Participation in an organized criminal group illegal possession for the sale of narcotic drugs
A guilty verdict cannot be based on assumptions and must be supported by a sufficient body of acceptable and reliable evidence. The irremediable doubts about the defendant's guilt are interpreted in his favor by the Verdict of the specialized interdistrict Criminal Court of Almaty dated December 30, 2020: S., who had no previous convictions, was sentenced to 5 years in prison under part 2 of Article 262 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), and 15 years under part 4 of Article 297 of the Criminal Code. imprisonment, under part 2 of Article 287 of the Criminal Code to 1 year of imprisonment. Based on part 4 of Article 58 of the Criminal Code, 16 years of imprisonment in an institution of the maximum security penal system were finally imposed by partial addition of punishments. The term of punishment is calculated from February 19, 2020. The procedural costs have been recovered. The fate of the physical evidence has been resolved by the court. The same verdict convicted A., D., S., and Kh., in respect of which petitions are not considered. By the verdict of the Court of S. He was found guilty of participating in an organized criminal group, being part of a criminal group, of illegal possession for the sale of narcotic drugs and illegal sale of narcotic drugs on a large and especially large scale, as well as of illegal possession for the sale of narcotic drugs on a particularly large scale, repeatedly. He was also found guilty of illegal possession of a gas weapon with the possibility of firing traumatic cartridges, as well as ammunition for it.
Participation in an organized criminal group illegal possession for the sale of narcotic drugs
By the decision of the Judicial Board for Criminal Cases of the Almaty City Court dated March 30, 2021, the verdict against S. remained unchanged. In the petition, the convicted S., disagreeing with the verdict of the court, indicates that during the judicial investigation all the defendants showed that they were not familiar with him and did not have a relationship with him for the purchase of narcotic drugs. Also, the witnesses questioned during the judicial investigation confirmed that they had never seen him before and were not familiar with him. All these circumstances point to his non-involvement in an organized crime. In this regard, he considers his guilt in participating in a criminal group to be unproven. He admits guilt only in possession of narcotic drugs without the purpose of sale. Without disputing his guilt under part 2 of Article 287 of the Criminal Code, he requests that the conviction under part 2 of Article 262 of the Criminal Code be excluded from the sentence and that his actions be reclassified from part 4 of Article 297 to part 4 of Article 296 of the Criminal Code. It follows from the descriptive and motivational part of the verdict that on February 19, 2020, at 18:15 hours, during operational search activities, Almaty city police officers detained S. at the Central City Hospital No. 12 in Almaty. During a personal search, the narcotic hashish with a total weight of 2,290 grams was found and seized. On the same day, at about 20:30 hours, during a search at S.'s place of residence, at the address: Almaty region, Karasai district, village. Kyrgyzauldy St. 13 Tulpar, the narcotic drug hashish with a total weight of 895.79 grams, scales for weighing narcotic drugs were discovered and seized, as well as an illegally stored gas pistol "Streamer–1014" No. K-005359 with the possibility of firing traumatic cartridges and 14 cartridges was discovered and seized.
S.'s guilt in the illegal acquisition and possession of narcotic drugs on an especially large scale for the purpose of sale, as well as in the illegal possession of gas weapons with the possibility of firing traumatic cartridges, as well as cartridges for it, was established during the pre-trial investigation and in the main court proceedings. His guilt in this part is fully confirmed by the evidence collected in the case and is beyond doubt. At the same time, the court's conclusions about S.'s participation in an organized group are not supported by objective and reliable evidence. According to paragraph 14 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001 No. 2 "On certain issues of application by courts of legislation on liability for banditry and other criminal offenses committed in complicity," participation in a criminal group is a completed offense from the moment when a person learned about the criminal nature of the gang or criminal community and gave consent to their participation (membership), regardless of whether they participated in the crimes committed. As mentioned above, the case file confirms the fact of illegal possession of narcotic drugs for sale on a particularly large scale. At the same time, there is no evidence in the case that would reliably indicate that S. was aware of the creation of a criminal group by A., as well as of his consent to participate in it. During the pre-trial investigation and in the main trial, S. testified that he was not familiar with A., D., E. and Kh. The above-mentioned persons also claimed that they did not know S. In fact, S.'s accusation of participation in a criminal group was based on the testimony of M., who testified that he knew M. and A., as well as the testimony of witness L. that M., in respect of whom the case was separated into separate proceedings, was the link between A. and S. Meanwhile, M. testified in court that he knew S. A. has known him for about 3-4 years, as he brought and sold him bed linen. The facts of the sale of narcotic drugs involving S. are not confirmed by the case materials. A money transfer to his card also cannot indicate participation in a criminal group.
Participation in an organized criminal group illegal possession for the sale of narcotic drugs
The testimony of L., as the investigator in the present case, that is, the person concerned, is presumptive and the case materials are not supported. In accordance with article 19 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), a conviction cannot be based on assumptions and must be supported by a sufficient set of acceptable and reliable evidence. Irremediable doubts about the defendant's guilt, as well as doubts arising from the application of criminal and criminal procedure laws, are interpreted in his favor. Taking into account that S.'s confession as one of the participants in an organized criminal group is not supported by the evidence collected in the case, S.'s conviction under part 2 of Article 262 of the Criminal Code should be excluded from the verdict, and his actions should be reclassified from part 4 of Article 297 of the Criminal Code to paragraph 3) of part 3 of Article 297 of the Criminal Code. According to the requirements of paragraph 5 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of the imposition of criminal punishment", the court, when imposing punishment, must necessarily indicate in the verdict for each defendant mitigating and aggravating his responsibility and punishment circumstances. However, the court stated in the verdict that there were no mitigating or aggravating circumstances.
Meanwhile, S. has no previous criminal record, he admitted guilt, and this is indicated in the indictment as a mitigating circumstance. The Judicial Board for Criminal Cases of the Supreme Court amended the judicial acts of the local courts in relation to S. Canceled the judicial acts regarding the conviction of S. under part 2 of Article 262 of the Criminal Code and the criminal case in this part on the basis of paragraph 2) of part 1 of Article 35 of the CPC was terminated due to the absence of elements of a criminal offense in his actions. C. Actions. They were reclassified from part 4 of Article 297 of the Criminal Code to paragraph 3) of Part 3 of Article 297 of the Criminal Code, and the penalty was 11 (eleven) years and 3 (three) months in prison. Based on part 4 of Article 58 of the Criminal Code, 11 (eleven) years and 6 (six) months of imprisonment in an institution of the maximum security penal system were finally imposed by partial addition of punishments. The rest of the judicial acts remained unchanged. The convicted person's petition was partially satisfied.
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