The circumstances to be proved in a criminal case, the court has no right to convict unless all the arguments in defense of the defendant are checked and evaluated, and all doubts about his guilt are eliminated.
By the verdict of the Kostanay District Court of Kostanay region dated October 6, 2016, Kh., who had no previous criminal record, was sentenced under part 1 of Article 297 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 5 years in prison with confiscation of property; under part 2 of Article 296 of the Criminal Code to a fine of 50 MCI - 106,050 tenge in state revenue. Based on part 3 of Article 58 of the Criminal Code, 5 years of imprisonment with confiscation of property was imposed by absorbing a less severe punishment. In accordance with paragraph 2 of part 5 of Article 46 of the Criminal Code, serving the sentence is assigned to a correctional colony of the general regime. Collected from x. The state receives procedural costs in the amount of 67,423 tenge. By the verdict of the Court of X. He was found guilty of illegal possession for the purpose of marketing and marketing of a narcotic drug, dried marijuana, weighing 4.21 grams, as well as illegal possession of a narcotic drug, dried marijuana, weighing 36.58 grams, without the purpose of sale. The verdict was upheld by the decision of the Judicial Board for Criminal Cases of the Kostanay Regional Court dated November 22, 2016. In the protest, the Prosecutor General of the Republic of Kazakhstan, without disputing the evidence of guilt and qualification of X's actions. of illegal possession of narcotic drugs without the purpose of sale, considers illegal judicial acts regarding his conviction of illegal possession for the purpose of sale and sale of narcotic drugs.
The circumstances to be proved in a criminal case, the court has no right to convict unless all the arguments in defense of the defendant are checked and evaluated, and all doubts about his guilt are eliminated.
Thus, the protest states that the court's conclusion on the guilt of X. The charge of illegal possession for the purpose of sale and distribution of narcotic drugs is based only on the testimony of witness B. and is not supported by other objective evidence. The conclusion of the comparative examination also does not confirm that the seized The marijuana was in the same mixture with the marijuana sold during the control purchase. The prosecutor notes that the pre-trial investigation body, having every reason to carry out operational search measures against H., did not conduct an operational purchase, the investigation was conducted only on the testimony of B. In addition, when reviewing the verdict on appeal, the sign of "illegal acquisition" of drugs was excluded from B.'s actions. Thus, the prosecutor is asking for judicial acts against X. to amend, according to part 1 of Article 297 of the Criminal Code, to terminate the proceedings for the absence of elements of a criminal offense in his actions, according to part 2 of Article 296 of the Criminal Code for the episode of illegal possession of narcotic drugs without the purpose of sale, to release him from punishment in the form of a fine on the basis of paragraph 1 of Article 2 of the Law of December 13, 2014 "On Amnesty in connection with twenty–fifth anniversary of Independence of the Republic of Kazakhstan" (hereinafter - the Law on Amnesty). It can be seen from the case file that it was on the basis of the testimony of B., who sold the witness to K. during the control purchase. the narcotic drug is "dried marijuana", weighing 4.21 grams. x. was charged with selling the specified narcotic drug B. With evidence of X's guilt. The court recognized B. Kh.'s identification, the protocol of checking and clarifying B.'s testimony on the spot, which are also based on B.'s testimony, as evidence of H.'s guilt. in the sale of the narcotic drug B., the court's verdict indicated the conclusion of a comparative expert study No. 585 dated March 18, 2016. However, according to this conclusion, the dried marijuana seized from B. and the dried marijuana seized from H. differ in the presence of impurities (parts of non-narcotic parts), which does not indicate that the narcotic drugs seized from B. and H. were previously in the same mixture. The Court, recognizing H. He was guilty of illegal possession for the purpose of selling and marketing narcotic drugs, did not take into account the provisions of the criminal procedure law regulating the obligation to substantiate the verdict with a sufficient set of reliable and admissible evidence, which affected the correctness of the decision taken in the case. In accordance with the requirements of Article 117 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the circumstances of the commission of a crime are subject to proof and, in relation to this case, the circumstances of the sale are subject to proof. In violation of the specified requirements of the law, the court concluded that X was guilty. of illegal possession of a narcotic drug for the purpose of sale and its sale without sufficient evidence. The fact of H. selling narcotic drugs to B. has not been recorded.
The testimony of witnesses I., T., and S. about their earlier purchase of narcotic drugs from H. also does not confirm the sale of 4.21 grams of marijuana dried by H. on January 29, 2016. In accordance with part 3 of Article 393 of the CPC, the court does not have the right to convict unless all the arguments in defense of the defendant are checked and evaluated, and all doubts about his guilt are eliminated. An analysis of the evidence available in the criminal case and its comparison with other factual circumstances indicates the presence of irremediable doubts about the guilt of convicted X .Whereas, if doubts cannot be eliminated by the measures taken, they are interpreted in favor of the defendant. The court did not refute the convict's arguments about his non-involvement in the sale of narcotic drugs to B. In this connection, the protest arguments about the absence of X's actions. the composition of the criminal offense provided for in part 1 of Article 297 of the Criminal Code and the need to terminate the proceedings in this part of the charges are justified. In such circumstances, by virtue of the provisions of Articles 37, 38 of the CPC, it is necessary to recognize X. the right to rehabilitation as a result of unjustified criminal prosecution under part 1 of Article 297 of the Criminal Code. As for the charge of illegal possession of X. of a narcotic drug - dried marijuana, with a total weight of 36.58 grams, without the purpose of sale, then his guilt is confirmed by the protocol of the search at the place of residence of the convicted person, authorized by the investigating judge, and the seizure of substances that are recognized by the expert's conclusion as narcotic, "dried marijuana", with a total weight of 36.58 grams, the testimony of witnesses K. and A., who participated in as witnesses. The court came to the correct conclusion about the proof of X's guilt. and the qualification of his actions in this episode under part 2 of Article 296 of the Criminal Code. Because perfect X. the criminal offense provided for in part 2 of Article 296UK, according to part 3 of Article 10 of the Criminal Code, refers to a misdemeanor, then in accordance with paragraph 1 of Article 2 of the Amnesty Law, X. is subject to release from punishment. The Board agrees with the arguments of the protest on the application of the amnesty act against the convicted person. Termination of proceedings on the charge episode under Part 1 of Article 297 of the Criminal Code entails a change in the amount of procedural costs to be recovered from X., with the exception of the amount of 47701 tenge spent on conducting a comparative examination related to the examination of material evidence on the episode of drug sales. 19,722 tenge is to be recovered from Kh. for the examinations conducted on the episode of the charge under part 2 of Article 296 of the Criminal Code. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in relation to H. and the condemnation of H. according to part 1 of Article 297 of the Criminal Code, she cancelled the proceedings in this part due to the lack of evidence of a criminal offense. Kh.: - released from punishment under part 2 of Article 296 of the Criminal Code with the application of paragraph 1 of Article 2 of the Amnesty Law; - the application of part 3 of Article 58 of the Criminal Code was excluded; - released immediately from custody; - the amount of procedural costs collected from H. was reduced to 19,722 tenge. The rest of the judicial acts remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied. Recognized as X. the right to compensation for damage caused by illegal actions of bodies conducting criminal proceedings.
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