The court's conclusions based on evidence obtained in violation of the norms of criminal procedure legislation and the Law "On Operational Investigative Activities" were found to be unfounded.
By the verdict of the specialized interdistrict criminal court of the Karaganda region dated February 16, 2011, S. was sentenced under paragraph "b" of Part 3 of Article 259 of the Criminal Code to 11 years in prison with confiscation of property, while serving his sentence in a high-security penal colony. The term of serving the sentence has been calculated since June 12, 2010. By the decision of the Appellate Judicial Board for Criminal Cases of the Karaganda Regional Court of April 26, 2011, the verdict was upheld, S.'s appeal was dismissed. At the same time, the words "on a large scale" were excluded from the introductory part of the verdict for all episodes of the sale of narcotic drugs, as well as from the reasoning part of the verdict. The court found S. guilty of illegal acquisition and storage for the purpose of sale and distribution of narcotic drugs in a small amount, committed repeatedly. By the decision of the Cassation judicial Board of the Karaganda Regional Court dated April 23, 2013, the judicial acts were left unchanged. The prosecutor's protest raises the issue of changing judicial acts in relation to S. due to the improper application of the law, which led to the conviction of an innocent person: termination of proceedings in the case under paragraph "b" of Part 3 of Article 259 of the Criminal Code for episodes of drug trafficking on May 12, 20, 27 and June 12, 2010 due to violations of the Laws "On operational investigative activities", "On narcotic drugs, psychotropic substances, precursors and measures to counteract their illicit trafficking and abuse", and the conviction of S. guilty of committing a crime under Part 2 of art. 259 of the Criminal Code, which imposed a sentence of 6 years in prison with confiscation of property, while serving his sentence in a general regime penal colony.
The Supervisory Judicial Board of the Supreme Court, having considered the case at the prosecutor's protest, concluded that the court's judicial acts against S. were unlawful and unfounded. The court charged S. with having used, on May 12, 20, 27, and June 12, 2010, small amounts of marijuana purchased under unknown circumstances (weighing 11.35 grams, respectively., 7.5 gr., 8.34 gr., 8.26 gr., 14.78 gr.) sold "And" each time for 4 thousand tenge and illegally stored for sale on June 12, 2010 marijuana weighing 6.89 gr., related to a small size, but mistakenly attributed to a large size by the court. Moreover, the cassation instance, despite the fact that the appellate instance excluded the words "on a large scale" from the verdict, repeats the mistake made by the court of first instance, pointing to the large size of all the facts of the alleged sale and the purpose of the sale of marijuana. At the same time, the court of first and cassation instances ignore that, in accordance with the Summary Table "On the classification of narcotic drugs, psychotropic substances and precursors to small, large and especially large sizes found in illicit trafficking," dried marijuana weighing from 50.0 to 1000 grams belongs to large size. The Court, recognizing S. those guilty of the illegal acquisition and possession of marijuana in a small amount for the purpose of sale and sale, committed repeatedly, did not take into account the provisions of the criminal procedure law regulating the obligation to substantiate the verdict with reliable and admissible evidence, which affected the correctness of the decision.
The court's conclusions based on evidence obtained in violation of the norms of criminal procedure legislation and the Law "On Operational Investigative Activities" were found to be unfounded.
According to paragraph 8 of the regulatory decree of May 14, 1998, as subsequently amended, "On the application of legislation in cases related to illicit trafficking in narcotic drugs, psychotropic and poisonous substances", the sale of narcotic drugs, psychotropic substances by one person to several buyers, or two or more times to the same buyer, including through a short period of time may qualify as repeated sale of narcotic drugs or psychotropic substances, if it is established, that each fact of sale was carried out by the perpetrator in accordance with the independent intent to commit each fact of sale. In accordance with the requirements of Article 117 of the CPC, the circumstances of the commission of a crime are subject to proof, and in relation to this case, the circumstances of each fact of sale with independent intent to commit each fact of sale are subject to proof. 128 of the CPC, is subject to assessment in terms of relevance, admissibility, reliability, and evidence is recognized as admissible if it is obtained in accordance with the procedure established by this Code. Despite the fact that the court referred to the assessment of evidence in accordance with the provisions of Articles 127-128 of the CPC, however, it did not conduct a proper study of evidence confirming the facts of sale with the independent intent to commit each fact of sale, in accordance with the requirements of the law in this case.
When passing a guilty verdict against S. The court did not take into account the validity and conditions of control purchases, and did not verify compliance with the requirements of the law on operational search measures In accordance with Article 130 of the CPC. The results of operational search activities obtained in compliance with the requirements of the law may be used in proving criminal cases in accordance with the provisions of this Code governing the collection, investigation and evaluation of evidence with compliance with the requirements provided for in Article 53 and Chapter 21 of this Code, as well as the Laws "On State Protection of Persons, participating in criminal proceedings", "On operational search activities". In paragraphs 9-4 of the above-mentioned regulatory resolution, it is emphasized that, in accordance with the provisions of the Law "On Operational Search Activities", operational procurement of narcotic drugs or psychotropic substances and other operational search activities are carried out only if there are grounds provided by law for their conduct., with the knowledge and under the control of the body carrying out operational investigative activities in accordance with the tasks assigned to it and within its competence. When carrying out operational search activities, it is prohibited to incite and provoke citizens to commit offenses. The Law "On Operational Investigative Activities" (hereinafter referred to as the Law) also contains a reference to the prohibition to incite and provoke citizens to commit crimes.
According to the Law, the tasks of operational investigative activities are the detection, prevention, suppression and disclosure of crimes. The listed requirements of the law in relation to S. were not fulfilled and, contrary to constitutional norms, the verdict was based on evidence obtained by illegal means. According to the case file, 5 criminal cases have been initiated against S., combined into one proceeding. The reason and basis for the initiation of these combined 5 criminal cases were 5 reports of the same type of the same art.the operative of the Department of Internal Affairs of the citySarani A. that during the OPM, the letter "R" illegally sold marijuana to "I". The operational measures were carried out at the request of the same applicant under the pseudonym "And" with the expressed same request to take action against S., who illegally sells narcotic drugs, and after the first statement "And" on taking action against the identified person – S. during the month, virtually the same operational measures were carried out repeatedly: after each statement, "And" in the presence of witnesses, he was given money in the amount of 4 thousand tenge, product "K", and each time "And" called S., invited him to his home, after which he returned and voluntarily handed over the purchased substance recognized as marijuana.
Thus, a similar scenario was repeated every 7-10 days, with repeated statements by "And", followed by the issuance of money to him and the subsequent voluntary donation of marijuana.At the same time, for what purpose repeated operational measures were carried out on May 12, 20, 27, June 12, 2010, duplicating each other on the basis of similar statements and reports, the case remains unknown and, as can be seen from the case materials, they were not conditioned by investigative necessity. In the case of S. During repeated events, no measures were taken to identify other persons involved in drug trafficking, and no measures were taken to identify the persons from whom S. had purchased marijuana, the sources of purchase, channels of receipt, places of storage, and the establishment of his connections, except for "And", with whom they had been familiar for a long time. As can be seen from the case file, repeated, repetitive measures have not yielded any results, except that "I" purchases small amounts of marijuana from the convict. As established in the case, all meetings between S. and "And" took place in the apartment of "And", at meetings with. he came after the call, "And", where he came from, where he left the apartment, "And", from whom he purchased marijuana, where he stored it, it was not clarified, no search was carried out at the convict's place of residence, the marked money was not seized from S. and was not found during the arrest on June 12, 2010 after leaving the apartment. "And". Moreover, in violation of Articles 53, 100, 101, 130 of the CPC, the case file contains an improperly drawn-up resolution refusing to institute criminal proceedings against P. and A., from which it follows verbatim, "that on 12.06.2010, P. was visited by his friend S., whom they have known since childhood.
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