Principles of criminal procedure The body conducting the criminal procedure, in accordance with the requirements of the CPC, must undertake a comprehensive, complete and objective investigation of the circumstances of the case, necessary and sufficient for the proper resolution of the case.

By the verdict of the specialized interdistrict criminal Court of the South Kazakhstan region dated December 22, 2016, A., previously convicted: 1) on June 23, 2003, under paragraphs "a, b, c, d" of part 2 of Article 179, part 1 of Article 259 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), to 6 years in prison; 2) on October 5, 2007, under part 3 of Article 175, under paragraph "c" of part 3 of Article 178 of the Criminal Code to 9 years and 6 months in prison, - convicted under part 2 of Article 297 of the Criminal Code to 10 years in prison with confiscation of property, while serving his sentence in a special-regime penal colony. On the basis of paragraph 1) of part 2 of Article 14 of the Criminal Code, dangerous recidivism of crimes was recognized in A.'s actions. Procedural costs in the amount of 64,167 tenge were collected from the convicted A. to the state income. By the verdict of the court, A. was found guilty of illegal possession for the sale and distribution of narcotic drugs - "heroin" (hereinafter – "heroin"), on a large scale, weighing 0.2245 grams. By the decision of the Judicial Board for Criminal Cases of the South Kazakhstan Regional Court of February 8, 2017, the verdict of the court remained unchanged. At the same time, the amount of procedural costs collected from the convicted person was reduced from 64,167 tenge to 42,511 tenge. The Prosecutor General's protest raises the issue of changing the judicial acts against A. due to the incorrect application of the criminal law and the inconsistency of the court's conclusions set out in the verdict with the factual circumstances of the case. Requests that A.'s actions be reclassified from Part 2 of Article 297 of the Criminal Code to part 5 of Article 28, part 3 of Article 296 of the Criminal Code and, on the basis of part 1 of Article 71 of the Criminal Code, the proceedings be terminated after the expiration of the statute of limitations for criminal prosecution. The arguments of the Prosecutor General set out in the protest are well-founded and must be satisfied. According to paragraph 18 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On judicial verdict", due to the presumption of innocence and in accordance with Article 19 of the CPC, a guilty verdict cannot be based on assumptions and must be supported by a sufficient body of reliable evidence. However, the court's verdict against A. does not meet these requirements. Thus, in accordance with paragraph 9-1 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated May 14, 1998 No. 3 "On the application of legislation in cases related to illicit trafficking in narcotic drugs, psychotropic substances, their analogues and precursors", the actions of an intermediary in the sale or acquisition of narcotic drugs or psychotropic substances, their analogues should be qualified as complicity. in the sale or purchase of narcotic drugs or psychotropic substances, their analogues, depending on in whose interests (the seller or the buyer) the intermediary acts.

If the intermediary acts in the interests of both the buyer and the seller, then he is responsible for complicity in the sale. If a person, at the request of the actual owner of narcotic drugs or psychotropic substances, their analogues, is directly involved in their sale, then his actions are subject to qualification as co-fulfillment in the sale. It follows from the materials of the criminal case that on February 2, 2016, the staff of the DEA of the Department of Internal Affairs of South Kazakhstan Region received operational information about A.'s occupation with the sale of narcotic drugs. Since February 12, 2016, in relation to A. secret investigative actions were carried out (hereinafter – NSD). Taking into account the conducted NDS, a video recording of a control purchase by a conditional buyer of a "Chip" from convict A. was recorded on February 22, 2016. It follows from the video recording and the transcript of the conversation that the conditional buyer of the Chip, after phoning A., arranges a meeting with him in the area of his house. At the meeting, the conditional buyer of the "Chip" is interested in the possibility of purchasing a narcotic drug and, without waiting for an answer, transfers money in the amount of 10,000 tenge to A. In turn, A. guarantees the return of money in case of non-purchase of narcotic drugs. Further, it can be seen how A. moves away in an unknown direction and for more than 1 hour before the appearance of A., the conditional buyer makes several calls to him, learning the reasons for the delay. At 5:02 p.m., A. approaches the conditional buyer and talks about the fear of the dealer named "Light-haired" to sell "heroin" and his assumption that these are "cop" movements. 5:10 p.m. he leaves again in an unknown direction, and the conditional buyer is waiting in the area of his house. During the waiting period, the conditional buyer calls A. several times. and he asks to hurry up a third party with the sale of the drug. By 6 p.m., the conditional buyer learns about A.'s purchase of "heroin" on the next call and gives him permission to take some of the "heroin" for himself. At 6:25 p.m., A. hands over a paper parcel to the conditional buyer.

At the same time, he explains that he also gave some of the heroin to an unidentified person. Thus, it is objectively established that A. He is not a drug dealer, as it is clear from the video and the transcript of the conversation that he had been trying to purchase "heroin" from a third party for more than 2 hours. It also follows from the statement of the conditional buyer of "Chip" to law enforcement agencies that A. sells 1 gram of "heroin" for 5,000 tenge. At the same time, as it is established, the conditional buyer, transferring 10,000 tenge to A., receives only 0.22 grams of "heroin" instead of the required 2 grams. This circumstance also indicates that A. is an intermediary in the purchase of "heroin". In addition, during a personal search and a search of the house where A. lives, no narcotic drugs or other items for his packaging were found. No evidence has been obtained by the criminal prosecution body that A. acted in the interests of the trafficker when purchasing "heroin" or acted as a drug seller on his own. A. himself claimed in the main trial that he had indeed helped to purchase "heroin" to a conditional buyer whom he had known since childhood. Previously, he had repeatedly used "heroin" with Chip. On February 22, 2016, "Chipa" asked to buy "heroin" for him, while the latter knew that he was buying "heroin" from a guy named "Ruslan". A.'s arguments that he purchases "heroin" from a third party are confirmed by the video recording of the control purchase. However, the pre-trial investigation body limited itself to allocating materials for a separate production in relation to the persons from whom A. had purchased "heroin". The above indicates a failure by the body conducting the criminal proceedings to comply with the requirements of article 24 of the CPC for a comprehensive, complete and objective investigation of the circumstances necessary and sufficient for the proper resolution of the case. The results of the NSD in the case also indicate that on February 22, 2016, it was an unidentified person who illegally sold "heroin" to a conditional buyer through an intermediary, convicted A. At the same time, regarding the actions of A. as a criminally punishable act provided for in Article 297 of the Criminal Code, the court did not take into account that the subjective side of this crime is characterized by an intentional form of guilt, that is, the perpetrator's intent should be aimed at distributing narcotic drugs.

And this intention must be formed by him before the start of an operational action against him. According to the case file, A. denied any intent to sell drugs, claiming that on February 22, 2016, he had purchased drugs only at the request of a friend of "Chip". Thus, the criminal prosecution authority did not obtain sufficient evidence that A. was selling "heroin" to a conditional buyer. In such circumstances, the judicial board considers that A.'s actions are seen as complicity in the illegal acquisition of "heroin" without the purpose of selling on a large scale. Consequently, his actions are subject to reclassification to part 5 of Article 28, part 3 of Article 296 of the Criminal Code, which, according to part 3 of Article 10 of the Criminal Code, refers to criminal offenses.

In accordance with paragraph 1) In part 1 of Article 71 of the Criminal Code, a person is released from criminal liability if 1 year has expired since the date of the commission of a criminal offense, in this regard, A. is subject to exemption from criminal liability, since he committed the criminal offense on February 22, 2016. According to paragraph 4) of part 2 of Article 38 of the CPC, a person sentenced to imprisonment in cases of a change in the qualification of what he has done to an article of the Criminal Code of the Republic of Kazakhstan providing for liability for a less serious criminal offense, upon suspicion or accusation of which this Code does not allow detention or detention, or the appointment of a new, more lenient punishment under this article, or to exclude a part of the charge from the sentence and reduce the punishment in this regard, has the right to compensation for damage caused as a result of the relevant illegal actions of the authority., leading a criminal trial. Based on the above, the judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in respect of A. and reclassified his actions under part 2 of Article 297 of the Criminal Code to part 5 of Article 28, part 3 of Article 296 of the Criminal Code. On the basis of part 1 of Article 71 of the Criminal Code, A. was released from criminal liability due to the expiration of the statute of limitations for criminal prosecution. On the basis of article 39 of the CPC, A. is recognized as having the right to compensation for damage caused as a result of illegal actions of the body conducting the criminal proceedings. He was released from custody immediately, and the Prosecutor General's protest was satisfied. 

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