Sentencing On charges of drug smuggling

By the verdict of the Kordai District Court of Zhambyl region dated October 11, 2018: K., who had no previous criminal record, was sentenced under paragraph 5) of part 2 of Article 286 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) with the application of part 3 of Article 55 of the Criminal Code to 6 years in prison, under part 3 of Article 296 of the Criminal Code to a fine of 100 monthly calculation indices in the amount of 240,500 tenge. Based on part 3 of Article 58 of the Criminal Code, 6 years of imprisonment were finally imposed on the aggregate of criminal offenses by absorbing a less severe punishment with a more severe one. In accordance with part 1 of Article 63 of the Criminal Code, the imposed punishment was decided to be considered conditional, with the establishment of probation control for the entire term of the sentence, with the assignment of duties provided for by law. Court costs in the amount of 46,540 tenge were collected from convicted K. to the state revenue, and a compulsory payment in the amount of 48,100 tenge was made to the Victims Compensation Fund. By the verdict of the court of K. He was found guilty of illegal possession without the purpose of selling a narcotic drug - cannabis resin, weighing 0.94 grams, on a large scale, as well as illegal movement of the specified narcotic drug on a large scale across the State border of the Republic of Kazakhstan. The case was not considered on appeal. In the protest, the Prosecutor General raises the issue of changing the court verdict due to the incorrect application of the criminal law. It is indicated that K. was detained with a narcotic drug while passing through border control and did not cross the State border of Kazakhstan. In this regard, his actions should be qualified under part 3 of Article 24, paragraph 5) of part 2 of Article 286 of the Criminal Code. Regarding the episode of K.'s accusation under Part 3 of Article 296 of the Criminal Code, the protest states that part 3 of Article 296 of the Criminal Code is unnecessarily imputed, all the signs of this criminal offense are fully covered by the corpus delicti provided for in Article 286 of the Criminal Code, and when sentencing under paragraph 5) of part 2 of Article 286 of the Criminal Code, as containing a more severe sanction, it also absorbs the punishment. for misconduct under part 3 of Article 296 of the Criminal Code.

Sentencing On charges of drug smuggling

The protest refers to the clarification of paragraph 11 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 18, 1997 No. 10 "On the practice of applying legislation on criminal liability for smuggling" stating that in cases of committing, along with smuggling, other criminal offenses, in particular, related to currency, narcotic drugs, firearms, ammunition, etc., or with violation of the State Border, which are subject to other control than customs, The act must be qualified according to the totality of the committed criminal offenses provided for by the relevant norms of the criminal law. The protest claims that it follows from the meaning of this explanation that the fact that the contraband has been completed is a prerequisite. According to the prosecutor, the commission of a crime on the territory of Kazakhstan is possible only if the person has actually crossed the State border. But since K. He was unable to bring narcotic drugs into the country, the drugs could not be the object of other control. Therefore, the protest raises the issue of termination of proceedings under part 3 of Article 296 of the Criminal Code for the absence of a criminal offense, exclusion of the application of part 3 of Article 58 of the Criminal Code, for the episode of smuggling – the issue of reclassifying K.'s actions to part 3 of Article 24, part 2 of Article 286 of the Criminal Code, sentencing in accordance with the requirements of part 3 of Article 56, part 3 of Article 55 of the Criminal Code in the form of 4 years and 6 months of imprisonment with the application of the rules of part 1 of Article 63 of the Criminal Code and the establishment of probation control for the entire term of punishment. According to the established factual circumstances of the case, the convicted K. He illegally kept a narcotic substance in his pants pocket – cannabis resin weighing 0.94 grams, which was discovered and seized from him on September 10, 2019 during a personal search conducted during passport control at the crossing of the State Border of the Republic of Kazakhstan at the Kordai checkpoint. These facts are confirmed by the confessions of K., the protocol of K.'s personal search, the testimony of witnesses about the circumstances of the seizure of narcotic drugs from the convict, the conclusion of the examination, which determined that the seized from K. The substance is a narcotic drug, cannabis resin, weighing 0.94 grams. The evidence provided proves the correctness of the court's conclusions about K.'s illegal possession of narcotic drugs on a large scale without the purpose of sale and qualification of his actions under part 3 of Article 296 of the Criminal Code. As for the episode of drug smuggling charges, the court, having correctly established the factual circumstances of the case, gave an incorrect legal assessment of the actions of the convicted person, which led to an incorrect sentencing.

According to paragraphs 5, 9 of Article 19 of the Law of the Republic of Kazakhstan dated January 16, 2013 "On the State Border of the Republic of Kazakhstan" (hereinafter referred to as the Law), when persons pass through checkpoints, as well as in other places where they pass through the State Border, the passport control line acts as the State Border. The State Border crossing is considered completed upon completion of the border control procedure and upon departure of the person outside the checkpoint, as well as another place where the State Border crossing is carried out. He was detained during the verification activities and did not pass the passport control line, did not cross the State border of the Republic of Kazakhstan. In such circumstances, the arguments of the protest that K. He has not completed his intent to move narcotic drugs from Kyrgyzstan to Kazakhstan, and his actions are subject to qualification under part 3 of Article 24, paragraph 5) of part 2 of Article 286 of the Criminal Code as an attempt to smuggle, that is, the movement of narcotic drugs on a large scale across the State border of the Republic of Kazakhstan, are justified.

At the same time, one cannot agree with the arguments of the protest about the need to delete part 3 of Article 296 of the Criminal Code as unnecessarily imputed, that the composition of article 286 of the Criminal Code fully covers all the signs of misconduct provided for in Article 296 of the Criminal Code. The protest, referring to paragraph 11 of the Supreme Court's regulatory resolution No. 10 of July 18, 1997 "On the practice of applying legislation on criminal liability for smuggling," states that a prerequisite for qualifying a set of crimes in drug smuggling is the fact that the contraband has been completed. According to the prosecutor, the commission of a crime on the territory of Kazakhstan is possible only if the person has actually crossed the State border. And since K. He was unable to bring narcotic drugs into the country, the drugs could not be the object of other control. The protest claims that the smuggling of narcotic drugs cannot be carried out without its storage and does not require additional qualifications. Correctly referring to the clarifications contained in the regulatory resolution, the prosecutor misinterpreted the event as referring only to the case of the completed contraband train. This clarification explicitly states that when, along with smuggling, another crime is committed, including illegal possession of narcotic drugs, these actions should be classified according to the totality of the criminal offenses committed. Moreover, as follows from paragraph 14 of Article 2, Article 19 of the Law, the passage of persons, vehicles, goods and goods across the State Border is carried out at checkpoints. A checkpoint across the State Border is an area within a railway, automobile station or station, a sea or river port, an international airport or airfield, as well as another specially designated area with appropriate infrastructure in the immediate vicinity of the State Border, where persons, vehicles, goods and goods are allowed to pass. This Law establishes a regime at checkpoints – the procedure for entry, stay, movement and exit of persons, vehicles, import, location, movement, export of goods and goods, which should exclude the possibility of illegal crossing of the State border by persons, vehicles, cargo and goods. The control of the regime at the checkpoint is entrusted to the Border Service of the National Security Committee of the Republic of Kazakhstan and consists in carrying out verification and other measures to comply with the procedure for entry, stay, movement, departure of persons and vehicles; import, location, movement, export of goods and goods at the checkpoint.

Sentencing On charges of drug smuggling

 In accordance with paragraph 14 of Article 66 of the Law, the subject of border control at checkpoints across the State Border of the Republic of Kazakhstan is the implementation of actions to detect and detain violators of the rules for crossing the State border, including on the facts of drug smuggling. These verification actions are carried out in the security lane up to the passport control line and the perpetrators in these cases, according to article 33 of the Law, are responsible in accordance with the laws of the Republic of Kazakhstan. Thus, K. was reasonably convicted of illegal possession of narcotic drugs without the purpose of sale, committed in the security zone of the State Border, under part 3 of Article 296 of the Criminal Code, since he, along with attempted smuggling, also committed another criminal offense. Thus, the composition of part 3 of Article 296 of the Criminal Code does not provide for the movement of narcotic drugs across the State Border as a sign of the objective side, and the composition of Article 286 of the Criminal Code does not require the subjective side of the crime to have or lack a marketing purpose in relation to the narcotic drugs being transported. In addition, the smuggling of narcotic drugs does not involve the mandatory storage of narcotic drugs and can be carried out in any way that does not require the storage of narcotic drugs, in particular, by mail. Therefore, the protest's claims that the smuggling of narcotic drugs cannot be carried out without its storage are not based on the law. Moreover, as follows from the explanations of paragraph 16 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 11 "On the qualification of repeated and cumulative criminal offenses", the conjugation of one criminal offense with another means the mutual connection of criminal offenses, the accompaniment of one criminal offense by the commission of another criminal offense.

In such cases, the perpetrators commit actions (with or without a time gap) aimed at fulfilling each of the criminal offenses. The combination of criminal offenses in their real totality (that is, when they are committed by several acts of the perpetrator), as well as in their ideal totality (when one act or omission contains signs of criminal offenses provided for in two or more articles of the Criminal Code), in accordance with Article 13 of the Criminal Code, entails the qualification of each criminal offense separately under the corresponding article of the Criminal Code.. In such circumstances, the protest arguments for the termination of proceedings under part 3 of Article 296 of the Criminal Code and the exclusion of the application of part 3 of Article 58 of the Criminal Code cannot be satisfied. When imposing punishment in connection with a change in the qualification of K.'s actions to part 3 of Article 24, paragraph 5 of part 2 of Article 286 of the Criminal Code, the rules of part 3 of Article 56 of the Criminal Code should be applied, according to which for an attempted crime the amount of punishment may not exceed three quarters of the maximum term or the amount of the most severe type of punishment provided for in the relevant article of the Special Part of the Code for the completed crime. The sanction of part 2 of Article 286 of the Criminal Code provides for a maximum term of imprisonment of 12 years, therefore, three quarters of this period is 9 years. In addition, the pre-trial proceedings were conducted in the form of an expedited pre-trial investigation. In cases of accelerated pre-trial investigation, according to part 3 of Article 55 of the Criminal Code, the term or amount of the main type of punishment for a committed criminal offense may not exceed half of the maximum term or amount provided for in the relevant article of the Special Part of the Criminal Code. As follows from the clarifications of paragraph 7 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of criminal punishment", when imposing punishment for an unfinished crime, if there are grounds provided for in parts two and three of Article 55 of the Criminal Code, the multiplicity of the term should be calculated based on the limits established by Article 56 of the Criminal Code.

Thus, K.'s punishment under part 3 of Article 24, paragraph 5 of part 2 of Article 286 of the Criminal Code, taking into account the requirements of part 3 of Article 56, part 3 of Article 55 of the Criminal Code, may not exceed 4 years and 6 months of imprisonment. In addition, in connection with the Law of the Republic of Kazakhstan dated July 12, 2018 No. 180-VI "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on improving criminal, criminal procedure legislation and the activities of law enforcement and special state bodies", the term of public works was changed to the sanction of part 3 of Article 296 of the Criminal Code. Article 55 of the Criminal Code also provides for the calculation of sentences from the maximum term of any type of basic punishment, and not only from the term of imprisonment. Therefore, given that the pre-trial proceedings were conducted in an expedited manner, the imposition of punishment under part 3 of Article 296 of the Criminal Code is also subject to the requirements of part 3 of Article 55 of the Criminal Code and may not exceed 100 hours of community service. In such circumstances, the judicial board concluded that the court of first instance, taking into account the nature and degree of public danger committed by K. of criminal offenses, his sincere repentance, positive characteristics, bringing to criminal responsibility for the first time, having a dependent minor child and a non-working spouse, of a young age, correctly sentenced K. to imprisonment with the application of Article 63 of the Criminal Code conditionally, with the establishment of probation control and the assignment of appropriate duties to him.

Based on the above, the judicial Board for Criminal Cases of the Supreme Court changed the verdict of the court of first instance: - K.'s actions were reclassified from paragraph 5) of part 2 of Article 286 of the Criminal Code to part 3 of Article 24, paragraph 5 of part 2 of Article 286 of the Criminal Code, with the application of part 3 of Article 56, part 3 of Article 55 of the Criminal Code assigned 4 years and 6 months - according to part 3 of Article 296 of the Criminal Code, with the application of part 3 of Article 55 of the Criminal Code, the punishment in the form of community service was reduced to 100 hours.; - based on part 3 of Article 58 of the Criminal Code, 4 years and 6 months of imprisonment were imposed for a set of criminal offenses by absorbing a less severe punishment with a more severe one.

On the basis of article 63 of the Criminal Code, the imposed punishment was decided to be considered conditional, with the establishment of probation control for the entire term of imprisonment with the assignment of duties specified in the court verdict. The rest of the verdict was left unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan was partially satisfied.

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