Violation of the rules of investigation and evaluation of evidence
By the verdict of the Kazybekbi District Court of Karaganda dated September 16, 2016, T., who had no previous criminal record, was found innocent and acquitted under part 3 of Article 188 of the Criminal Code for the lack of evidence of his involvement in the commission of a criminal offense. By the decision of the Judicial Board for Criminal Cases of the Karaganda Regional Court dated November 10, 2016, the court's verdict against T. It was canceled due to the inconsistency of the court's conclusions set out in the verdict with the actual circumstances of the case, and at the same time, the private decision of the court of first instance of September 16, 2016, issued to the pre-trial investigation authorities due to violations of the requirements of the law, was canceled. By the verdict of the judicial board for criminal cases of the Karaganda Regional Court dated November 10, 2016, T. was sentenced to 4 years in prison under part 3 of Article 188 of the Criminal Code. Based on article 63 of the Criminal Code, the punishment was decided to be considered conditional, with the establishment of probation control for the entire term of imprisonment and the imposition of duties listed in the court verdict. During the consideration of this case by the Court of Appeal, the rules of investigation and evaluation of evidence established by Articles 124-125 of the CPC, paragraphs 12-13, 19 of the Normative Resolution of the Supreme Court "On Certain Issues of Evaluation of Evidence in Criminal Cases" dated April 20, 2006 No. 4 (as amended and supplemented by the normative resolution of the Supreme Court dated June 25, 2010 No. 11), namely: a comprehensive and objective study of each of the evidence provided by the prosecution has not been conducted through analysis and comparison with other evidence, including the assessment of each of them from the point of view of relevance, admissibility and reliability, as well as the recognition of their totality as sufficient to make the right decision in the case; when assessing the contradictions in the testimony of various witnesses, the court did not indicate the motives for which some statements were accepted and other statements were refuted as untrue. Thus, assessing the testimony of the convicted T., given by him during the pre-trial investigation, according to which he fully admitted his guilt in stealing P.'s property, and recognizing these statements as permissible and reliable, using them as the basis for the appeal verdict, the judicial board did not assess the fact that T.'s testimony as a suspect and his testimony on the video, when checking the testimony on the spot, there are significant contradictions about the method of entry into the victim's apartment.
Violation of the rules of investigation and evaluation of evidence
In particular, in the video, T. indicates that the metal grille was poorly secured and he tore it off the window completely, after which he squeezed out the plastic window with a screwdriver. This information is missing from the contents of the protocol for checking T.'s testimony on the spot and in the case file (the video does not match the written protocol), and also contradicts the data from the protocol for examining the scene and the testimony of the victim P. about the method of entry into the apartment. The victim P. confidently stated in the court of first instance that T. according to his physical data and with the latter method of entry, he could not independently pull out or bend the grate; in addition, the information provided by T. in the confession about the location of the stolen camera in the apartment contradicts the factual circumstances of the case, that is, the camera was on the table in the hall, T. also claimed that it was stolen from the bedside table from the bedroom. At the same time, the contents of T.'s confessions and the case file did not specify any details at all about how and with the help of which objects T. I bent back the metal grate and squeezed out the plastic window, what measures were taken to find them. The testimony of T. at the stage of the pre-trial investigation, according to which on January 23, 2016, he had no permanent place of residence and spent the night in the heating mains wells, overslept all day, and committed theft in the evening, contradicts the testimony of witnesses A., K., and Zh. questioned in the court of first instance, who testified that during the theft, T. cohabited with A., lived at a certain place of residence, worked, did not drink alcoholic beverages. The specified data on the work and behavior of T. at the time of the theft, the court of first instance checked and objectively confirmed. Within the meaning of the Criminal procedure Law, the testimony of a suspect or accused who admits his guilt and shows where and under what circumstances he committed a criminal offense is direct evidence and can be used as the basis for a guilty verdict if these statements are supported by other evidence in the case. However, the court of appeal, without giving any assessment to the contradictions in the testimony of the convicted person with other evidence, without establishing with certainty the circumstances to be proved in the criminal case (method, motive and other circumstances of the crime), formally and unilaterally assessed the confessions of T., including those given by him when checking the testimony on the spot, putting they are the basis of the guilty verdict. In addition, significant violations of the criminal procedure law committed during the seizure of part of the stolen property from the convict and the procedural registration of his detention were ignored.
In particular, the grounds and procedure for the seizure are established by articles 253, 254 of the CPC, according to which the seizure is carried out in order to seize certain items and documents relevant to the case, and if it is known exactly where and who they are located, as well as property subject to confiscation. The seizure is carried out by the person conducting the pre-trial investigation, according to a reasoned decision and with the mandatory use of scientific and technical means of recording its progress and results. From the testimony of witness S., it follows that he, having allegedly from the words of T. himself, about the location of the gold earrings stolen from P.'s apartment, not being the person conducting the pre-trial investigation of the criminal case, and not having a legally binding order from such a person, he arbitrarily took T. to the location of the stolen property, where he single-handedly made its seizure. After that, he took the convict to the police station, where the seizure of the gold earrings from T. personally was formalized by the investigator. At the same time, scientific and technical means of fixing it were allegedly used, but as a result of a system failure when transferring files to a desktop computer, they were destroyed. The apparent violation of the principle of legality during the seizure, non-compliance with the procedure established by law for its conduct, and the actual seizure by a person who does not have the right to carry out its proceedings in this criminal case did not receive any legal assessment in the appeal verdict. At the same time, the circumstances that remained beyond the assessment of the judicial board were the confessions of T. in the case of the location of the stolen property hidden by him, the testimony of operative S. about the place of their actual seizure contradicts: T. in all his confessions indicated that he hid the earrings behind a carpet on the wall in his mother's house at 12 Gornospasatelnaya Street, while S.'s testimony indicates that they were discovered and seized among the woodpile in the courtyard of this house. Thus, the main evidence of T.'s guilt, which is the basis of the guilty verdict, is legally null and void, as having significant contradictions with other evidence or obtained as a result of a gross violation of the procedure established by the criminal procedure law for obtaining them. These circumstances, as well as other factual data established during the main trial from the testimony of police officers R., B., and S. questioned in the case, an analysis of the contents of written procedural documents (the protocol of detention, the seizure of gold earrings, and their identification by the victim) according to the chronology of their compilation, and careful comparison with the actually established circumstances at the court session were They were assessed in detail and reasonably on the basis of the law by the court of first instance in the verdict. According to the results of the assessment, based on the principles of legality and the presumption of innocence, the court of first instance correctly pointed out the inadmissibility of the evidence of the prosecution, lawfully and reasonably passing an acquittal against T., while issuing a private decision to the criminal prosecution authorities. Considering the arguments of the prosecutor's protest, the Court of Appeal formally, incompletely and unilaterally overestimated the evidence in the case, issued a guilty verdict based on evidence that it did not properly assess taking into account their totality and, without sufficient legitimate grounds, overturned the acquittal and a private decision of the court of first instance. Thus, when passing an appeal verdict, the court committed significant violations of the criminal procedure law, which affected the outcome of the case, violated the principles of legality and presumption of innocence, and the requirements of the law for evaluating evidence. Collectively, the violations committed influenced the decision on the convict's guilt.
Violation of the rules of investigation and evaluation of evidence
Considering the circumstances described above, the judicial board concludes that T.'s arguments about self-incrimination in committing a crime under the influence of police officers who took advantage of his dependence on alcohol, binge drinking, and defenseless social status were not refuted in the indictment, his guilt in the case was not proven, and T. was convicted innocent. In addition, based on the results of the case review, the judicial board also considers illegal the decision of the Court of appeal to revoke a private ruling, since the court of first instance indicated specific violations of the requirements of the criminal procedure law committed by the investigating authority during the collection of evidence, their improper procedural registration during the detention of T., his personal search, verification and clarification of testimony on location, seizure of the stolen and their identification by the victim, which significantly affected the reliability and objectivity of establishing factual data on the committed criminal offense and the persons who committed it. Based on the above, the judicial Board for Criminal Cases of the Supreme Court overturned the decisions and verdict of the judicial board for criminal cases against T., while leaving the acquittal and private decision of the court of first instance unchanged. The petition of the convicted T. was granted.
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