Appeal to the court of appeal to cancel the decision of the defense attorney to leave the complaint without consideration and return it

The Judicial Board of the Turkestan regional court for criminal cases

Turkestan city, 160 block, 498

8-725-33-59-704, 8 (701) 567-83-92

725-2460@sud.kz , 130203@sud.kz

Defense Lawyer: Lawyer Sarzhanov Galymzhan Turlybekovich

Legal Office" law and law"

IIN 201240021767.

Republic of Kazakhstan, 050002, Almaty, Almaly district,

Abylai Khan Ave., house 79/71, office 304.

www.zakonpravo.kz info@zakonpravo.kz

Tel.: +7 708 578 57 58 / 8 727 978 57 55.

Suspect: AE K

Yin ..........

Turkestan region, Maktaaralsky district, village N E, zh Street, house 12.

Complaint

(Based on Article 107 of the Criminal Code of the Republic of Kazakhstan)

The Republic of Kazakhstan, having established itself as a democratic, secular, legal and social state, its highest values are man, human life, rights and freedoms (paragraph 1 of Article 1 of the Constitution).

At the same time, everyone has the right to protect their rights and freedoms by all means that do not contradict the law and receive qualified legal assistance (paragraphs 1 and 3 of Article 13 of the Constitution).

April 24, 2025 with the participation of the investigating judge of the Maktaaral District Court of the Turkestan region Slambekov E. B., The prosecutor of the maktaaral District Prosecutor's office Sarzhan E., The lawyer Sarzhanov G. T., The Lawyer of the suspect E. K., The Investigator of the official MAKTAARAL APB D. Zhaksylyk, the lawyer Galymzhan Turlybekovich Sarzhanov, the complainant, using the audio and video recording tool in the courtroom, at a closed court session he considered and decided to file a complaint No. 5143-25-00-2-5m/8 against the actions of the prosecutor:  

The complaint filed by the complainant's lawyer Galymzhan Turlybekovich Sarzhanov for the actions of the prosecutor of Maktaaral district, the investigator of Maktaaral APB D. K. Zhaksylyk should be left unattended and returned.

In the definition part of its decision, the investigative court is guided by the following arguments: "on the consideration of complaints filed against the actions /omissions/ and decisions of the courts of the prosecutor, investigative and inquiry bodies" in accordance with paragraph 5 of the normative resolution of the Supreme Court of the Republic of Kazakhstan No. 3 No. 27.06.2012, complaints about the cancellation of procedural actions (omissions) and decisions, in particular, in the Unified Register of pre-trial investigations, the application for a criminal offense, complaints about the cancellation of registration of a notification or report, with the exception of cases of their registration in violation of the requirements of Paragraphs 1) and 2) of part one of Article 179 of the CPC, as well as complaints about the invalidation of evidence, about the recognition of a person as a suspect, a witness entitled to defense, about improper qualification of an act or the formulation of an accusation, or about its, also, complaints about the illegality of judicial acts are not subject to consideration in accordance with Article 106 of the CPC."

Dear judicial board, we do not agree with this court decision, because the reason for our appeal to the court is the gross injustice and illegality that occurred during the pre – trial investigation of the criminal case against E. K. A. under my protection, and we are deeply dissatisfied with the irresponsible actions of unskilled employees of the prosecutor's office. Their actions undermine the dignity of an employee of the prosecutor's office.

In accordance with Article 1 of the Constitutional Law of the Republic of Kazakhstan" on the prosecutor's office", the prosecutor's office on behalf of the state exercises High supervision over compliance with the rule of law in the territory of the Republic of Kazakhstan within the limits and forms established by law. In accordance with Article 5 of the law, the prosecutor's office carries out high supervision of the rule of law (hereinafter referred to as supervision).

However, the employees of the prosecutor's Office prefer to violate the law out of compliance with it.

Thus, As for the event, time, place of violation of Criminal Law, its method, cause, consequences, from 03.04.2025 in the pre-trial detention center, the investigation revealed a gross violation of Section 4 of Article 216 of the criminal legislation of the Republic of Kazakhstan.

In fact, on March 1, 2025, at 15 o'clock. From 35 minutes to 16 hours. During the interrogation of the suspect within 10 minutes, it was established that the defender was not present, and the signature of S. Aknazarov, who was called as a defender in the protocol, was put later or by another person.

So, the investigator of the Criminal Code of the Republic of Kazakhstan 60-64, 80, 81, 110, 115, 197, 199, 208-210, 212, 216 it is established that the interrogation was carried out in violation of the requirements of the code without compliance with the norms of articles.

Article 64 of the Criminal Code of the Republic of Kazakhstan. When detaining a suspect, before starting any investigative actions in the presence of a suspect, the criminal prosecution body is obliged to immediately explain to the suspect his rights provided for by this code, a note is made in the protocol of interrogation of the suspect and in resolutions on recognizing the person as a suspect and qualifying the actions of the suspect.

However, on the part of the investigation, the provisions of this article were drawn up formally and, in fact, the rights of the suspect before interrogation were not explained.

Factual data inadmissible as evidence in accordance with Article 112 of the CPC, if they are obtained in violation of the requirements of this code, contribute or may contribute to the reliability of factual data obtained during a pre-trial investigation or trial of a case by depriving the participants in the process of rights guaranteed by law or by: Factual data obtained in violation of Criminal Procedure Law shall be recognized as inadmissible data as evidence and shall not be subject to prosecution, nor shall they be used in proving any circumstances specified in Article 113 of this code.

12.04.2025 at 11:01 pm, registration on the e-application electronic portal no. ZT-2025-01196565, to the prosecutor of Maktaaral District of Turkestan region on the basis of Article 105 of the CPC of the Police Department of Maktaaral District of the Turkestan region for the actions of the senior investigator of the TB Department of the CPC of the RK 24, 58, 64, 65-1,78, 99, 100, 105 in accordance with the articles, we wrote a complaint under the guidance of:

* Adopt acts of prosecutor's supervision or acts of prosecutor's response in order to eliminate violations of the rule of law in accordance with the procedure established by law;

If there is a violation of this law:

* Bringing to disciplinary responsibility police officers responsible for non-performance or improper performance of official duties;

* From the suspected E. K. A. on March 1, 2025 at 15 H. The protocol of interrogation of a suspect between 35 minutes and 16 hours and 10 minutes - exclusion from the materials of a criminal case with the recognition of illegal and unsuitable as evidence;

* Protection of materials obtained from the prosecutor's office under prosecutor's supervision;

* Respond to this application within the time limits established by Article 105, Part 2 of the Criminal Code of the Republic of Kazakhstan.

As specified in Article 58 of the Criminal Code of the Republic of Kazakhstan, the prosecutor is an official within his competence exercising other powers in accordance with Article 83 of the Constitution of the Republic of Kazakhstan and this code, and in the presence of grounds for this, in accordance with the procedure provided for by this code, the prosecutor, by his decision, supervises the legality of pre-trial investigation.

Based on the above, the defense counsel asked the prosecutor's Office to take into account the following recommendations in the course of checking our arguments in the motivation part of the complaint:

1) video recording tape located in the investigator's office on March 1, 2025, at 15 hours. From 35 minutes to 16 hours. (During the court session, it was established that the prosecutor's office did not take any actions to obtain a video recording, and it was established that the prosecutor's office gave oral instructions to the investigation on 24.04.2025 to request a video recording of the video).

2) March 1, 2025, 15 H. From 35 minutes to 16 hours. Within 10 minutes, a detealization of the phone number of the defense attorney S. Aknazarov, who took part in the investigation, is carried out to determine the presence or absence of a communication operator belonging to the police department during the defense during the investigation. (During the court session, the prosecutor's office did not receive a written opinion of S. Aknazarov on this complaint or a request from the suspect A on this fact).

         However, in the resolution of the prosecutor of Maktaaral District of April 17, 2025, senior adviser of Justice Dosayev A. T., on the refusal to satisfy the complaint, there is no report on the conduct of the actions proposed by the Defense party, while the prosecutor stated that "the Defense's arguments for recognizing the protocol of interrogation from the suspect E. K. as illegal and excluding it from the list of evidence are not supported by objective data." The defense of the collection of evidence was put on the tarp.

         The defender's competence does not include obtaining a phone number for detealization and obtaining an audio and video recording of the APB. In this case, it is a gross violation of the law on the part of the prosecutor's office that, within the limits of its competence, the prosecutor's office does not conduct a detealization of the phone number and an audio video recording of the APB, the receipt of materials exposing the misconduct of the investigator with the possibility of receiving a request from the suspect A.

If the prosecutor's office collected the above-mentioned materials and presented evidence with the same materials, there would be no doubt about the protection of the tarp. The defense attorney is not obliged to prove questionable procedural actions in the case, but the prosecutor is obliged to investigate questionable tregu actions.

Unresolved doubts about the guilt of the suspect, accused, and defendant are interpreted in their favor, as indicated in the norm of Article 19 of the Criminal Procedure Code of the Republic of Kazakhstan "presumption of innocence". It is stated that doubts arising in the application of criminal and criminal procedure laws should also be resolved in favor of the suspect, accused, defendant.

According to Article 106 of the Criminal Code of the Republic of Kazakhstan, a person whose rights and freedoms of a suspect in a criminal case are directly affected by the actions (omissions) and decisions of the prosecutor, investigative and inquiry bodies has the right to apply to the court with a complaint to refuse to accept an application for a criminal offense, a violation of the law in the commission of actions (omissions) and making decisions.

In accordance with Part 2 of this article, "when considering a complaint, the court, without evaluating the existing evidence in the case, must establish that all the circumstances specified by the applicant in his complaint were checked and taken into account by the investigator, investigator, prosecutor. At the same time, the court must check whether there are material, legal and procedural grounds for making a decision on the case, without making a conclusion about the proven or not of guilt, the admissibility or inadmissibility of the collected evidence.

We did not write a complaint to the investigating Court to invalidate the evidence. The Defense party appealed to the court that the prosecutor did not take into account and did not check the actions of the case and the recommendations of the defense attorney in the complaint addressed to the prosecutor's office.

We believe that the above-mentioned violations of the law on the part of the prosecutor's Office were committed by the investigating court without consideration of the complaint, while holding it with his hands and seeing it with his eyes.

On the basis of Article 106 of the Criminal Code of the Republic of Kazakhstan, sent by the investigative court to the court, we consider the complaint on the actions of the prosecutor of Maktaaral District of the Turkestan region, and consider that the complaint should have been taken by the prosecutor's office in accordance with the procedure established by law in order to eliminate violations of the rule of law and bring to disciplinary responsibility employees of the prosecutor's office responsible for non-performance or improper performance of official duties.

In accordance with Article 107 of the Criminal Code of the Republic of Kazakhstan, a suspect, his lawyer, legal representative, victim, his legal representative, representative, a person whose rights and freedoms are directly affected by the act of the investigating judge has the right to appeal against the decision, sanction of the investigating judge on the detention of the suspect and other investigative actions.

Based on the above, in accordance with Article 107 of the Criminal Code of the Republic of Kazakhstan,

I ASK THE COURT:

* Cancellation of the decision of the investigative judge of the Maktaaral District Court of the Turkestan region E. Slambekov dated April 24, 2025, on the return of the appeal without consideration;

* Provide a full review and legal assessment of the complaint filed on the basis of Article 106 of the Criminal Code of the Republic of Kazakhstan on the actions of the prosecutor of Maktaaral District of Turkestan region.

With respect,

Defender                                                                  

            G. T. Sarzhanov 25.04.2025

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases