Repeated operational purchase of narcotic drugs with the involvement of the same person imitating criminal activity was carried out in obvious violation of the law, then its results have no legal force.
By the verdict of the specialized interdistrict criminal Court of the Almaty region dated May 13, 2013: M., sentenced under paragraph "c" of the second part of Article 175 of the Criminal Code to 3 years in prison with confiscation of property, under paragraph "b" of the third part of Article 259 of the Criminal Code to 10 years in prison with confiscation of property, on the basis of part three Article 58 of the Criminal Code leads to 11 years of imprisonment with confiscation of property, while serving a sentence in a high-security penal colony. On the basis of paragraph "d" of the first part of Article 88 of the Criminal Code, M. was prescribed compulsory treatment for drug addiction. By the decision of the Appellate Judicial Board for Criminal Cases of the Almaty Regional Court dated July 15, 2013, the sentence was changed, according to paragraph "b" of the second part of Article 175 of the Criminal Code, M. was acquitted because the charges were not proven. The charge of illegal acquisition of narcotic drugs and the use of the third part of Article 58 of the Criminal Code were excluded from the verdict.M.'s conviction under paragraph "b" of the third part of Article 259 of the Criminal Code to 10 years of imprisonment with confiscation of property, while serving his sentence in a high-security penal colony remained unchanged. The rest of the verdict was left unchanged. The cassation instance upheld the judicial acts in the case.
The court found M. guilty of repeatedly selling narcotic drugs (on November 23, 2012 – 0.0 grams of heroin and on November 24, 2012 – 0.24 grams of heroin) to a witness under the pseudonym "Tatarin", as well as possession for the purpose of selling heroin on a large scale (weighing 0.37 grams), which was found in his possession on November 27, 2012 years in custody. Having studied the materials of the criminal case at the request of the lawyer, the supervisory judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan changed the judicial acts issued in the case against M. M. was excluded from the verdict. He was charged with illegal possession for the sale of narcotic drugs (heroin on a large scale – weighing 0.37 grams) for the absence of corpus delicti in his actions. Considering that he is sentenced to imprisonment for an intentionally serious crime, his actions from paragraph "b" of the third part of Article 259 of the Criminal Code were reclassified to part 2-1 of Article 259 of the Criminal Code and he was sentenced to 7 (seven) years of imprisonment with confiscation of property, with serving his sentence in a correctional colony of general regime. M.'s punishment was reduced due to a reduction in the volume of charges. The supervisory Board partially satisfied the lawyer's petition in the interests of the convicted person on the following grounds. M.'s guilt in the illegal sale of narcotic drugs on November 23, 2012 – heroin, with a total weight of 0.07 grams, was proved by the case materials. At the same time, the case materials accusing M. of selling narcotic drugs, heroin, with a total weight of 0.24 grams, on November 24, 2012, were collected in gross violation of the basic principle of the criminal process – legality. Thus, according to the Law "On Operational Investigative Activities", the tasks of operational investigative activities are the detection, prevention, suppression and disclosure of crimes. The basis for the termination of operational search activities is the fulfillment of tasks for which the OPM was provided. Paragraph 9-4 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated May 14, 1998 No. 3 with amendments and additions made by resolutions of the Plenum of the Supreme Court of the Republic of Kazakhstan dated April 30, 1998 No. 2, December 22, 2000 No. 19, Normative Resolutions of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 7 and April 21 2011 No. 1 "On the Application of Legislation in cases related to illicit Trafficking in Narcotic Drugs, Psychotropic and poisonous Substances" established, that the prompt purchase of narcotic drugs or psychotropic substances and other operational search activities are carried out only if there are grounds provided for by law for their conduct, with the knowledge and under the supervision of the body carrying out operational search activities in accordance with the tasks assigned to it and within its competence. In accordance with the clarifications contained in paragraph 18 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 6, 2013 No. 3 "On the application in criminal proceedings of certain norms of legislation regulating the protection of state secrets", after conducting an operational purchase or other OPM (special or general) to document a crime that is not ongoing, and it is carried out at the same time, for example, the sale of narcotic drugs, Repeated MPM against the same person in order to identify a similar crime is allowed only by issuing an appropriate resolution indicating in it the grounds provided for by law. On November 24, 2012, the criminal prosecution authorities conducted a repeated operational search event - the prompt purchase of narcotic drugs from M. with gross violations of the above–mentioned requirements of the law and Regulatory rulings of the Supreme Court of the Republic of Kazakhstan. Thus, on November 23, 2012, the criminal prosecution authorities, with the participation of a witness under the pseudonym "Tatar", who imitates criminal activity, carried out an operational purchase of narcotic drugs – 0.07 grams of "heroin" from M. As a result of the operational purchase, the objectives of the operational search activity were fully achieved, evidence of the crime was collected and secured. In accordance with the objectives of the criminal process, the prosecution authorities had to stop M.'s socially dangerous actions and bring him to criminal responsibility. The continuation of the additional MPM in relation to the convicted person could only take place in order to identify the sources of his purchase of narcotic drugs, an organized criminal group or other purposes of the criminal process with the issuance of an appropriate reasoned decision. However, the criminal prosecution authorities, in violation of these requirements, without issuing any resolution and in the absence of a reason for repeated OPM, on November 24, 2012, again carried out a similar prompt purchase of narcotic drugs from M. with the involvement of the same person imitating criminal activity, a witness under the pseudonym "Tatar". Since the repeated operational purchase was carried out in obvious violation of the law, its results, in accordance with the requirements of article 77 of the Constitution and article 116 of the CPC, do not have the legal force of proof. Under such circumstances, the proceedings in this criminal case on the episode of M.'s accusation of selling narcotic drugs on November 24, 2012, are subject to termination. In addition, when accusing M. The criminal prosecution authorities and the court, in violation of the principle of the presumption of innocence, rejected evidence indicating a lesser degree of guilt of the convicted person without sufficient grounds and interpreted the existing doubts not in favor of the accused. Thus, the materials of the criminal case do not refute M.'s arguments that he kept 0.37 grams of "heroin" found on him on November 27, 2012 for personal use and had no intention of selling them, but they are confirmed in them. According to the conclusion of the forensic narcological examination, M. suffers from panic and behavioral disorders due to heroin use and needs compulsory treatment. In the circumstances described above, it should be recognized that the prosecution's conclusions that M. had stored 0.37 grams of heroin for marketing purposes are based on assumptions. Since the law does not provide for criminal liability for the illegal possession of narcotic drugs on a large scale without the purpose of sale, there is no corpus delicti in M.'s actions to store 0.37 grams of heroin. In this regard, M.'s actions, expressed in the sale of narcotic drugs on a large scale (0.07 grams of "heroin"), should be qualified under part 2-1 of Article 259 of the Criminal Code.
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