Violations related to the presentation of invalid evidence to the jury as evidence of the prosecution were the basis for changing judicial acts.
By the verdict of the specialized interdistrict criminal Court of Atyrau region dated May 15, 2011: M., - convicted under paragraph "b" of part 3 of Article 259 of the Criminal Code to 10 years in prison with confiscation of property and serving his sentence in a high-security penal colony. The verdict was upheld by the decision of the cassation board of the Atyrau Regional Court dated June 18, 2012. M. was found guilty by a jury of the illegal acquisition and storage of narcotic drugs for the purpose of sale and distribution, committed repeatedly. When reviewing the case in a supervisory manner at the request of the convicted person, the supervisory judicial board of the Supreme Court came to the following conclusion. The guilt of the convicted M. in the illegal acquisition and storage of narcotic drugs for the sale and distribution of 2,19 grams of marijuana on November 10, 2011, was proved by the case materials examined at the court session of the collegiums with the participation of jurors. At the same time, the prosecution's materials of the criminal case accuse M. of selling narcotic drugs on November 14, 2011 – 2.36 grams. Marijuana is presented to the jury panel in gross violation of the basic principle of the criminal process - legality. According to the provisions of the Law "On Operational Investigative Activities" (hereinafter referred to as the Law), the tasks of operational investigative activities are the detection, prevention, suppression and disclosure of crimes. At the same time, it is not allowed to carry out operational search activities, as well as the use of information obtained during their conduct to achieve goals and objectives not provided for by this Law. When carrying out operational investigative activities, it is prohibited to incite and provoke citizens to commit offenses, to use unlawful actions that restrict the rights, freedoms and legitimate interests of citizens.
The basis for the termination of operational investigative measures is the fulfillment of tasks for which the implementation of the OPM is provided. Paragraph 9-4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan No. 3 dated May 14, 1998, as amended and supplemented by resolutions of the Plenum of the Supreme Court No. 2 dated April 30, 1998, No. 19 dated December 22, 2000, and normative resolutions of the Supreme Court No. 7 dated July 11, 2003 and No. 1 dated April 21, 2011 "On the application of legislation in cases related to the illicit trafficking of narcotic drugs, psychotropic and poisonous substances" established, that the prompt purchase of narcotic drugs or psychotropic substances 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. When carrying out operational search activities, it is prohibited to incite and provoke citizens to commit offenses.
In accordance with the clarifications contained in paragraph 18 of Regulatory Decree No. 3 of December 06, 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 MPM against the same person in order to identify a similar crime is allowed only by issuing an appropriate resolution indicating in it the grounds provided for by law. On November 14, 2011, the criminal prosecution authorities conducted a second operational search event, the prompt purchase of narcotic drugs from M., with gross violations of the above-mentioned requirements of the law and regulatory rulings of the Supreme Court. On November 10, 2011, the criminal prosecution authorities, with the participation of A., who was imitating criminal activity, carried out an operational purchase of narcotic drugs using a video recording device - 2.19 grams of marijuana from M. As a result of the operational purchase, the objectives of the operational search activity were fully achieved, evidence of the crime committed by M., the sale of narcotic drugs, was collected and secured. In accordance with the objectives of the criminal process, the criminal prosecution authorities had to stop Zh.'s criminal actions and bring him to criminal responsibility.
The continuation of additional operational search measures against Zh. could have taken place only 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 the law, without issuing an appropriate order to conduct a second OPM and in the absence of grounds for this, 4 days later, that is, on November 14, 2011, they again carried out a similar prompt purchase of narcotic drugs from M. with the involvement of the same person imitating criminal activity, A. Since the repeated operational purchase was made in obvious violation of the law, its results, in accordance with the requirements of Article 77 of the Constitution of the Republic of Kazakhstan and Article 116 of the CPC, do not have the legal force of proof. In such circumstances, in accordance with the requirements of articles 9 and 10 of the CPC, the materials of the criminal case containing the results of the OPM dated November 14, 2011, are invalid and should not have been presented to the jury as evidence of the charges. In this regard, the proceedings in this criminal case on the episode of M.'s accusation of selling narcotic drugs on November 14, 2011 are subject to termination. The actions of the convicted person, expressed in the illegal acquisition and possession for sale, and the sale of 2.19 grams of marijuana on November 10, 2011, are subject to qualification under part 2 of Article 259 of the Criminal Code. 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 the responsibility and punishment of the circumstances of the case.In accordance with paragraph "b" of part 5 of Article 48 of the Criminal Code. the punishment in the form of imprisonment must be served in a correctional colony of the general regime. The Supervisory Judicial Board of the Supreme Court changed the verdict of the specialized interdistrict criminal Court of Atyrau region and the decision of the cassation board of Atyrau Regional Court in relation to M.. M.'s actions were reclassified from paragraph "b" of part 3 of Article 259 of the Criminal Code to part 2 of Article 259 of the Criminal Code, according to which she sentenced him to 5 (five) years in prison with confiscation of property and serving his sentence in a correctional colony of general regime. The rest of the verdict of the court and the decision of the cassation instance remained unchanged. The Supervisory Judicial Board of the Supreme Court overturned the decision of the specialized administrative court of the city of Ekibastuz and the ruling of the Pavlodar Regional Court. The case of an administrative offense under part 2 of Article 468 of the Administrative Code, initiated against M., was sent to the specialized administrative court of the city of Ekibastuz for a new judicial review in a different composition.
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