Appeal to the Judicial Board of criminal cases to cancel the decision on the sanction of a preventive measure in the form of custody
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: MCI
Yin
Turkestan Region, District m, Village N E, zh Street, house 12.
Claim
(Based on Article 107 of the Criminal Code of the Republic of Kazakhstan)
On March 07, 2025, with the participation of the investigating judge of the Maktaaral District Court of the Turkestan region E. Slambekov, the prosecutor of the maktaaral District Prosecutor's office E. Sarzhan, the suspect Aekanatbaevich, the defense lawyer G. Sarzhanov, at an open court session, the decision was made using audio and video recording:
To satisfy the request of the investigator of the maktaaral District Police Department D. Zhaksylyk to sanction the application of a preventive measure in the form of detention in relation to the suspect Esen Kanatbaevich aka.
As a preventive measure, Esen Kanatbaevich aka, suspected of committing a criminal offense provided for by Part 2 of Article 174 of the Criminal Code of the Republic of Kazakhstan, to sanction the detention of security for a period of 2 (two) months until 23 hours 05 minutes on April 28, 2025.
The term of detention should be calculated from 23 hours 05 minutes on February 28, 2025, when the actual time of detention of the name of Esen Kanatbaevich.
Dear court, we do not agree with the decision of this court, because there are no grounds for arrest of the suspect Aekanatbaevich. the suspect is A E. K., has not been previously convicted, has not been prosecuted, has a permanent place of residence, and is identified.
The suspect, A E. K., does not intend to hide from the prosecution authorities or the court, or to interfere with an objective investigation of the case or its trial in court.
In addition, the suspect A. K., The only breadwinner of his family, a dikhanist, married, legally married spouse: Ospanova Dinara Nurzhanovna, who has 5 (five) minor children from a common marriage (engaged in child support at home):
1. AA Asiya Yesenovna born on 15.12.2013
2. AA Aisha Yesenovna born 26.05.2015
3. K. Ali Esenovich born 10.10.2017
4. K. Omar Yessenovich born on 24.11.2020
5. K. Abdullah Yessenovich born on 23.08.2022
We also believe that the actions of the suspect E. K. are not properly classified, and his actions do not contain the composition of the criminal offense provided for by Part 2 of Article 174 of the Criminal Code of the Republic of Kazakhstan.
If we carefully study the matreials of the criminal case, the group of people named E. K., intentional actions aimed at inciting religious discord through preliminary collusion, insulting the National Honor and dignity or religious feelings of citizens, as well as attempts to promote their exclusivity, superiority or incompleteness on the basis of their attitude to religion, gender-group, National, Tribal or racial affiliation of citizens are not identified.
E. K. did not use public or mass media, telecommunications networks and online platforms in his actions, nor did he commit any actions in the preparation or dissemination of literature or other information carriers promoting religious discord, and the investigation did not identify such actions.
The court provided the investigation with the following information in the inquiry part of its decision: “the suspect E. A. from 01.07.2024 to 01.01.2025 was born on 23.06.1991 by his acquaintance, a resident of the House No. 11b, Kazakhstan Street, Atakent Village, Maktaaral district. Together with Baglan Yerzhanovich Musabekov, 40 people in the group "Atakent Brothers" on the social network "watsap" deliberately committed the crime of inciting religious discord by repeatedly distributing sermons of "Dilmurat Abu-Muhammad" Mahamatov Dilmurat and "Nazratullah Abu-Mariam"prohibited by law to promote the religion of negative orientation. "what's the matter?"
However, the court of inquiry, unfortunately, did not pay attention to the arguments of the defender, without determining which religion of negative orientation is kanadai and which current religion, what actions the suspect caused religious discord with his actions, what kind of sermons of Dilmurat Abu-Muhammad and Nazratullah Abu-Mariam were prohibited by the NPA of the Republic of Kazakhstan or judicial acts.
In accordance with Article 77 of the Constitution of the Republic of Kazakhstan and Article 19 of the Criminal Code of the Republic of Kazakhstan, everyone is considered innocent until his guilt in committing a criminal offense is proven in accordance with the procedure provided for by this code and established by a court verdict that has entered into legal force. No one is obliged to prove their innocence.
Unresolved doubts about the guilt of the suspect, accused, defendant are interpreted in their favor. Doubts arising in the application of criminal and criminal procedure laws must also be resolved in favor of the suspect, accused, defendant.
Judicial acts cannot be based on assumptions and must be supported by a sufficient set of admissible and clear evidence.
The object of the crime under consideration is public relations that ensure international peace and the safe existence of religious groups, the conditions of honor and dignity of citizens, their constitutional rights and freedoms.
The objective side of this crime is the incitement of religious discord, the protection of the religious feelings of citizens, the promotion of the difference, superiority or inferiority of citizens ' views on religion.
Various actions that arise as a result of the formation of a feeling of hostility, hatred or hatred towards representatives of a particular race, nation, ethnic or religious group constitute a corpus delicti in the presence of: propaganda of the uniqueness or superiority of one human group over others, discrimination against representatives of a particular race.
Insulting religious feelings means disrespect for religious dogmas and canons recognized by a citizen or the personal qualities of a citizen associated with his religious affiliation, gross mockery, ridicule of honorary objects, signs and emblems of worldview symbols (slander, discrimination, humiliation, mockery).
The subjective side is characterized by direct intentional intent: the guilty person understands that he commits actions aimed at inciting religious hatred or Discord, insulting the National Honor and dignity or religious feelings of citizens, as well as promoting exclusivity, superiority or inferiority in public or using the media or telecommunications networks, as well as through the preparation or distribution of literature or other media of this information.
Incitement to social, National, Tribal, racial, lineage-group or religious discord is recognized as committed by a group of people if an association in which two or more performers conspired is involved in its creation. A group of persons is recognized as conspiring if these actions are attended by persons who previously agreed on their joint commission.
– However, in the material of the criminal case, there is no evidence and information about the alleged conspiracy of the suspect with a group of damdar, the preservation of videos and their distribution, actions aimed at inciting religious hatred or Discord, insulting the National Honor and dignity or religious feelings of citizens.
Based on this, the preliminary investigation body appointed a comprehensive judicial psychological, philological and judicial religious examination in the criminal case No. 255143031000006 by the resolution of October 02, 2024.
07.02.2025 by studying the conclusion of expert No. 7, you can clarify the following doubts in the criminal case:
Investigator's question to an expert philologist:
– Are there any appeals in the materials submitted for the study to violate the Constitution of the Republic of Kazakhstan, to seize power by force or to hold power by force, to change the constitutional order of the Republic of Kazakhstan by force?
Answer: there are no calls to violate the Constitution, to seize power by force or to hold power by force, to change the constitutional order of the Republic of Kazakhstan by force.
Investigator's question to an expert religious scholar:
- What religious movement do the ideas in the texts of the studied materials belong to?
Answer: belongs to the Salafist direction of the Sunni current of Islam.
– Do the texts of the materials presented for the study contain ideas of religious enmity between one religious group against another?
Answer: in a video clip that the suspect copied a link from the public YouTube social network and sent it to the group on the WhatsApp network, the expert concluded that the religious group has no ideas of religious hatred against another.
– In the proposed texts, there are ideas of jihad, self-sacrifice, war and violence according to religious truckers?
Answer: in the texts of the object proposed for study in this way, there are no ideas of jihad, self-sacrifice, war and violence on religious grounds.
– Are there any ideas in the studied texts that promote the establishment of a theocratic device on the territory of the Republic of Kazakhstan?
Answer: the texts of the objects submitted for study do not contain ideas that promote the establishment of theocratic construction on the territory of the Republic of Kazakhstan.
Investigator's question to an expert political scientist:
– Do the materials submitted for the study contain signs of inciting social, National, Tribal, racial, family-group or religious hatred, insulting the National Honor and dignity or religious feelings of citizens, as well as their discrimination, promotion of superiority or diminution on the basis of religious views, Family-Group, National, Tribal or racial affiliation of citizens?
Answer: in the video clip of the suspect's name, which he copied from an open YouTube social network Link and sent to the group on the WhatsApp network, the expert concluded that there were no signs of discrimination, promotion of superiority or understatement on the basis of gender-group, National, Tribal or racial affiliation.
– Are there signs of propaganda of terrorism or a call to commit an act of terrorism?
Answer: there are no signs of propaganda of terrorism or calls to commit an act of terrorism.
– Are there any signs of organization and participation in the activities of any organization in the materials submitted for the study?
Answer: the text does not contain signs of organization and participation in the activities of any organization.
- Are there any signs or information indicating the formation, training or arming of persons for the purpose of organizing a terrorist or extremist organization?
Answer: there is no information on the signs that refer to the formation, training or arming of persons for the purpose of organizing a terrorist or extremist organization.
- Are there signs of seduction or training of people for the purpose of organizing terrorist or extremist activities?
Answer: there are no signs of seduction or training of people for the purpose of organizing terrorist or extremist activities.
The suspect did not personally record the above-mentioned roller, he copied the link from the open YouTube social network and sent it to the group on the WhatsApp network.
Given the above arguments, there was an abuse of trust on the part of the investigative court, according to the evidence submitted to the investigative court, the suspect E. K. name has grounds for release, the suspicion of committing a criminal offense has not been confirmed, there are no grounds for applying a preventive measure in the form of arrest.
In accordance with Part 2 of Article 138 of the Criminal Procedure Code of the Republic of Kazakhstan (circumstances taken into account when choosing a preventive measure and establishing additional restrictions) on the grounds specified in Article 136 of the Code of Criminal Procedure, the suspect does not intend to hide from the criminal prosecution authorities or the court, to prevent an objective investigation of the case, its consideration in court,
Under Part 1-1 of Article 136 of the criminal Criminal Procedure Code of the Republic of Kazakhstan. When choosing a preventive measure for a suspect, we ask you to consider the possibility of applying a preventive measure not related to isolation from society, taking into account the above-mentioned circumstances, if possible.
There are no sufficient grounds to believe that the suspect, hiding from the criminal prosecution authorities or the court, interferes with an objective investigation or discussion of the case in court, or continues to engage in criminal activity.
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 investigating judge of the Maktaaral District Court of Turkestan region of March 07, 2025 on the sanction of a preventive measure in the form of "detention under guard" in relation to the suspect E. K. Slambekov;
* Release the suspect E. K. from the pre-trial detention center and apply a preventive measure against him that is not related to the arrest.
With respect,
Defender G. T. Sarzhanov
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
