The legality and validity of the search and significant violations of the criminal procedure law entail the recognition of the results of the procedural action as inadmissible evidence.
By the verdict of the specialized interdistrict Criminal Court of the North Kazakhstan region dated March 13, 2020: D. was convicted under paragraph 3) of part 3 of Article 297 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 11 years in prison and served his sentence in an institution of the maximum security penal system. The term of punishment is calculated from October 14, 2019. On the basis of paragraph 4) of part 1 of Article 91, part 2 of Article 98 of the Criminal Code, compulsory treatment for drug addiction was prescribed. With D. Procedural costs in the amount of 329,499 tenge 54 tiyn were collected to the state revenue, and a compulsory payment in the amount of 75,750 tenge was made to the Victims Compensation Fund. By a court verdict, D. was found guilty of illegal possession of a spice smoking mixture containing a synthetic cannabinoid analog of the psychotropic substance, with a total weight of 241.05 grams, which, for convenience of further sale, he packaged in paper clippings (receipts) prepared by him in advance. The convicted D. also illegally stored a synthetic cannabinoid concentrate with a total weight of 19.45 grams in his home for further sale. By the resolution of the Judicial Board for Criminal Cases of the North Kazakhstan Regional Court dated June 1, 2020, the verdict of the court remained unchanged. In the petition, L.'s lawyer asks that the actions of convicted D. be reclassified to part 3 of Article 296 of the Criminal Code with the imposition of appropriate punishment, and acquitted under part 2 of Article 297 of the Criminal Code due to the absence of corpus delicti. Indicates that D. admitted the fact of using a psychotropic substance in connection with existing diseases, but does not recognize the ownership of the seized 19.45 grams of the substance. There were procedural violations during the search, and the video does not cover all the actions of the police officers. When qualifying D.'s actions, the court mistakenly took into account the entire weight of the seized substance, rather than the "pure" weight of the psychotropic substance determined by experts. D. did not admit guilt over the sale of the substance. The funds handed over for the control purchase have not been withdrawn. Comparative examination did not yield any results. Based on the results of studying the case materials and the arguments of the petition, the judicial board came to the following conclusions. The fact of illegal sale of D. synthetic cannabinoid as an analog of a psychotropic substance, proved by the evidence collected in the case. Thus, a witness under the pseudonym A. testified that on September 30, 2019, during a control purchase, D. sold him 5 bundles of the spice substance for 150,000 tenge. These statements are stable both during the pre-trial investigation and the trial.
The legality and validity of the search and significant violations of the criminal procedure law entail the recognition of the results of the procedural action as inadmissible evidence.
The reliability of the testimony is confirmed by the protocols of handing over funds, issuing parcels with the substance, and a video recording of the control purchase. The conclusion of the forensic chemical examination No. 5045 established that the packages issued by A. contain a plant substance in the form of crushed fragments of leaves and stems, on the surface of which there are layers containing synthetic cannabinoid. The funds received by D. were not found as a result of the fact that the arrest and search of the suspect were carried out 14 days later. The totality of the evidence listed above is sufficient to conclude that D. is guilty. At the same time, it should be clarified that D. illegally stored and sold a synthetic cannabinoid weighing 0.25 grams, since this is the exact weight of the psychotropic substance analogue established by the expert's conclusion. According to the note to the Summary Table on the Classification of Narcotic Drugs, Psychotropic Substances, their Analogues and Precursors found in Illicit Trafficking into small, large and Especially large sizes, approved by Government Decree No. 470 of July 3, 2019, when determining the size of narcotic drugs, psychotropic substances, their analogues and precursors in illicit circulation. in the form of solutions, extracts, as well as tampons, gauze, bandages, plant particles, paper, and others soaked in these products., It is necessary to extract this type of specific product or substance, followed by recalculation of the dry residue to match the size of the substance or product shown in the Summary Table. Thus, when plant particles are impregnated with an analog of a psychotropic substance, it is necessary to separate these particles by extraction, isolating the dry residue of the analog of the psychotropic substance. And only then determine its size from the Summary Table. Thus, D. illegally stored and sold an analog of a psychotropic substance on a large scale for the purpose of sale. Analyzing the evidence of D.'s guilt The judicial board comes to the following conclusions regarding the illegal possession of synthetic cannabinoid for sale on an especially large scale, weighing 227.47grams. In accordance with paragraphs 1, 3 of Article 254 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), a search order must be authorized by an investigating judge. In exceptional cases, when there is a real fear that the object being sought and/or seized may be lost, damaged or used for criminal purposes due to a delay in its discovery, or the wanted person may abscond, a search may be carried out without the authorization of an investigating judge in accordance with the procedure provided for in part 14 of Article 220 of the CPC. It follows from these provisions of the law that a search, as a procedural action affecting the constitutional rights of a citizen to the inviolability of his home and private property, should, of course, be carried out only with the approval of a judge.
The cases when this procedure may not be followed are strictly limited and listed in the law. Only the absence of a temporary opportunity to obtain a permit, the need for an immediate search can be recognized as exceptional circumstances. As follows from the case file, the control purchase of an analog of a psychotropic substance was carried out on September 30, 2019, and the search in D.'s house was carried out on October 14, 2019, 14 days later. That is, after the fact of criminal activity in the form of illegal sale of a prohibited substance was recorded, the criminal prosecution body had grounds and sufficient time to apply to the investigating judge with a petition to obtain a sanction. However, in violation of the requirements of the law, the search was carried out without the approval of a judge. In addition, the following has been established. A search of D.'s house was conducted on October 14, 2019, according to the decision of the judge of the specialized investigative court of Petropavlovsk dated October 15, 2019, the search carried out on October 13 was recognized as lawful. Thus, the search was not recognized as lawful in accordance with the established procedure. These violations of the Criminal procedure Law are significant and entail the recognition of the results of the procedural action as inadmissible as evidence in accordance with article 112 of the CPC. In such circumstances, the judicial board considers that the charge of illegal possession for the purpose of selling synthetic cannabinoid weighing 227.47grams is unproven. 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 D. D.'s actions from paragraph 3) of part 3 of Article 297 of the Criminal Code were reclassified to part 2 of Article 297 of the Criminal Code, which imposed 7 years of imprisonment to be served in an institution of the medium-security penal system. The time of D.'s detention from October 14, 2019 to June 1, 2020 was counted towards the term of punishment at the rate of one day of detention per one and a half days of imprisonment. The amount of the compulsory payment collected from D. to the Victims Compensation Fund has been reduced to 50,500 tenge. The amount of procedural costs collected from D. to the state revenue has been reduced to 106,039 tenge. It was decided to accept the procedural costs in the amount of 223,461 tenge at the expense of the state. The rest of the judicial acts remained unchanged. The petition of the defender-lawyer L. in the interests of the convicted D. partially satisfied.
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