Violation of the norms of the Criminal procedure law led to a change in judicial acts

By the verdict of the specialized interdistrict criminal court of the Pavlodar region on August 20, 2010: K., was sentenced under paragraph "b" of Part 3 of Article 259 of the Criminal Code to 11 years and 6 months in prison with confiscation of property, on the basis of Article 60 of the Criminal Code to 12 years in prison with confiscation of property and serving his sentence in a correctional colony of a special regime. In accordance with paragraph "b" of Part 3 of Article 13 of the Criminal Code, the presence of a particularly dangerous recidivism of crimes is recognized in the actions of the convicted person. The court's verdict was upheld by the appellate and cassation instances. By the Court of K. He was found guilty of illegal acquisition and possession of narcotic drugs for the purpose of sale and distribution, committed repeatedly. Having considered the case on the protest of the Prosecutor General, the supervisory judicial board of the Supreme Court concluded that the judicial acts were subject to change on the following grounds. In accordance with Part 1 of Article 117 of the CPC, an event and the elements of a crime provided for by criminal law (time, place, method and other circumstances of the commission of a crime) are subject to mandatory proof. In violation of the specified requirements of the Criminal procedure Law, the circumstances of K.'s purchase of narcotic drugs have not been established. At the same time, the court verdict recognized that K. had purchased narcotic drugs in an unidentified place from an unidentified person. In this regard, K.'s accusation of illegal acquisition of narcotic drugs is subject to exclusion from the sentence. The convict's guilt in illegal possession of narcotic drugs for the sale and distribution of 9.77 grams of marijuana on April 15, 2010 was proved by the case materials. At the same time, K.'s conviction on charges of selling on April 17, 2010 The amount of narcotic drugs is 12.84 grams. marijuana is not based on the law.

By paragraph 9-4 of the Normative Resolution of the Supreme Court No. 3 of May 14, 1998, as amended and supplemented by Resolutions of the Plenum of the Supreme Court No. 2 of April 30, 1998, No. 19 of December 22, 2000, and Normative Resolutions of the Supreme Court No. 7 of July 11, 2003 and No. 1 of April 21, 2011. "On the application of legislation in cases related to illicit trafficking in narcotic drugs, psychotropic and poisonous substances" it is established that the operational purchase 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 supervision of the body carrying out operational search activities in accordance with the tasks assigned to him and within his competence.  When carrying out operational search activities (hereinafter referred to as OPM), it is prohibited to incite and provoke citizens to commit offenses. In accordance with the clarifications contained in paragraph 18 of the Normative Resolution of the Supreme Court No. 3 dated December 6, 2013. "On the application in criminal proceedings of certain norms of legislation regulating the protection of state secrets", after conducting an operational purchase or other OPM (special or general) to document a crime that is not ongoing, but is carried out at a time, for example, the sale of narcotic drugs, repeated OPM against the same person to identify a similar crime It is allowed only by issuing an appropriate resolution indicating in it the grounds provided for by law for its implementation. The criminal prosecution authorities conducted a second operational search event – the prompt purchase of narcotic drugs from K. on April 17, 2010 with gross violations of the above-mentioned requirements of the law and regulatory decisions of the Supreme Court. On April 15, 2010, the criminal prosecution authorities carried out an operational purchase of narcotic drugs - 9.77 grams of marijuana from K. with the participation of Z., who was imitating criminal activity. As a result, the objectives of the operational search activity were fully achieved, evidence of K.'s crimes was collected and consolidated. crimes – sale of narcotic drugs. In accordance with the objectives of the criminal process, the criminal prosecution authorities had to stop K.'s criminal actions and bring him to criminal responsibility.

The continuation of additional operational search measures against K. could only have taken place in order to identify the sources of his purchase of narcotic drugs, an organized criminal group, or other purposes of the criminal process with the issuance of a reasoned decision. However, the criminal prosecution authorities, in violation of these requirements, without issuing appropriate reasoned decisions and in the absence of grounds for conducting a second OPM on April 17, 2010, again carried out similar operational purchases of narcotic drugs from K. with the involvement of Z. – the same person who imitates criminal activity. Since the repeated operational purchase was carried out in obvious violation of the law, its results, in accordance with the requirements of Article 77 of the Constitution and Article 116 of the CPC, have no legal force of proof. In such circumstances, the proceedings on the episode of K.'s accusation of selling narcotic drugs dated April 17, 2010 are subject to invalidation and termination.

In this regard, K.'s actions should be qualified under Part 2 of Article 259 of the Criminal Code and, in accordance with paragraph "b" of Part 2 of Article 13 of the Criminal Code, the presence of a dangerous recidivism of crimes should be recognized in the actions of the convicted person. When assigning a measure of punishment to a convicted person, the court of supervisory instance takes into account the nature and degree of public danger of the act committed by him, mitigating and aggravating his responsibility, and punishment, as well as the circumstances of the case. In accordance with the requirements of paragraph "b" of Part 5 of Article 48 of the Criminal Code, a convict should be assigned to a high-security penal colony to serve his sentence. In connection with the above, the supervisory judicial board of the Supreme Court changed the judicial acts against K.: K.'s accusation of illegal acquisition of narcotic drugs was excluded from the verdict. The actions of the convicted person from paragraph "b" of Part 3 of Article 259 of the Criminal Code have been reclassified to part 2 of Article 259 of the Criminal Code. In accordance with paragraph "b" of Part 2 of Article 13 of the Criminal Code, the presence of a dangerous recidivism of crimes was recognized in his actions. Based on Article 60 of the Criminal Code, K. was sentenced to 7 (seven) years and 6 (six) months in prison with confiscation of property and serving his sentence in a high-security penal colony. In the rest, the verdict of the court and the decisions of the courts of appeal and cassation instances were left unchanged. 

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