Improper application of the criminal and criminal procedure laws led to a change in the court verdict in the case, with partial cancellation and termination of the proceedings in the absence of corpus delicti.
By the verdict of the specialized interdistrict criminal court of the East Kazakhstan region dated July 14, 2010, ruled with the participation of jurors, P., previously convicted on April 18, 2006 under part 2 of Article 259 of the Criminal Code to 3 years in prison, was convicted under paragraph "b" of part 3 of Article 259 of the Criminal Code (as amended in 1997 to 11 years and 6 months of imprisonment with confiscation of property and serving a sentence in a special-regime penal colony. On the basis of paragraph "b" of part 3 of Article 13 of the Criminal Code (as amended in 1997), a particularly dangerous recidivism of crimes was recognized in his actions. In accordance with paragraph "d" of part 1 of Article 88, part 1 of Article 95 of the Criminal Code (as amended in 1997), the convicted person was prescribed compulsory drug addiction treatment in places of detention. By the decision of the Cassation judicial board of the East Kazakhstan Regional Court of August 25, 2010, the verdict of the court remained unchanged. By the verdict of the jury, P. was found guilty of having, under unknown circumstances, acquired and stored heroin on an especially large scale, with a total weight of 1,1998 grams, for the purpose of selling. Then, on January 29, 2010 at 11 a.m. illegally sold Zh for 1,000 tenge to a conditional buyer. the narcotic drug is heroin weighing 0.2808 g., on a large scale. Similarly, P. sold J. again at 4 p.m. on the same day. heroin for 3,000 tenge, weighing 0.7191 grams, on a large scale. On January 30, 2010, during P.'s arrest, a package of heroin weighing 0.1999 grams was found and seized, i.e. in large quantities, which he kept for sale. After hearing the statement of the prosecutor who supported the arguments of the protest, having studied the materials of the criminal case, having discussed the arguments of the protest, the judicial board considers the protest of the Prosecutor General of the Republic of Kazakhstan to be satisfied. Taking into account the fact that P. was convicted by a jury, the grounds for reviewing the verdicts and decisions of the court with the participation of jurors that have entered into force are established by article 665 of the CPC. Based on this rule, judicial acts involving jurors may be reviewed in cassation on the grounds specified in paragraph 1 of part 1 and part 2 of Article 485 of the CPC, or in connection with the improper application of the norms of the General and Special Parts of the Criminal Code of the Republic of Kazakhstan when sentencing.
There are such grounds in the case, according to the episode of selling heroin weighing 0.2808 g. P. was convicted not guilty. The charge in this part is based only on the fact of the voluntary distribution of heroin by a person under the pseudonym J. and the latter's testimony about the purchase of heroin from P. At the same time, no operational measures were actually carried out on this episode, and there is no information about them in the case file. The above indicates a violation of the requirements of the law for collecting evidence to establish the guilt of a person and does not meet the criterion of their sufficiency to charge P., especially since the latter disputed his guilt in this episode. In this regard, regarding P.'s conviction for the sale of heroin weighing 0.2808 grams on January 29, 2010, the court verdict is subject to cancellation with the termination of the proceedings in view of the conviction of an innocent person. In addition, in accordance with the requirement of article 113 of the CPC, an event and the elements of a criminal offense provided for by criminal law (time, place, method and other circumstances of the commission of an offense) are subject to mandatory proof in a criminal case. Article 397 of the CPC explicitly stipulates that the descriptive and motivational part of the conviction must contain a description of the criminal offense recognized by the court as proven, indicating the place, time, and method of its commission. Meanwhile, the circumstances included in the subject of evidence on the qualifying basis of the acquisition of narcotic drugs have not been established by the pre-trial investigation body and the court has not indicated in the verdict. The above entails the exclusion from the judicial acts that took place in the case of P.'s accusation of illegal acquisition of narcotic drugs on a particularly large scale under circumstances not established by the investigation. The rest of the court's conclusions in the verdict on proving P.'s guilt in illegal drug transactions are based on everything
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