A private complaint against the decision, made with gross violations of the norms of substantive and procedural legislation
To the Judicial Board for Criminal Cases of the Almaty Regional Court
from the defender of the convicted A.K.S. -
lawyer Sabit Davletovich Nigmetov
IIN .....
phone: 87009785755, ..
79 Abylai Khan Ave., Almaty
Office 304
a private complaint against the decision of the Ili District Court of the Almaty region dated 06.06.2024
Dear Judicial Board, I am writing to you with a complaint against the decision of the Ili District Court of the Almaty region dated June 6, 2024, which was issued with gross violations of the substantive and procedural legislation of the Republic of Kazakhstan.
According to P. 9 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated October 2, 2015 No. 6 "On judicial practice of conditional early release from serving a sentence, replacement of the unserved part of the sentence with a milder type of punishment and reduction of the term of the imposed punishment" – When deciding on parole and commutation of the imposed punishment with a milder type of punishment, the courts should provide an individual approach and, in each specific case, determine whether the information contained in the petition and other materials is sufficient for parole from serving the sentence and commutation of the imposed punishment with a milder type of punishment, i.e. evaluate positive changes in the behavior of the convict.
According to Part 6 of Article 480 of the Criminal Procedure Code of the Republic of Kazakhstan – After the preparatory part of the court session has been held, the convicted person or the institution or body executing the punishment, respectively, shall present the petition. Then the court examines the received materials and listens to the explanations of the persons who appeared at the court session. The convicted person has the right to participate in the examination of all materials at the court session, speak in court and express his opinion on the issue under consideration.
The prosecutor presents to the court a reasoned opinion on the possibility of satisfying the petition or leaving it without satisfaction.
When considering the petition of the convicted A.K.S., the specified requirements of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan and the Criminal Procedure Code of the Republic of Kazakhstan were violated by the court, the court session was conducted superficially, the materials of the personal file and the materials attached to the petition of the convicted A.K.S. were not examined at the court session. The prosecutor did not substantiate his opinion that the petition should be refused, he limited himself to only one argument, that Agibayeva K.S. had not been settled the civil claim.
The superficial consideration of the petition by the court is also indicated by the fact that at the beginning of the resolution, where the persons involved in the process are indicated, the surname of the convicted S. A. is indicated, the date of consideration of the petition is indicated on June 06, 2023, the crime committed by A.K.S. the court in the decision classified as particularly serious crimes, thereby worsening her situation, whereas by the verdict of the court, A.K.S. was found guilty of committing a serious crime.
Further, the court points out in its ruling that "The description does not specify the facts for which the convicted person received encouragement and under what circumstances, as well as showed her best qualities and intentions" without reference to a specific regulatory legal act. Firstly, a representative of the correctional institution participated in the court session, from whom the court could clarify why A.K.S. received encouragement and under what circumstances, but the court did not do this. Secondly, Article 72 of the Criminal Code of the Republic of Kazakhstan, art. 480 of the Criminal Procedure Code of the Republic of Kazakhstan and the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated October 2, 2015 No. 6 "On judicial practice of conditional early release from serving a sentence, replacement of the unserved part of the sentence with a milder type of punishment and reduction of the term of the imposed punishment" do not contain requirements for specifying the facts, for which the convicted person received encouragement and under what circumstances. A correctional facility is a high–security facility with its own internal rules and there are not many opportunities to prove yourself while in it.
Also, according to Part 2 of Article 480 of the Criminal Procedure Code of the Republic of Kazakhstan – The institution or body executing the punishment is required to provide the court with materials relevant to making a lawful decision, including evidence confirming the length of the sentence served by the convicted person, information on compensation for damage caused by the crime, and detailed data characterizing the behavior of the convicted person while serving the sentence. As can be seen from this article, nothing is said in article 480 of the Criminal Procedure Code of the Republic of Kazakhstan about specifying the facts for which the convicted person received this or that encouragement.
Regarding the compensation of A. K.S. for the damage caused by the crime. The court's conclusions that A.K.S. did not repay the damage in the amount of 93,853,422 tenge do not correspond to the materials of the personal file and the materials of the petition.
This indicates that neither the prosecutor nor the court examined the documents submitted to the Ili District Court, the court session was held formally.
At the time of the sentencing of the Shuisky District Court on December 24, 2020, 91 110 737 tenge was collected jointly with A.K.S. and other accomplices of the crime in compensation for the civil claim (sheet 89 of the verdict of the Shuisky District Court of Zhambyl region, a copy of the verdict is attached to the complaint).
On March 17, 2021, the Judicial Board for Criminal Cases of the Zhambyl Regional Court, based on the results of consideration of appeals from the defense and the prosecution's petition, indicated in its decision on sheet 14 that at the time of consideration of appeals, A.K.S. had been compensated for damage in the amount of 25,000,000 tenge, the remaining part of the damage is 65,000,000 tenge (copy I am attaching the resolutions).
Moreover, the convicted Agibayeva K.S. was provided with a letter of inquiry from the State Revenue Department for the Shusky district of the Zhambyl region, according to which, in total, A.K.S. paid 25,711,869 tenge for damages, of which:
- compensation for damages on the claim – 25,063,125 tenge;
- state duty – 597,860 tenge;
- procedural costs – 2784 tenge;
- to the Victims' Compensation Fund – 48,100 tenge.
The defense pointed out these facts to the court, but the court did not reflect these facts in the decision and did not evaluate them, which is a violation of the current legislation of the Republic of Kazakhstan.
I also disagree with the court's argument that the availability of rewards and impeccable behavior is the responsibility of the convicted person. According to Part 1 of Article 11 of the Criminal Executive Code of the Republic of Kazakhstan, convicts are obliged to:
1) comply with the requirements established by this Code, other regulatory legal acts, as well as a court verdict;
2) comply with the internal regulations of institutions and bodies executing punishment;
3) comply with the legal requirements of employees of institutions or bodies executing sentences, as well as persons authorized to monitor and supervise the behavior of convicted persons;
4) appear at the call of the administration of institutions or bodies executing punishments and provide explanations on the issues of execution of punishment and other measures of criminal legal impact;
5) not to leave the territory of the Republic of Kazakhstan until the main sentence is fully served or released from punishment, the expiration of probation control, the expiration of the suspended sentence;
6) politely address the staff, other convicts, as well as persons visiting institutions and bodies executing punishments;
7) be conscientious about work and study;
8) in cases stipulated by law, undergo mandatory and preventive medical examinations in order to detect infectious diseases in a timely manner, as well as an examination to identify the facts of substance use and intoxication, injury;
9) undergo genomic registration in accordance with the legislation of the Republic of Kazakhstan.
As can be seen from this article, receiving rewards and impeccable behavior are not the responsibility of the convicted person, and the court was obliged to take these circumstances into account when deciding on parole.
The administration of the correctional institution characterizes the convict A.K.S. only on the positive side, A.K.S. is registered in the Ili district hospital with a diagnosis of Bronchial asthma and Arterial hypertension, and at the time of consideration of the application her age is 60 years. Despite this, A.K.S. participates in community service and other events held at the institution. They also keep in constant contact with their relatives. However, the Ili District Court points out that "No other evidence has been provided to the court confirming the correction of the convicted person," thereby completely ignoring the characterization given by A.K.S.
According to paragraph 9 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated October 2, 2015 No. 6 "On judicial practice of conditional early release from serving a sentence, replacement of the unserved part of the sentence with a milder type of punishment and reduction of the term of the imposed punishment" - the court's conclusion on the correction of the convicted person should be based on comprehensive accounting of data on his behavior, not only during the time immediately preceding the consideration of the petition, but also for the entire period of stay in the institution, including the time in custody before sentencing. According to the description, A.K.S. did not allow violations of the order of serving her sentence while in another institution, before being transferred to the Russian State Institution "Institution No. 10".
According to P. 12 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated October 2, 2015 No. 6 "On judicial practice of conditional early release from serving a sentence, replacement of the unserved part of the sentence with a milder type of punishment and reduction of the term of the imposed punishment" – There should be no cases of improper application of conditional early release and replacement of the unserved part of the sentence with a milder type of punishment, as well as unjustified refusal to release the convicted person from further serving the sentence and replacement of the unserved part of the sentence with a milder type of punishment, in relation to convicts who do not need to fully serve the term of the imposed punishment.
The courts have no right to refuse parole for reasons not provided for by law, such as the leniency of the sentence imposed, the short duration of the convict's stay in this institution, the denial of guilt to the convicted person, the presence of a criminal record in the past, serving a sentence for committing a serious or especially serious crime, etc.
However, when issuing the decision of the Ili District Court, this requirement of paragraph 12 of the Regulatory Resolution was not complied with, according to far-fetched arguments, the court groundlessly refused the parole of A.K.S.
Based on the above, I ask:
- the decision of the Ili District Court of the Almaty region of June 6, 2024, to cancel, to satisfy the petition of A.K.S. for parole from serving a sentence of imprisonment.
Appendices: a copy of the decision of the Ili district Court of the Almaty region, a copy of the verdict of the Shuisky district court of the Zhambyl region, a copy of the decision of the Zhambyl regional court, a letter of reference from the State Revenue Department for the Shusky district of the Zhambyl region, a notice of protection for Nigmetov S.D., a notice of protection for Sarzhanov G.T., lawyer's certificate for Nigmetov S.D., lawyer's certificate for Sarzhanov G.T.
Lawyer S. Nigmetov
06/19/2024
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