Physical evidence the procedure for the seizure, accounting, storage, transfer and destruction of physical evidence, documents on criminal cases
When deciding on the fate of material evidence, the bodies of preliminary investigation and the courts are guided by the norms of the Code of Criminal Procedure, the Instruction "On the procedure for the seizure, accounting, storage, transfer and destruction of material evidence, documents in criminal cases, civil cases and cases of administrative offenses by the court, the prosecutor's office, preliminary investigation, inquiry and forensic examination", approved by the joint by order of the Minister of Justice, the Prosecutor General, the Chairman of the National Security Committee, the Minister of Internal Affairs, The Minister of State Revenue of the Republic of Kazakhstan (hereinafter referred to as the Instruction on the procedure for the seizure, Accounting, Storage, Transfer and Destruction of physical evidence), "Rules for the destruction by Criminal prosecution authorities of narcotic drugs, psychotropic substances that are material evidence in criminal cases", approved by Resolution of the Government of the Republic of Kazakhstan dated November 06, 2008 No. 1017 (hereinafter referred to as the Rules of Destruction bodies of criminal prosecution of narcotic drugs).
Narcotic drugs in quantities exceeding the upper limit for classifying them as particularly large in size for each name (type), after examination on the basis of a decision of the criminal investigation body, with the consent of the prosecutor, must be destroyed in accordance with the established procedure, with the exception of samples attached to the case, which are recognized as material evidence. In order to attach them to a criminal case by the body of inquiry, the investigator, on the basis of an appropriate resolution agreed with the prosecutor, in the presence of witnesses, with the mandatory participation of a specialist and the use of video recordings, samples must be taken from the total mass of seized narcotic drugs and psychotropic substances in an amount equal to the especially large amount established by law for the relevant narcotic drug, psychotropic substance, substances, by each name (type) (part 4 of Article 223 of the CPC). However, these legal requirements are not always respected. For example, the criminal case against Sh. 259 of the Criminal Code was submitted to the Alginsky District Court on January 18, 2011. The physical evidence in the case of marijuana weighing 2,309.80 g. minus the weight spent on the examination, the senior investigator from the Alginsky District Department of Internal Affairs completely handed over to the storage room, without sampling in an amount equal to the size of a particularly large size, that is, 1,000 grams of dried marijuana. However, neither the prosecutor nor the court paid any attention to this violation of the law. The fate of these narcotic drugs, marijuana, dried on an especially large scale weighing 2,309.80 grams, was resolved only by the verdict of the district court of February 23, 2011. Another example. In the criminal case against Z. in committing a crime under Parts 1-1 of Article 259 of the Criminal Code, the preliminary investigation body selected the narcotic drug "dried marijuana" weighing not 1 kg, as established by law, but 2 kg. 208 gr. 04 mgr.
Physical evidence the procedure for the seizure, accounting, storage, transfer and destruction of physical evidence, documents on criminal cases
By the verdict of the Bayzak district court of Zhambyl region dated August 02, 2011, a decision was made to destroy this narcotic drug. The destruction of narcotic drugs and psychotropic substances is carried out on a commission basis. By order of the first head, a commission of at least five people is established in the criminal prosecution authorities, which includes the head of the investigation (inquiry) units or a person replacing him, the employee who handled the case, an employee of the office, the person responsible for storing material evidence and a representative of the health authority (paragraph 11 of the Rules for the Destruction of Bodies criminal prosecution of narcotic drugs). Nevertheless, in the criminal case against A. The authorities of the preliminary investigation of the Mangystau region, after selecting the required amount of narcotic substance, destroyed the remaining amount of dried marijuana in the amount of 18,849.64 gr. a commission consisting of two representatives of the investigating authorities and a narcologist. Meanwhile, according to the above Rules, the commission for the destruction of narcotic drugs must include at least five people.
In addition, in violation of paragraph 16 of the Rules, the procedure for the destruction of narcotic drugs was not recorded with photographs and videos, and photos and videos were not attached to the materials of the criminal case. A photocopy of the act on the destruction of drugs, carried out by order of the court, is also attached to the case, which, according to the Instructions on the procedure for the seizure, accounting, storage, transfer and destruction of physical evidence, is not permissible. Material evidence is attached to the case by a decision of the body conducting the criminal proceedings, and is with it until the verdict enters into legal force or the decision to terminate the case (part 2 of Article 121 of the CPC). However, in the criminal case against K. under paragraph "b" of Part 3 of Article 259 of the Criminal Code, the money used for the "operational purchase" of marijuana and subsequently seized in the amount of 4,000 tenge before sentencing was not saved. So, the investigator returned the money according to the report to operative K., since it belonged to him. In addition, defendant K.'s personal money was also seized. in the amount of 700 tenge, however, their withdrawal is not indicated anywhere. By the verdict of the specialized interdistrict criminal court of the East Kazakhstan region dated March 04, 2011, K. was sentenced to 10 years in prison under paragraph "b" of Part 3 of Article 259 of the Criminal Code. The destruction of narcotic drugs, psychotropic substances, precursors, toxic substances and potent drugs, cold steel and firearms, ammunition is carried out as part of an investigator or an employee of the body of inquiry, a representative of the military department, health care and other special government agencies, a responsible person who holds the material evidence, an employee of the office and a bailiff. The act of destruction is attached to the case (paragraph 75 of the Instruction on the procedure for the seizure, accounting, storage, transfer and destruction of physical Evidence).
At the same time, in cases considered by the specialized interdistrict criminal court of the West Kazakhstan region on charges of S. under paragraphs "b,c" of Part 3 of Article 259 of the Criminal Code, on charges of Sh., Z. under paragraphs "a,b,c" of Part 3 of Article 259 of the Criminal Code, the acts of destruction were signed by the commission as part of the narcologist and the staff of the National Security Committee, and the bailiff and an employee of the court office, as required by the above-mentioned Instructions, did not participate in the destructiothe same time, in cases considered by the specialized interdistrict criminal court of the West Kazakhstan region on charges of S. under paragraphs "b,c" of Part 3 of Article 259 of the Criminal Code, on charges of Sh., Z. under paragraphs "a,b,c" of Part 3 of Article 259 of the Criminal Code, the acts of destruction were signed by the commission as part of the narcologist and the staff of the National Security Committee, and the bailiff and an employee of the court office, as required by the above-mentioned Instructions, did not participate in the destruction. It should be noted that employees of the chancery of this court practically do not take part in the destruction of narcotic drugs, mainly only the bailiff participates in the destruction. When making a decision on the refusal to initiate criminal proceedings, on the termination of criminal proceedings or sentencing, the issue of material evidence must be resolved (part 3 of Article 121 of the CPC). The decision on the issue of physical evidence must be contained in the operative part of both the indictment and the acquittal (article 382 of the CPC). However, in the operative part of the verdict handed down by the Shusky District Court of the Zhambly region on August 24, 2011 against the convicted E., the court did not resolve the issue of physical evidence, a narcotic drug - "dried marijuana" weighing 2 kg. 2 gr., although it was destroyed during the execution of the sentence.
In some cases, the courts misome cases, the courts mistakenly indicated in the verdict that the entire mass of narcotic drugs had been destroyed, while some of the narcotic drugs had already been destroyed and only selected samples remained in storage. Such violations were committed by the judges of the Merken district court of the Zhambyl region in criminal cases against P., B., and I. The verdict and court decision that have entered into legal force are binding on all state bodies, local governments, legal entities, officials, and citizens without exception and are subject to strict enforcement throughout theThe verdict and court decision that have entered into legal force are binding on all state bodies, local governments, legal entities, officials, and citizens without exception and are subject to strict enforcement throughout the territory of the Republic of Kazakhstan. The authorities executing the sentence immediately notify the court that issued the sentence of its execution (Article 449 of the CPC). At the same time, the verdict of the Shemonaikha district Court of the East Kazakhstan region against I., regarding the destruction of physical evidence, was executed only 4 months later. So, this sentence entered into force on ASo, this sentence entered into force on August 01, 2011, however, the physical evidence is heroin, in the amount of 7.44 grams. It was destroyed by the Department of Customs Control in East Kazakhsta
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