Evidence obtained in violation of the procedure for conducting a procedural action is inadmissible as evidence

By the verdict of the Shemonaikha district Court of the East Kazakhstan region dated June 30, 2016, M., previously convicted: 1) on January 19, 2007, under part 2 of Article 259, Articles 55, 60 of the Criminal Code, he was sentenced to 7 months in prison, released on March 21, 2007 after serving his sentence; 2) On December 11, 2007, under paragraph "b" of part 3 of Article 175 of the Criminal Code, to 6 years in prison, with confiscation of property, by a court decision of the Abai district of the Karaganda region of April 1, 2010, the court's verdict of December 11, 2007 was changed in connection with decriminalization, paragraph "b" of part 3 of Article 175 of the Criminal Code was deleted and according to paragraph "b" of part 2 of Article 175 of the Criminal Code, the penalty was 5 years in prison, with confiscation of property, released on October 30, 2012 after serving his sentence.; – convicted under part 1 of Article 297 of the Criminal Code to 6 years and 6 months in prison, with confiscation of property, and serving his sentence in a high-security penal colony. On the basis of part 1 of Article 14 of the Criminal Code, M.'s actions were recognized as a recidivism of crimes. The term of serving the sentence is calculated from January 16, 2016. In accordance with paragraph 4) part 1 of Article 91, part 1 of Article 98 of the Criminal Code of M. imposed compulsory treatment for hashish addiction at the place of serving the sentence. By the verdict of the court M. He was found guilty of illegally acquiring wild cannabis by collecting it in mid-August 2015, of illegally storing dried marijuana for the sale, some of which, weighing 2.03 grams, he kept with him, some of which, weighing 9.67 grams, he kept at home, in a residential building and outbuildings at the address: Shemonaiha, 144/1 Rebel Street, and the part weighing 18.42 grams was sold on January 16, 2016 to a person under the pseudonym "Morozov", who imitated criminal activity.

Evidence obtained in violation of the procedure for conducting a procedural action is inadmissible as evidence

By the decision of the Judicial Board for Criminal Cases of the East Kazakhstan Regional Court of August 24, 2016, the verdict of the court against convicted M. remained unchanged. According to paragraph 1) of part 3 of Article 254 of the CPC, a personal search may be carried out without a special order and the sanction of an investigating judge if there are sufficient grounds to believe that a person who is in a room or other place where a search is being conducted in compliance with the requirements of Article 254 of this Code is hiding documents or objects that could make a difference to the cause. In accordance with the requirements set out in parts 1 and 3 of Article 254 of the CPC, a search warrant must be authorized by an investigating judge. In exceptional cases, when there is a real fear that the object being sought and (or) seized may be lost, damaged or used for criminal purposes due to delay in its discovery, or the wanted person may abscond, a search may be carried out without the sanction of an investigating judge in accordance with the procedure provided for in part fourteen of Article 220 of this Code. According to the requirements of part 14 of Article 220 of the CPC, if the residential premises are the scene of an incident and its inspection is urgent, then the inspection of the residential premises may be carried out by order of the person conducting the pre-trial investigation, but with the subsequent sending of materials to the prosecutor within a day. The prosecutor, having immediately reviewed the submitted materials, sends them to the investigating judge to verify the legality.

The investigating judge verifies the legality of the inspection and issues a ruling on its legality or illegality, which is attached to the materials of the criminal case. As follows from the materials of the criminal case, the pre-trial investigation body conducted a personal search of the convicted person and a search of his place of residence on January 16, 2016 without the approval of the investigating judge due to the urgency of the investigative actions. Despite the above requirements of the criminal procedure law, on January 17, 2016, the Prosecutor's office of the Shemonaikha district of the East Kazakhstan region issued an illegal decision on the legality of the personal search of M., the search of his house and outbuildings, without sending materials to the investigating judge. Subsequently, after more than three months, these investigative actions were unreasonably recognized as lawful by the decisions of the investigating judge of the Shemonaikha District Court of the East Kazakhstan region dated May 7, 2016. According to paragraph 5) of part 1 of Article 112 of the CPC, factual data obtained with a significant violation of the procedure for conducting a procedural action must be declared inadmissible as evidence if they were obtained in violation of the requirements of this Code, which are by depriving or restricting the rights of participants in the process guaranteed by law or by violating other rules of criminal procedure during a pre-trial investigation or trial have affected or could have affected the reliability of the actual data obtained.

Evidence obtained in violation of the procedure for the procedural action is inadmissible as evidence

In accordance with paragraph 1 of Article 25 of the Constitution of the Republic of Kazakhstan, housing is inviolable. Entry into a dwelling, its inspection and search are allowed only in cases and in accordance with the procedure established by law. Article 77 of the Constitution states that evidence obtained by illegal means has no legal force. Thus, the investigative actions in the form of a personal search of M. and a search of his house, conducted on January 16, 2016, as well as the evidence obtained, were declared inadmissible. Based on the information provided by the Judicial Board for Criminal Cases of the Supreme Court, the proceedings on the episodes of possession of narcotic drugs, dried marijuana, weighing 2.03 grams and 9.67 grams, for the purpose of sale, have been discontinued. Due to the fact that the exclusion of two charges significantly reduces the scope of the entire charge against M., the imposed sentence was reduced to 5 years in prison. In addition, the judicial board decided to cancel the additional penalty in the form of confiscation of property imposed by the court. Motivating the confiscation of property in the court's verdict, the court noted that, taking into account the mercenary orientation of M.'s actions, the additional punishment in the form of confiscation of property specified in the sanction of part 1 of Article 297 of the Criminal Code is mandatory. Whereas the Law of the Republic of Kazakhstan dated November 13, 2015 No. 400-V amended the wording of Article 48 of the Criminal Code of the Republic of Kazakhstan dated July 3, 2014, effective January 1, 2016. In accordance with the norms of part 1 of Article 48 of the Criminal Code, confiscation of property is the compulsory gratuitous seizure and conversion into state ownership of property owned by a convicted person, obtained by criminal means or acquired with funds obtained by criminal means, as well as property that is an instrument or means of committing a criminal offense.

It can be seen from the materials of the criminal case that the pre-trial investigation body has not identified the property owned by M., 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. There was no information in the indictment about the presence of criminal property in M., the convicted person's property was not established at all in the case, and this issue was also not discussed during the judicial review. The rest of the judicial acts were left unchanged and the Prosecutor General's protest was partially satisfied. 

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