According to the episode in the criminal case, evidence not obtained in accordance with the requirements of the law is illegally submitted to the jury for consideration.
By the verdict of the specialized Inter – District Court for criminal cases of Atyrau region dated August 3, 2010, issued with the participation of a jury:K., previously not convicted, sentenced to 10 years of imprisonment with confiscation of property under Paragraph "B" of Part 3 of Article 259 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), serving a sentence in a correctional colony of strict regime. By the decision of the Judicial Board of Cassation of Atyrau Regional Court dated September 13, 2010, the verdict was left unchanged. By the verdict of the court, K. was repeatedly found guilty of illegal trafficking of narcotic substances. The Convicted K. in his application, he indicated that he did not agree with the court's verdict, that he was not involved in this crime, and asked to change the court's verdict, to reduce his criminal behavior from Paragraph "B" of Part 3 of Article 259 of the Criminal Code to part 1-1 of this article. The supervisory judicial board hears the opinion of the prosecutor asking for changes in court decisions, conducts a thorough examination of evidence in a criminal case and considers that judicial acts on K. are subject to change on the basis of the following circumstances. In accordance with Part 1 of Article 128 of the code of criminal procedure, the relevance of each piece of evidence must be assessed in terms of admissibility, validity, and sufficiency for resolving a criminal case in the aggregate of all collected evidence.
In addition, in accordance with article 576 of the code of criminal procedure, it is indicated that in cases of sentences and decisions of a court in which jurors were present that have entered into legal force, proceedings may be conducted at the supervisory stage on the grounds provided for in paragraphs one and two of Article 459 of this code. The conclusion of the court, adopted with the participation of a jury, that is, on the recognition of K. guilty by Paragraph "B" of Part 3 of Article 259 of the criminal code, is not based on the requirements of the law. The court violated the requirements of Article 24 of the CPC and did not take all the measures provided for by law for a comprehensive full and objective study of the circumstances necessary and sufficient for the correct resolution of the case, as well as allowed violations of a number of provisions of the Criminal Procedure Law. Judging by the evidence studied in court, the weight of the convicted K. is 44.97 GR. the episode about the transfer of dried marijuana to B. on January 8, 2010 (for 20,000 tenge), which was a narcotic substance, was proved and approved at a trial with the participation of a jury. In addition, the weight of the convicted K. on January 13, 2010 was 3.24 GR. the evidence on the episode of the sale of dried marijuana to B. (for 3000 tenge) was not obtained in accordance with the requirements of the law and was illegally submitted to the jury for consideration.In accordance with Part 3 of Article 549 and Article 116 of the CPC, evidence obtained in violation of the requirements of the law is not transferred for consideration in the presence of a jury, and it is also indicated that the court of first instance can remove such evidence from the case materials at the request of the parties or on its own initiative. However, during the consideration of the case, these requirements of the law were not met. Paragraph 9-1 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated May 14, 1998 No. 3" on the application of laws on illegal trafficking of narcotic, psychotropic and toxic substances " provides that it is forbidden to provoke and provoke citizens to commit offenses in the implementation of operational search measures. In accordance with the requirements of Article 117 of the code of criminal procedure, the circumstances of the commission of a crime, in particular, each fact of the sale of a narcotic substance in relation to this case, are subject to proof, covered by its own intention to sell.
The requirements of the specified law were not fulfilled in relation to K. and, despite the requirements of the law on the termination of operational search measures and the Prevention of further crime by K., police officers made repeated operational purchases from one person without giving the grounds specified in the law. At the same time, the case does not establish for what purpose the subsequent immediate purchase, which repeats the first purchase, which took place on January 8, 2010, that is, on January 13 of this year, was made, and, judging by the documents of the case, it was not due to the need for an investigation. According to the revealed violations of the law, there were no signs of differentiation in K.'s actions that he repeatedly passed drugs. Therefore, in relation to K. on January 13, 2010, the episode about the transfer of narcotic substances is subject to reduction. On the basis of the above, the supervisory judicial board re-classified the criminal behavior of K. 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 he established confiscation of property, imprisonment for 6 (six) years, serving a sentence in the general regime of a correctional colony.
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