Qualification of acts related to the illicit trafficking of narcotic drugs carried out by the bodies of the preliminary investigation
The study showed that when qualifying acts related to drug trafficking, the authorities of the preliminary investigation and the prosecutor's office have certain difficulties, as evidenced by the change in the qualification of acts during judicial review. The reason for the change in the classification of crimes is mainly the failure of the preliminary investigation and prosecutor's offices to comply with the requirements of article 24 of the CPC on a comprehensive, complete and objective investigation of the circumstances necessary and sufficient for the proper resolution of the case. For example, B. He was put on trial under Part 2-1 of Article 259 of the Criminal Code for the illegal acquisition, storage and sale of narcotic drugs on a large scale. He was charged with selling on February 19 and 22, 2011, the narcotic drug marijuana, dried, weighing 4.16 grams. During his arrest, the narcotic drug marijuana was seized in the amount of 7.56 grams. and during an inspection of his house, 28.05 grams of marijuana were seized from him. However, during the judicial investigation, evidence of B.'s guilt was established only upon the sale of narcotic drugs to S. On February 22, 2011, and the fact of the sale of narcotic drugs on February 19, 2011 is known only from the testimony of witness S. himself, no other evidence has been obtained on this fact. In this regard, the prosecutor involved in the case refused to charge under Part 2-1 of Article 259 of the Criminal Code, B. asked to be reclassified to part 2 of Article 259 of the Criminal Code. By the verdict of the Semey court No. 2 dated May 17, 2011, B. was convicted under Part 2 of Article 259 of the Criminal Code. In most cases, the criminal prosecution authorities do not provide sufficient evidence of the existence of a marketing purpose in the acquisition and storage of narcotic drugs, which leads to a change in the classification of crimes by the courts. Whereas, when deciding on the existence of intent for illegal storage for the purpose of sale, one should proceed from the totality of evidence that these funds are actually prepared for sale (for example: the discovery of these funds and substances in large quantities, excluding only their personal use, packaging for doses, the availability of tools or equipment for their manufacture or packaging, establishing the fact that the perpetrator himself does not use drugs, etc.) (paragraph 3 of the regulatory decree of the Supreme Court of May 14, 1998). By the authorities of the preliminary investigation of L. He was charged under Parts 2-1 of Article 259, paragraph "b" of Part 3 of Article 259 of the Criminal Code with the illegal acquisition, possession for the sale and sale of narcotic heroin of 0.60 grams, as well as with the illegal acquisition, possession for the sale of heroin of 3.53 grams on an especially large scale.
Qualification of acts related to the illicit trafficking of narcotic drugs carried out by the bodies of the preliminary investigation
At the same time, during the consideration of the case, the court found L.'s guilt in the illegal acquisition and possession of narcotic drugs on an especially large scale weighing 3.53 grams proven, however, the prosecution did not provide evidence of the purpose of the sale. According to the case file, the heroin was purchased by L. already packaged. However, this circumstance cannot indicate his intent to purchase and store heroin for the purpose of sale, since it has been established that L. According to a medical report, he suffers from drug addiction, which indicates the need for him to constantly purchase narcotic drugs and receive a daily dose. Taking into account these circumstances, as well as the weight of heroin, slightly exceeding the limits of an especially large size, by the verdict of the specialized criminal court of the Kostanay region dated February 06, 2012, L.'s actions were reclassified from paragraph "b" of Part 3 of art. 259 of the Criminal Code to parts 1-1 of art. 259 of the Criminal Code, he was found guilty of acquiring and storing narcotic drugs on an especially large scale without the purpose of selling them and was sentenced under this article to 3 years in prison, and under Part 2-1 of Article 259 of the Criminal Code to 6 years in prison, based on Article 58 of the Criminal Code, 6 years in prison with confiscation of property were finally imposed. By the verdict of the specialized interdistrict Criminal Court of the East Kazakhstan region dated November 09, 2011, R. He was sentenced under paragraph "b" of Part 3 of Article 259, Part 1 of Article 320 of the Criminal Code to 11 years of imprisonment with confiscation of property, while serving his sentence in a high-security penal colony. By the decision of the appellate instance of the East Kazakhstan Regional Court dated January 25, 2012, the verdict of the court was changed, R.'s actions were reclassified from paragraphs "b" of Part 3 of Article 259 of the Criminal Code to parts 1-1 of Article 259 of the Criminal Code. By the decision of the Supervisory Judicial Board for Criminal Cases of the Supreme Court dated June 19, 2012, the decision of the Appellate Board for Criminal cases of the regional court dated January 25, 2012 was canceled, while the verdict of the specialized interdistrict criminal court dated November 09, 2011 remained unchanged. The Court of Appeal, deciding that the convict's intent to sell narcotic drugs on a particularly large scale was unproven, argued that "the discovery and seizure of 13 polymer bundles of narcotic drugs by themselves cannot serve as proof that they were prepared specifically for sale, and that the convict should have been detained at the time of purchase or sale.". Whereas the conclusions given by the court of appeal contradict the explanations contained in the normative decision of the Supreme Court of May 14, 1998, that when deciding on the existence of intent to
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