Violation of the law during operational search activities

By the verdict of the specialized interdistrict criminal Court of the Karaganda region dated March 19, 2012: L., previously convicted on January 24, 2008, under part 2 of Article 259 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 4 years in prison, was released from punishment on July 5, 2010 on the basis of Article 70 of the Criminal Code for an unserved term of 1 year 4 months, - He was sentenced under Article 259, part 3, paragraphs "b, c" of the Criminal Code (as amended in 1997) to 13 years in prison with confiscation of property, on the basis of Article 60, parts 1, 4 of the Criminal Code by partially attaching the unserved sentence of January 24, 2008 in the form of 1 year in prison, finally to 14 years in prison. freedom with confiscation of property and serving a sentence in a special-regime penal colony. On the basis of paragraph "b" of part 3 of Article 13 of the Criminal Code, a particularly dangerous recidivism of crimes was recognized in the actions of the convicted person. In accordance with paragraph "d" of part 1 of Article 88, part 2 of Article 90 of the Criminal Code. Compulsory treatment for opium addiction has been prescribed at the place of serving his sentence. The costs of carrying out literary events in the amount of 52,000 tenge, as well as procedural costs for the conducted expert examinations in the amount of 128,687 tenge, were collected from L. to the state income. By the verdict of the court, L. was found guilty of repeated illegal acquisition, storage for the purpose of sale and sale of narcotic drugs on an especially large scale. By a decision of the judicial board for Criminal Cases of the Karaganda Regional Court dated April 27, 2012, the verdict against L. was upheld. By the decision of the Cassation judicial board of the Karaganda Regional Court dated August 19, 2014, the judicial acts against L. were left unchanged.

Violation of the law during operational search activities

In his submission, the Chairman of the Supreme Court, disagreeing with the judicial acts, points out that after the fact that L. sold a narcotic drug, heroin, to a person under the pseudonym "S.", which took place on May 22, 2011, the tasks of operational search measures were completed and subsequent operational purchases of narcotic drugs had to be stopped. Failure to comply with the requirements of the law on the procedure for conducting operational investigative measures leads to the invalidity of evidence regarding the repeated sale of narcotic drugs. In connection with the above, it considers that there are grounds for a cassation review of judicial acts that have entered into force. Having heard the judge's report on the circumstances and grounds of the submission made by the Chairman of the Supreme Court, the statement of Prosecutor A., who believed that the judicial acts should be changed, having studied the materials of the criminal case and discussed the arguments of the submission, the judicial board concludes that the submission should be satisfied on the following grounds. As established by the materials of the criminal case, on May 22, 2011, at about 2 p.m., L. was in the entrance of the house number 23 on the street.Ryskulova, Karaganda, sold to a person under the pseudonym "C" two polymer bundles for 4,000 tenge with a narcotic drug – heroin, weighing 0.5743 grams, on a large scale. The person under the pseudonym "S." voluntarily handed over this narcotic drug to the police on the same day. Under similar circumstances, L. He sold a narcotic drug, heroin, to a person under the pseudonym "S.", on May 23, 2011, weighing 2.1764 grams, on May 26, 2011, weighing 0.9686 grams, and on May 31, 2011– weighing 2.58 grams. In addition, on July 26, 2011, during a search at the place of residence of convict L. at the address: Karaganda, Gapeev str., 1, 435 block, a matchbox with a narcotic drug weighing 1.60 grams was found and seized on a hanging cabinet of the kitchen room.

The guilt of the convicted L. illegal acquisition, storage for the purpose of sale and distribution of narcotic drugs – heroin weighing 0.5743 grams, on a large scale, which took place on May 22, 2011, as well as illegal possession for the purpose of selling heroin weighing 1.60 grams, on an especially large scale, discovered during a search of the apartment at his place of residence, is fully proven by the totality of evidence examined at the court session: the results of operational search measures involving the use of technical means to conduct an operational purchase with the participation of a person under the pseudonym "C", inspection protocols, money delivery and a recording device dated May 22, 2011, the protocol of the voluntary release of narcotic drugs, the protocol of the search at the place of residence of the convicted person dated July 26, 2011, the testimony of witnesses-witnesses A., M., N., O., the testimony of witnesses-police officers S., K., expert reports, as well as other case materials. At the same time, as can be seen from the materials of the criminal case, on May 22, 2011, the pre-trial body reliably established that the substance that L. was selling was indeed a narcotic drug – heroin. According to the explanations given in paragraph 9-4 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated May 14, 1998 No. 3 "On the application of legislation in cases related to illicit trafficking in narcotic drugs, psychotropic substances, their analogues and precursors", courts should keep in mind that in accordance with the provisions of the Law of the Republic of Kazakhstan dated September 15 1994 No. 154-XIII "On operational investigative activities" operational purchase of narcotic drugs or psychotropic substances, their analogues and other operational search activities are carried out only if there are grounds provided for by law for their conduct, with the knowledge and under the supervision of the body carrying out operational search activities, in accordance with the tasks assigned to it and within its competence.

Violation of the law during operational search activities

When carrying out operational search activities, it is prohibited to incite and provoke citizens to commit offenses. In accordance with the requirements of the above-mentioned Law, the basis for the termination of operational search activities is the fulfillment of tasks for which the conduct of an operational search event was provided. Thus, the objectives of these measures were fulfilled, the fact of the existence of a criminal offense was established, which was the basis for the termination of operational search activities aimed at re-purchasing narcotic drugs. It follows from the case file that on May 23, 26 and 31, 2011, repeated operational purchases of narcotic drugs from L. on a large and especially large scale were not caused by the operational need to obtain additional information about L.'s criminal activities. In these circumstances, since repeated operational purchases were carried out in obvious violation of the law, the results obtained in accordance with the requirements of Article 77 of the Constitution of the Republic of Kazakhstan and Article 112 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC) have no legal force of evidence. In connection with the above, the episodes of the sale of heroin on May 23, 26 and 31, 2011, on a large and especially large scale, are subject to exclusion from the charges against L., and the proceedings on them are terminated. The qualifying sign of repetition provided for in paragraph "b" of part 3 of Article 259 of the Criminal Code is also subject to exclusion from the charge. L.'s actions, which resulted in the illegal possession of a narcotic drug, heroin, for sale on July 26, 2011, weighing 1.60 grams, on an especially large scale, and its sale on May 22, 2011, weighing 0.5743 grams, on a large scale, are subject to qualification under paragraph "b" of part 3 of Article 259 of the Criminal Code. Taking into account the fact of the sale of L. Based on the episode of May 22, 2011, and a narcotic drug of the same type found at his home during a search of his apartment on July 26, 2011, the board concludes that the purpose of selling narcotic drugs in the actions of the convicted person is correctly established. In addition, as follows from the court verdict, a particularly dangerous recidivism of crimes was recognized in the actions of the convicted person in accordance with paragraph "b" of part 3 of Article 13 of the Criminal Code dated July 16, 1997. The court recognized the recurrence of crimes as an aggravating circumstance for criminal liability and punishment of the convicted person.

Whereas, according to the indictment, a particularly dangerous recidivism of crimes was not indicated as an aggravating circumstance and responsibility of the convicted person. Therefore, based on the requirements of Article 340 of the CPC, the recognition of recidivism as an aggravating circumstance is subject to exclusion from the charge, and the type of recidivism is subject to change from particularly dangerous to dangerous, in accordance with the requirements of paragraph 2) of part 2 of Article 14 of the Criminal Code (as amended in 2014). Taking into account the termination of the episodes of the sale charge and the change in the qualification of the convicted person's actions with the exception of the qualifying sign of repetition, entailing a reduction in the scope of the charge, the board considers it necessary to change the sentence imposed by the court in the form of imprisonment in accordance with the rules of paragraph 3) of part 2 of Article 55 of the Criminal Code. In addition, the judicial board considers that additional punishment in the form of confiscation of property should not be imposed. It can be seen from the materials of the criminal case that the pre-trial investigation body has not identified the property owned by L., obtained by criminal means or acquired with funds obtained by criminal means, as well as the property that is an instrument or means of committing a crime. The Judicial Board also considered it necessary to reduce the amount of procedural costs collected from the convicted person to the state income from 128 687 tenge to 77 887 tenge. The procedural costs in the amount of 50,800 tenge spent on carrying out examinations on episodes of heroin sales dated May 23, 26 and 31, 2011 and expenses spent on salaries of experts of forensic examination bodies and staff, social tax, social contributions, overhead costs in accordance with the requirements of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated On June 29, 2018, No. 10 "On recovery of procedural costs in criminal cases".

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 L. and excluded from the charges the episodes of heroin sale on May 23, 2011 weighing 2.1764 grams, on May 26, 2011 weighing 0.9686 grams, on May 31, 2011 weighing 2.58 grams, the case in this part was discontinued.. In addition, the qualifying sign of repetition provided for in paragraph "b" of part 3 of Article 259 of the Criminal Code, as well as the recognition of recidivism as an aggravating criminal liability and punishment circumstance, were excluded from the charges against L.. On the basis of paragraph 2) of part 2 of Article 14 of the Criminal Code, a dangerous recidivism of crimes was recognized in L.'s actions. L.'s actions are qualified under paragraph "b" of part 3 of Article 259 of the Criminal Code, according to which, with the application of the rules of paragraph 3) of part 2 of Article 55 of the Criminal Code, a sentence of 11 years and 3 months of imprisonment was imposed. On the basis of parts 1, 4 of Article 60 of the Criminal Code, by partially attaching the unserved sentence of January 24, 2008 in the form of 1 year of imprisonment, L. was finally sentenced to 12 years and 3 months of imprisonment with serving the sentence in an institution of the penitentiary system of emergency security. The amount of procedural costs collected from L. to the state revenue has been reduced to 77,887 tenge. The rest of the judicial acts remained unchanged. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied. 

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