Application form On a deliberate revision of the verdict of the Specialized Interdistrict Court on criminal cases that has entered into legal force and the resolution of the judicial board on criminal cases of Almaty region

The Republic Of Kazakhstan

The Supreme Court of the Republic of Kazakhstan

From the convicted lawyer-lawyer Galymzhan Turlybekovich Sarzhanov

"Law and Law Advocacy Office"

Almaty, Almaly district, Abflay Khan Ave., 79/71, office 304

Tel. 87085785758

Application form

On a deliberate revision of the sentence of the Specialized Interdistrict court for criminal cases of the Almaty region dated January 11, 2024, which entered into legal force, and the resolution of the judicial board for criminal cases of the Almaty region dated February 27, 2024

According to the verdict of the Specialized Interdistrict court for criminal cases of Almaty region dated January 11, 2024 A. A. M... Paragraph 1) of Part 3 of Article 122 of the Criminal Code of the Republic of Kazakhstan was found guilty and sentenced to imprisonment for a period of 12 (twelve) years by paragraph 1) of Part 3 of Article 122 with life deprivation of the right to hold pedagogical positions and positions related to working with minors, paragraphs 1,3) of Part 2 of Article 191 in the form of a restriction of liberty for a period of 3 (three) years.

In disagreement with this verdict, The Defenders and the defendant appealed to the judicial board for criminal cases of Almaty region.

However, the judicial collegium for criminal cases of Almaty region by the decision of February 27, 2024 left the verdict of the specialized Inter-District Court for criminal cases of Almaty region unchanged, and the appeals were dismissed.

We believe that these judicial acts are subject to change. I partially agree with the accusation of A. M. A. In particular, I consider it incorrect and unfair to classify the actions of A. M. A. under Paragraph 1) of Part 3 of Article 122 of the Criminal Code of the Republic of Kazakhstan.

This is due to the fact that the incorrect application of criminal and criminal procedure laws by the courts of first and appellate instance led to a misdirection of the actions of the convicted person and his too severe punishment. In this case, judicial acts that have entered into legal force in accordance with the requirements of Paragraph 3) of Part 2 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan are subject to revision in Cassation.

          It follows from the cassation judicial board that the convicted A.m. A. was the only child of his mother, from the age of 1.5 he grew up dependent only on his own mother, had no grounds except for the mother's child, A. A. committed these crimes at a minor age. We ask you to take into account that the material and spiritual damage to the victim has been fully compensated, the identity, youth, there are no serious consequences as a result of the crimes committed by him, the material and spiritual damage has been fully compensated, and the victim and his legal representative are pardoned.

So, on February 27, 2024, at a closed court session, the jury Judge M. T. Musabekova asked: "Was There sex on February 25, 2021?"the victim A. E. M. replied," Yes, that's it."

"Where was it?""to the second question asked, the victim A. E. M. replied:" He is at home." Then the victim A. E. M. A. said: "We Were A. (i.e. convicted B. A.) for 3.5 years, and then the court in 3 years, since 2019, we went to the first court, and we had sex all the time. We live a full life, " the jury commented.

The Victim Is A. E. Ma. the spoken words were recorded between 39 minutes 20 seconds and 40 minutes 10 seconds of the audio video recording of the court of Appeal.

           Consequently, on February 25, 2021, the convicted a.m. victim a.m. of the side of the accusation that she had sexual intercourse, and the conclusions of the courts did not find their evidence, are false.

In addition, at the court session of the Specialized Interdistrict court for juvenile affairs of the Almaty region, which took place on September 02, 2022, a.m. told the court that sexual intercourse occurred on January 11, 2021.  Specifically, the public prosecutor's question "What day was the second time?"to the question of the victim a.m." the second justice's birthday is January 11, 2021 "(16 minutes 33 seconds – 16 minutes 40 seconds of the audio video of the court session, file name"1996-22-00-1_38_02092022153006_mix.mp4"). Further, at this court session, when the defense lawyer asked "for the second time on January 11, 2021", the victim A. Maratova replied "Yes" (20 minutes 23 seconds – 20 minutes 30 seconds of the audio video of the court session, the file name is "1996-22-00 – 1_38_02092022153006_mix. mp4"). and Judge N. T. Nurmakhanbetov "for the second time did you celebrate?"when asked a clarifying question, the victim said a.m." Yes.  We went at 12 at night, congratulated and then it happened" (29 minutes 12 seconds-29 minutes 32 seconds of the audio video of the court session, file name "1996-22-00 – 1_38_02092022153006_mix.mp4").

We will have to discuss the testimony of the victim a.m. and conclude that the sexual intercourse occurred on the date of birth of the convicted a.m. A., That is, on January 11, 2021.

Despite this, the court of First Instance found a.m. A. guilty of this episode, claiming that A.M. A. and A. E. M. had found their validity in the charge of having sex on January 12, 2021.

However, the judicial board for criminal cases of the Almaty Regional Court, without taking any action to eliminate these contradictions, came to the false, unfounded conclusion that A.A.'s guilt finds its evidence in this episode.

Despite this, the court of Appeal dismissed the defense's petition for an investigation. In this case, the court of Appeal illegally supported the prosecution, violating the requirements set out in Article 23 of the Criminal Code of the Republic of Kazakhstan "the court is obliged to create the necessary conditions for the parties to fulfill their procedural duties and exercise the rights granted to them, while maintaining objectivity and impartiality".

Thus, on February 25, 2021, the accusation of A. M. A. A. A. A. of having sex was justified by the contradictory testimony of the victim A. E. M. and did not find its own evidence.

In accordance with Part 3 of Article 12 of the Criminal Code of the Republic of Kazakhstan, it is written that "an ongoing criminal offense, that is, a criminal offense involving one intent and one purpose and constituting as a whole one criminal offense consisting of a number of identical illegal actions, is not recognized as a criminal offense committed repeatedly."

Specific explanations are given on the requirements of this law in Article 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2007 No. 11 "on differentiation of multiple Commission and totality of criminal offenses".

           In particular: "it is necessary to distinguish the repeated Commission of criminal offenses from continuing criminal offenses. The commission by a particular person of two or more criminal acts that are mutually identical in the method and object of committing a criminal offense, characterized by a single intention and a combined common goal, material composition and uniformity of the consequences caused, does not constitute the repeated Commission of a criminal offense.

         In these cases, all the actions committed should be qualified under one article or part of the article of the Criminal Code providing for responsibility for the commission of this criminal offense, recognizing it as a whole continuing criminal offense."

"At the same time, paragraph 10 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 4 "" on some issues of qualification of crimes related to rape and other sexually violent acts ""reiterates that ""if the perpetrator commits several sexual acts against one person with a single intention, for a short period of time, this Act does not constitute a sign of repeated commission, it should be considered as a continuing crime""."

The victim a.m. in his answers indicated that even during the trial, A. A. had the same relationship as a girl and a guy, loved each other, and there was even talk of marriage.

Therefore, there is a criminal offense that continues in the actions of the convicted B. A., That is, a criminal offense that, combined with one intention and one purpose, constitutes a single criminal offense as a whole.   I consider his actions to be unjustified, misdirected under the sign of a crime committed "several times".

Thus, I would like to say that the actions of the convicted B. A. are not subject to qualification under the sign of a crime committed "repeatedly" and should be recognized as a chronic crime.

Therefore, I believe that the actions of A. M. A. He, being a minor, committed sexual intercourse on October 10, 2019 and on January 11, 2021 under the age of 16 A. E. M., was accused of a chronic crime and is subject to differentiation under Part 1 of Article 122 of the Criminal Code of the Republic of Kazakhstan, and on 25.02.2021 indicates that there was no sexual intercourse. "I don't know," he said, " but I don't know, I don't know, I don't know, I don't know, I don't know, I don't know.      

        According to Article 19 of the Criminal Code of the Republic of Kazakhstan: "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.

The conviction cannot be based on assumptions, and it must be supported by a sufficient set of admissible and clear evidence."

In accordance with the requirements of paragraph 12 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 4" on some issues of evaluating evidence in criminal cases " -it is stated that a court verdict cannot be recognized as legal if it is issued only on the basis of the testimony of the defendant and the victim, not analyzed, not compared with the truth and not confirmed by other evidence: testimony of witnesses, minutes of procedural actions, expert conclusions, physical evidence and other documents.

In accordance with the requirements of paragraph 16 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4" on the court verdict", the motivational part of the sentence reflects the testimony of the victim, witnesses, the content of the stored testimony, minutes of procedural actions, case materials studied at the court session. The reference to the minutes of procedural actions and other materials should indicate the volumes and pages of the criminal case

But the specialized Inter-District Court for criminal cases of Almaty region during the consideration of the criminal case and the judicial board for criminal cases of Almaty region during the consideration of Appeals did not apply in gross violation of the norms of the above-mentioned normative legal acts.

In particular, the specialized Inter-District Court for criminal cases of Almaty region in the motivational part of the sentence concluded that on January 12, 2021, the victim under the age of 16 a.m. committed sexual intercourse.

In particular, in the verdict of the court, "according to the conclusion of the court, the answers given by the victim A. E. M. during the pre-trial investigation and at the court session are unambiguous, truthful and have no reason to be offended by them. The victim's answers, in combination with the legal representative of the victim and other documents and evidence collected in the case, provided during the investigation, corresponded to the truth according to the court's conclusion."

The name of any other documents and the set of evidence were not specified by the court in the verdict and the court did not refer to them in the verdict to the materials of the criminal case.

Thus, it can be assumed that the court violated the requirements of the Criminal Procedure legislation of the Republic of Kazakhstan.

In this case, why does the court believe only the evidence of the victim and not believe the evidence that the second time sexual intercourse occurred on 11.01.2021, there was no sexual intercourse on 25.02.21?

        Paragraph 3 of Article 388 of the Criminal Code of the Republic of Kazakhstan States: "if the sentence is made on the basis of a comprehensive and objective study of the evidence presented to the court at the hearing, it is recognized as justified." However, these requirements of the law are violated by the courts of Almaty region.        

The court concluded that only the victim believed the words of A.M. And That a.m. A. committed sexual intercourse with her on January 12, 2021.  However, either in the materials of the criminal case, or in the testimony of the victim a.m., There is no evidence that makes it possible to determine the exact date and time of the crime.

The fact that sex occurred on January 12, 2021 is justified only by dubious assumptions.

The state prosecutor has not submitted to the court any evidence that sexual intercourse occurred at 12 sugar in 2021, there is no such evidence in the materials of the criminal case. Thus, the court did not obey the requirements of Article 19 of the Criminal Code of the Republic of Kazakhstan and formulated it unreasonably. According to this episode, I believe that A. M. A., being a minor, is subject to pleading guilty to committing sexual acts under the age of 16 on January 11, 2021.

Since the convicted B. M. A. was born on 11.01.2003, and Paragraph 2 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002 No. 6 "on judicial practice in cases of criminal offenses of minors and their involvement in the commission of criminal offenses and other antisocial actions" states that the age of a person is calculated not from the day of his birth, but from the next day.

In accordance with the requirements of Article 112 of the Criminal Code of the Republic of Kazakhstan – Factual data shall be recognized as inadmissible as evidence from an unknown source or a source that cannot be determined at a court session, if they are obtained in violation of the requirements of this code, contributing to the reliability of factual data obtained by pre-trial investigation or judicial consideration of the case by depriving the participants of the rights guaranteed by law or violating other rules of the criminal process, and shall not be

However, despite this, the court did not take any action due to the gross violation of the requirements of the law by the investigative body.

In particular, a photo in the image of a girl and a boy is attached to the materials of the criminal case - volume No. 5, page 4 of the case. without establishing the source of the photo, the date of its capture, without appointing a forensic gabitological examination, without obtaining an expert opinion, the investigator attached the above photo to the materials of the criminal case as illegal physical evidence.

Therefore, this photo must be recognized as data obtained in violation of Criminal Procedure Law and therefore inadmissible as evidence.

In this regard, on our part, a petition was submitted to the court to recognize this photo as an inadmissible fact as evidence. However, he is left unattended by the court. Thus, the court grossly violated the requirements of Article 112 of the Criminal Code of the Republic of Kazakhstan.

When I. Turdieva was asked as a witness before giving the photos of the convicted Person A. A. and the victim a.m. for recognition, she replied that she did not recognize the people who came to the hotel.

           Despite this, the investigative body violated the requirements of the law and transferred photos of A. A. and A. M. for display.

           In the protocol for identification by photo A. A., It is indicated that the witness I. T. recognized the person depicted in photo No. 2, and the photo of A. A. is written "standing in the first number". That is, the content is contradictory. Therefore, I believe that this protocol has no legal force, cannot be taken as evidence in the case.

          And in the protocol for the transfer of A.M.'s photo for presentation, it was not even written what number was assigned to his photo.  (Volume No. 5, case pages 22-26.)

In addition, A. M. A. and A. E. M. I. T. were in the building of the Talgar District Police Department on the day of the demonstration.

Therefore, we believe that I. Turdieva cannot be recognized as a witness and is subject to recognition of the investigative actions against her as illegal.

As specified in Part 2 of Article 299 of the Criminal Code of the Republic of Kazakhstan, it is stated that "persons who recognize must be interrogated in advance about the circumstances under which they observed the relevant person or thing, according to what signs and features they can recognize", and also, as specified in Part 6 of Article 230 of the Criminal Code of the Republic of Kazakhstan, "if it is not possible to show a person for recognition, the display for recognition may be carried out according to his photo, as well as on sound and video recording, which is displayed simultaneously with photographs of at least three other persons, as similar as possible to the person who must be recognized," without taking into account the rules, I believe that the court, not recognizing as a gross violation of the procedural requirements on the part of the investigator, illegally recognized the Protocols of interrogation as evidence of A.M. on recognition by photo, a.m. on recognition by photo, and I. T. as a witness.

The crimes considered in Part 1 of Article 122 of the Criminal Code of the Republic of Kazakhstan are considered as crimes of medium severity. Therefore, we believe that A. A. is subject to release from criminal liability on the basis of the law of the Republic of Kazakhstan dated 07.12.2021 "on amnesty in connection with the thirtieth anniversary of independence of the Republic of Kazakhstan".

        The reason is that in article 1 of the said law it is stated: "for the purposes of this Law, socially vulnerable persons include: persons who have not reached the age of eighteen at the time of committing a criminal offense", in article 2: "exemption from criminal liability or basic punishment: 1. from criminal liability or basic punishment: 3) compensation for damages or civil action socially vulnerable persons who have committed crimes of moderate severity, regardless of their presence, are released."

And Part 4 of Article 55 of the Criminal Code of the Republic of Kazakhstan States:" in the presence of special circumstances related to the goals and motives of the act, the role of the guilty person, his behavior during or after the commission of a criminal offense and other circumstances that significantly reduce the degree of danger of the act to society, the court may appoint a milder type of punishment than provided for in this article, or not apply an additional type of punishment provided for as a mandatory punishment."

Dear judicial board, in order to be convinced of the truth of the above arguments, during the preparation of the application for consideration, we ask you to listen to the audio video of the criminal case No. 1999-24-00-1A/46 with respect to The a.m., considered by the Almaty regional court, and the audio video of the court session of the Specialized Interdistrict court for juvenile affairs of the Almaty region, which took place on September 02, 2022 (the audio video is stored in the materials of the criminal case). Since the court session is closed, the Defense party cannot provide these audio videos in accordance with the requirements of the law.

In connection with the above, based on articles 484-488 of the Criminal Code of the Republic of Kazakhstan, I ask the Judicial Board:

1.to initiate Cassation proceedings in this criminal case, to revise judicial acts of Courts of Almaty region with the Direct (Offline) participation of us, that is, the defenders and the convicted person, with the transfer of them to the Cassation Court;          

          2. the decision of the Judicial Board of the Almaty Regional Court on criminal cases dated 27.02.2024 is recognized as unreasonable and violated;

3.the verdict of the Specialized Interdistrict court for criminal cases of Almaty region in respect of the convicted Deputy a.m. as of 11.01.2024 shall be recognized as unfair and amended;

         4.re-qualification of the actions of convicted persons from paragraph 1) of Part 3 of Article 122 of the Criminal Code of the Republic of Kazakhstan to Part 1 of this article;

         5.convicted M. M. A. on December 7, 2021, using the law of the Republic of Kazakhstan "on amnesty in connection with the thirtieth anniversary of independence of the Republic of Kazakhstan" No. 81-VII kr.

Defense lawyer Sarzhanov G. T.

                                                                                               03.05.2024

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