Since the criminal acts are recognized as having no indication of the repeated sale of narcotic substances, the actions of the defendant are subject to re-qualification.
By the verdict of the Specialized Interdistrict court for criminal cases of Atyrau region dated June 20, 2011 with the participation of a jury: B., not previously convicted, sentenced to 10 years of imprisonment with confiscation of property under Paragraph "B" of Part 3 of Article 259 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), serving a sentence in a correctional colony of strict regime. In accordance with paragraph "g" of Article 88 of the Criminal Code, a measure of compulsory drug treatment was applied at the place of serving a sentence. The term of serving the sentence is calculated from March 25, 2011. By the verdict of the court B. he was repeatedly found guilty of illegal possession, storage and illegal sale of narcotic substances in large quantities. By the decision of the Judicial Board of Cassation of Atyrau Regional Court dated July 25, 2011, the verdict was left unchanged. Convicted B. in his petition stated that he did not agree with the court's decisions, did not sell drugs, did not write a statement against G., asked for a review of the criminal case and a mitigation of the sentence.
The supervisory judicial board considers that the criminal actions of the prosecutor in relation to B. should be differentiated by part 2-1 of Article 259 of the criminal code, reduce the sentence to 6 years, transfer the colony order to a general regime, study the case documents and the arguments presented in the application, and consider that judicial acts are subject to change on the following grounds. The guilt of the convicted B. was investigated in the judicial investigation and found a complete proof with a set of evidence objectively assessed by the court of First Instance.In particular, the convicted B. On February 05, 2011, at 15.55 am, Atyrau, near G. Slanov Street, house No. 44, the conclusions of the court of First Instance on the illegal sale of a narcotic substance-heroin with a total weight of 0.09 grams, wrapped in one piece of paper, for 5,000 tenge G. were summarized during the preliminary investigation, the proceedings with the participation of the parties in the judicial investigation were fully clarified and approved with a set of studied and other evidence. However, the conclusion of the court of first instance that convicted B. illegally possessed, stored and illegally sold narcotic substances several times, that is, on February 09, 2011 at about 15.10 hours in Atyrau, G. Slanov Street, near house No. 44, several times wrapped in two pieces of paper with a total weight of 0.13 grams of heroin for 10,000 tenge and on March 04, 2011 at 16.30 hours in Atyrau, G. Slanov Street, near house No. 44 the conclusion that the packaged drug with a total weight of 0.81 grams-heroin - was illegally sold for 5,000 tenge. At the same time, the conviction against convicted B. did not take into account the validity and conditions of control procurement operations, and did not verify the implementation of the requirements of the law of the Republic of Kazakhstan dated September 15, 1994 "on operational search activities". According to the documents of the criminal case, on February 05, 2011, with the first operational procurement measures, it was recorded that B. 0.09 grams of the narcotic substance "heroin" was sold. However, despite the requirements of the law on the termination of operational-search measures and the need to cut off the ways in which B. committed the next crime, police officers repeatedly conducted control operations with only one person. According to the case documents, the activities carried out on February 09, 2011 and March 04, 2011 were not aimed at identifying persons engaged in the circulation of illegal narcotic substances, only the fact of the sale of narcotic substances by B. was re-registered. According to paragraph 23 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated August 15, 2002 No. 19" on the court verdict", episodes of illegal trafficking of narcotic substances" heroin " from February 09, 2011 and March 04, 2011 are subject to reduction. However, it is fully proven that B. illegally sold "heroin", a narcotic substance with a total weight of 0.09 grams, wrapped in a piece of paper dated February 05, 2011, for 5,000 tenge. According to the requirements of Article 117 of the code of criminal procedure, the event and the signs of the corpus delicti provided for by the criminal law in the criminal case (time, place, method and other circumstances of the commission of the crime) are subject to mandatory proof. Articles 278 and 379 of this code indicate that the indictment and the descriptive-reasoned parts of the indictment must contain a description of the criminal act. Due to non-compliance with the requirements of this law, it is necessary to exclude from the judicial acts issued against B. The part of the accusation of his illegal possession of narcotic substances. On the basis of the foregoing, the criminal acts of B. were again differentiated from Paragraph "B" of Part 3 of Article 259 of the Criminal Code by part 2-1 of Article 259 of the criminal code. The term of the sentence assigned to him is reduced and is subject to serving his sentence in a correctional colony of the general regime.
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