NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of December 11, 2020 No. 6

About modification and amendments in some normative resolutions of the Supreme Court of the Republic of Kazakhstan

I. Make changes and additions to the following normative resolutions of the Supreme Court of the Republic of Kazakhstan:

1. "About practice of application of the legislation regulating the rights and obligations of persons which were injured from criminal offenses" of April 24, 1992 No. 2 (with changes and additions made by normative resolutions of the Supreme Court of the Republic of Kazakhstan of December 22, 2008 No. 3; of June 25, 2010 No. 5; of April 21, 2011 No. 1; of April 20, 2018 No. 8):

1) in Item 7 in paragraph one the second offer to state in the following edition:

"The lawyer based on the written notice of protection (representation), and any person can be the representative in this case as, competent by law to represent the interests of the victim based on the power of attorney including close relatives.";

2. "About practice of application of the legislation on criminal liability for smuggling" of July 18, 1997 No. 10 (with changes and additions made by normative resolutions of the Supreme Court of the Republic of Kazakhstan of April 30, 1999 No. 3; of June 18, 2004 No. 3; of December 22, 2008 No. 7; of April 21, 2011 No. 1; of April 20, 2018 No. 8):

Item 6 to add 1) with paragraphs the third and fourth the following content:

"Illegal export of cultural values and objects of national cultural property out of limits of the Republic of Kazakhstan or their non-return to the Republic of Kazakhstan, with movement through frontier to other state of the Eurasian Economic Union is qualified as regards 1-1 article 203 UK.

Illegal export of cultural values and objects of national cultural property out of limits of the Republic of Kazakhstan or their non-return to the Republic of Kazakhstan, with movement through customs border of the Eurasian Economic Union, in the presence in actions of face also of structure of economic smuggling is qualified on set of part 1-1 of article 203 UK and the corresponding part of article 234 UK.";

3. "About application of the legislation on the cases connected with drug trafficking, psychotropic substances, their analogs and precursors" of May 14, 1998 No. 3 (with changes and additions made by normative resolutions of the Supreme Court of the Republic of Kazakhstan of April 30, 1999 No. 2; of December 22, 2000 No. 19; of July 11, 2003 No. 7; of April 21, 2011 No. 1; of March 31, 2017 No. 3):

Item 1 to state 1) in the following edition:

"1. Explain that criminal liability is established for illicit trafficking in those drugs, psychotropic substances, their analogs which are included in "The list of the drugs, psychotropic substances and precursors which are subject to control in the Republic of Kazakhstan" (further – the List), No. 470 approved by the Order of the Government of the Republic of Kazakhstan of July 3, 2019 (further - the Order of the Government).

In case of determination of the sizes of drugs, psychotropic substances, their analogs it is necessary to proceed from the Summary table about reference of the drugs, psychotropic substances, their analogs and precursors found in illicit trafficking, to small, large and especially large sizes (further – the Summary table), approved by the Order of the Government.

Under drug trafficking, psychotropic substances, their analogs and toxic agents, attracting criminal liability, it is necessary to understand their not medical consumption in public places, production, conversion, acquisition, storage, transportation, transfer and the sale made in violation of the law of the Republic of Kazakhstan.";

2) in Item 2-1:

the paragraph one to state in the following edition:

"Illegal transportation of drugs, psychotropic substances, their analogs any actions for their movement within the Republic of Kazakhstan, including within one settlement, irrespective of method of transportation and the storage location, made with violation of the law of the Republic of Kazakhstan are recognized.";

add with the paragraph the sixth the following content:

"According to the subitem 8) of article 1 of the Law of the Republic of Kazakhstan of July 10, 1998 No. 279 "About drugs, psychotropic substances, their analogs and precursors and measures of counteraction to their illicit trafficking and abuse" is understood by them their movement from one state to other state as import and export of drugs, psychotropic substances and precursors.";

3) in Item 3-1:

in paragraph one after the word "Illegal" to add with the words "production, conversion";

state paragraph two in the following edition:

"on part two of article 296 UK if they are made without sales objective concerning drugs or psychotropic substances, their analogs in the amount of, not constituting large;";

in paragraph three of the word "in small size" shall be replaced with words "in the amount of, not constituting large";

in paragraph five of the word "in small, large or especially large size group of persons by previous concert or repeatedly or the official with use of official position" shall be replaced with words "group of persons by previous concert, repeatedly, the official with use of official position, by means of use of electronic information resources or in the public place";

in paragraph six of the word "in small, large or especially large size criminal group either in the organizations of education or concerning obviously minor" shall be replaced with words "criminal group";

add with the paragraph the seventh the following content:

"In case of committing by person of two acts, one of which is subject to qualification by the corresponding part of article 296 UK, and another - by the corresponding part of article 297 UK, the sign of not momentariness is absent. These acts are qualified on set of criminal offenses.";

Item 7 to add 4) with the paragraph third the following content:

"Illegal transfer of drugs, psychotropic substances, their analogs from abroad is subject to additional qualification under article 286 UK."

Item 7-1 to exclude 5);

6) in Item 9 after words to "other person" to add with words "including contactless method, with use of "bookmarks", the Internet of resources and e-wallets";

7) in Item 9-1:

in paragraph one after the word "Is sold" to add with the words "or transfer";

in paragraph four of the word "or the official with use of official position in respect of drugs or psychotropic substances, their analogs in small or large sizes" shall be replaced with words "the official with use of official position, by means of use of electronic information resources or in the public place";

the fifth to state the paragraph in the following edition:

"on part four of article 297 UK if transfer or sale are made concerning drugs or psychotropic substances, their analogs by criminal group or if their sale is made in the organizations of education or obviously to the minor.";

8) in Item 9-3:

in paragraphs one, the second and third ambassador of the word "illegal" to add with words "production, conversion,";

in paragraph four:

after the word "illegal" to add with words "production, conversion,";

shall be replaced with words the words "and also it is sold" "and also transfer and sale";

Item 9-4 to add 9) with paragraphs the third and fourth the following content:

"It is necessary to exclude involvement of person to criminal liability on the separate episodes of accusation which are not registered in the procedure established by the law in the Unified register of pre-judicial investigations.

Conducting repeated investigation and search operations on purchase of drugs at the same same person suspected with attraction imitating criminal activities is not allowed if the first fact of sale is confirmed and the objectives of operational search activities are completely achieved. Conducting additional investigation and search operations concerning this suspect can take place only for the purpose of identification of sources of acquisition of drugs by it, criminal group or other purposes of criminal procedure with pronouncement of the relevant motivated resolution.";

Item 10 to state 10) in the following edition:

"10. It is necessary to understand the places specified in Regulations of Admission and registration of a statement, the message or the official report on criminal offenses as the public place specified in Item 6) to part three of article 297 UK and also maintaining the Unified register of the pre-judicial investigations approved by the Order of the Attorney-General of the Republic of Kazakhstan of September 19, 2014 No. 89, No. 9744 registered in the Ministry of Justice of the Republic of Kazakhstan on September 23, 2014.

The fact of making of acts in the public place according to requirements of article 113 Code of Criminal Procedure shall be proved with establishment of time, the place, method and other circumstances of its making. Publicity of making of crimes in the public place is obligatory sign in case of qualification of act on Item 6) of part three of article 297 UK.

Sale of drugs, psychotropic substances or their analogs in the organizations of education or obviously minor irrespective of method (publicly or it is reserved) attracts responsibility on part four of article 297 UK and does not require additional qualification on Item 6) of part three of article 297 UK. In case of determination of concept the organization of education No. 319-III needs to proceed from provisions of article 40 of the Law of the Republic of Kazakhstan of July 27, 2007 "About education".";

11) in Item 11:

in the paragraph the second" (appendix 2 to the Law on drugs)" to exclude words;

to state the paragraph of the sixth in the following edition:

"In case of qualification of drug trafficking, psychotropic substances, their analogs it is necessary to proceed from the sizes established by the Summary table. At the same time the amount of drugs, psychotropic substances, their analogs is determined for each type separately and cannot be summed up. When the Summary table establishes types of drugs with the accompanying substances and fillers (for example, heroin, including the accompanying substances and fillers, codeine with salts, codeine of dosage form, methadone with salts, morphine with salts, opium with neutral fillers (flour, sugar, starch, etc.), cocaine with salts, including the accompanying substances, MDMA, MBDB with salts, эфедрон with the accompanying substances, etc.), it is necessary to proceed from the weight of drugs together with fillers.";

Item 16 to add 12) with paragraphs the fifth and sixth the following content:

"In relation to article 302 UK provision of rooms for the same purposes is understood as provision of the room for the organization or content of brothel.

The actions of person expressed in single provision of the room for joint use of drugs do not form structure of criminal offense, stipulated in Article 302 UK as under this Article it is necessary for qualification that the perpetrator organized or contained housing or the non-residential premise as brothel for the use on systematic basis of drugs or transferred them to other persons for the organization and content of brothel.";

Item 18 to add 13) with paragraphs second and third the following content:

"If person concerning whom there are suspicions of making of illegal actions before personal search, search of the dwelling or other room which is carried out for the purpose of detection of drugs or other objects voluntarily issued drugs which could be found, then it is not voluntary issue, stipulated in Item 2 Notes to article 296 UK. If person in case of production of search in one place declared availability of drugs at it for the personal use which are stored in other place (at the dacha, in kitchen garden, at the neighbor, etc.) which detection without its specifying would be impossible, then the specified actions are recognized voluntary issue and person according to Item 2 of Notes to article 296 UK is exempted from criminal liability under this Article.

The voluntary request for medical care in connection with consumption of drugs as the basis for release from criminal liability can take place only before identification of the fact of offense by criminal prosecution authority.";

Item 20 to add 14) with paragraphs the second, third and fourth the following content:

"Vehicles which are used for transportation or as the place of illegal storage of drugs shall be carried to the tool or means of making of criminal offense and are recognized as physical evidences.

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