2019, a protocol of inspection of things and documents dated April 25, 2019, a mobile phone of the brand "Iphone X", flash drives with a capacity of "SEAGATE Expansion Portable Drive 1 TV" and "64 GV DTSE9". According to the receipt protocol dated February 21, 2019, the interrogator I. justified K. took a mobile phone of the brand "iPhone 7", His received mobile phone was photographed and attached to the case. According to the first photo-table taken, K. received a cell phone with a white front face. According to the inspection protocol dated February 21, 2019, K. the received mobile phone "iPhone 7" was examined and found that it has the "Wechat" application on its phone, it is registered with the number 18,605,523,499, there is no data inside, the external image of the mobile phone was re-photographed and attached to the case. In accordance with the decree of the interrogator of March 15, 2019, it is assigned to conduct a computer-technical study of the mobile phone of the brand "iPhone 7" received from K. And according to the conclusion of a specialist on April 11, 2019, a study was carried out on a mobile phone of the "iPhone X" brand, which was indicated to belong to K. Also, according to the protocol of inspection of things and documents of the interrogator dated April 25, 2019, this mobile phone of the "iPhone X" brand was examined. But, in the case, the mobile phone "iPhone X" was not taken. At the same time, during the main trial, the members of the investigative team could not give the court a clear answer about the source from which the iPhone X mobile phone was obtained, where the received iPhone 7 mobile phone was located. At the main trial, the specialist who conducted computer research K. The mark of the phone belonging to K. was indicated as "iPhone 7" in accordance with the decree of the interrogator, and the study indicated that a mobile phone of the brand "iPhone X" was presented and conducted a study on the latter.
Organization of illegal migration of foreigners and stateless persons on the territory of the Republic of illegal entry, departure, displacement
In this case, the court of first instance, having recognized the mobile phone "iPhone X" from an unknown source and considering it inadmissible to use it as evidence, issued a resolution on the recognition of the mobile phone "iPhone X" as physical evidence dated March 10, 2019, the conclusion of a specialist dated April 11, 2019, the protocol of inspection of things and documents dated April 25, 2019, The conclusion of May 5, 2019 that "SEAGATE Expansion Portable Drive 1 TV" and "64 GV DTSE9" are subject to exclusion from the list of evidence, invalidating the resolution on the recognition of flash cards as physical evidence. In such a context of the case, the court's conclusions that the mobile phone of the "iPhone X" brand, which served as the basis for the accusation against K. with the second part of Article 394 of the criminal code, since the investigative actions carried out against him were recognized by the court as illegal, will not be the basis for the conviction against K. and will not entail criminal liability, are also considered
At the same time, the judicial board considers the decision of the court of Appeal on December 6, 2019 in relation to Ch. Because the latter is convicted, that is, the disposition of part two of Article 394 of the criminal code does not provide for the punishment of expulsion. Also, Article 51 of the criminal code does not provide for the competence to impose the specified additional punishment at the discretion of the court. According to the Constitution, the restriction of any human rights must be reflected in the law. That is, the court, on its own initiative, imposed an additional penalty on the convicted person in the form of expulsion from the Republic of Kazakhstan and violated the requirements that a person found guilty of committing a criminal offense provided for in the first part of Article 52 of the Criminal Code shall be punished fairly within the limits established by the relevant article of the special part of this code and taking into account the provisions of the General part of this code. Therefore, the judicial board considers the decision of the court of appeal to cancel the additional punishment illegally imposed on Ch. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan left unchanged the judicial acts of local courts in relation to the convicted K. and Ch. The protest of the Acting Prosecutor General of the Republic of Kazakhstan was dismissed.
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