Complaint about the cancellation of the decision to terminate the criminal case
Shymkent City Prosecutor
State Advisor of Justice, 3rd Class
To G. Mukanov
minor N. R.
legal representative
S. J.
IIN .
phone: 8701.
Law and Law Law Firm
INN 201240021767
79 Abylai Khan Avenue, office 304, Almaty city
Phone: 87085785758, 87009785755
info@zakonpravo.kz/ www.zakonpravo.kz
Complaint about the cancellation of the decision to terminate the criminal case
On 04.01.2024, in connection with the failure to identify elements of a crime in a criminal case, in accordance with paragraph 2 of part 1 of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan, paragraph 8) of part 2 of Article 107 of the Criminal Code of the Republic of Kazakhstan, a resolution was issued to terminate the registered criminal case No. 227911031002902, the said resolution was approved on 09.01.2024 by the Prosecutor's office of the Abai district.
I completely disagree with the decision taken in the criminal case, I consider it illegal and unfounded.
Firstly, the qualification of the crime has not been properly established. In accordance with subparagraph 2 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 3 "On judicial practice in cases of hooliganism", "obscenity in public places, discriminatory treatment of individuals, pollution of residential buildings, public places and other similar violations of public order, expressing disrespect for others, violating public order and concerns of individuals in cases where actions involve the use of force or the threat of its use, as well as the destruction or damage of other people's property, they go beyond the scope of an administrative offense and constitute hooliganism, which is subject to criminal punishment."
In addition, the witnesses entitled to defense, S. A. M., S. D. M. testified that N.R. had not previously known. Witness D. M. S. N. "N. R. and mom talked about garbage," it is fully proven that N. R. warned A. M. S. A., D. M. S. E. about the pollution of public land by garbage. Not obeying the lawful demand of N. R., A.m. S., D. M. S. attacked N. R. with the intention of committing hooliganism.
Thus, the registered criminal case No. 227911031002902 is subject to qualification under paragraph 1) of part 2 of Article 293, paragraph 2) of the Criminal Code of the Republic of Kazakhstan - "Hooliganism, i.e. violation of public order with particular brutality using violence against citizens, a group of persons, an objection to another person suppressing a violation of public order with a demonstration."
Secondly, the conclusion of the additional commission forensic medical examination No. 14561/408, conducted in Astana on December 26, 2023, in which the injuries inflicted on N. R. are indicated in a "light" form, do not correspond to the actual circumstances of the case. The fact is that during the additional commission forensic medical examination, the experts were not given a protocol describing computed tomography (examination protocol) by the CT doctor of Shymkent City Children's Hospital K. S. Absemetov. Dated 05.09.2022, therefore, the conclusion of the forensic medical examination may be considered incomplete.
The specified description protocol was drawn up on the third day after the date of the crime, when N. R. was being treated, i.e. the crime was carried out on 09/02/2022, and the CT scan was carried out on 09/05/2022. Currently, this description protocol and the associated DVD and image are stored in my house.
On January 8, 2024, I myself was found in the Shymkent Children's City Hospital.
Thus, officials of the pre-trial investigation body have shown inaction and improper performance of their duties for 1.5 years. In this regard, I consider it necessary to bring the perpetrators to disciplinary responsibility and severely punish them.
In accordance with article 24 of the Criminal Procedure Code of the Republic of Kazakhstan, "the court, the prosecutor, the investigator, the inquirer are obliged to take all measures provided by law for a comprehensive, complete and objective examination of the circumstances necessary and sufficient for the proper resolution of the case.
The criminal prosecution authorities determine the factual data on the basis of which the circumstances relevant to the case are determined.
Circumstances must be established in the case, both exposing and justifying the suspect, the accused, the defendant, as well as mitigating and aggravating their responsibility and punishment."
In accordance with part 2 of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan, "the proceedings in the case are terminated on the grounds provided for in paragraphs 1) and 2) of part one of this article, both when proving the absence of an event of a criminal offense or the composition of a criminal offense, and if their presence is not proven, if all possibilities are used to collect additional evidence.".
Based on the above, the pre-trial investigation authorities in the criminal case did not collect all the evidence, so the perpetrators avoided undue criminal liability.
Thus, paragraph 8 of part 2 of Article 107 of the Criminal Code of the Russian Federation adopted a resolution on the termination of the criminal case No. 227911031002902.
Based on the above, based on Article 291 of the Criminal Procedure Code of the Republic of Kazakhstan, from you:
- To cancel the resolution on the termination of the registered criminal case No. 227911031002902;
- The legal representative of N. R.S. Y. zh. the CT doctor of Shymkent city Children's Hospital K. S. A. 05.09.2022 to take pictures of the description protocol, CT DVD, CT image;
- To study the protocol of the characteristics of K. S. Absemetov From 05.09.2022 of the doctor of the Shymkent City Children's Hospital, CT DVD, CT image and attach them to the criminal case No. 227911031002902 as physical evidence;
- Interrogation of K. S. Absemetov, CT doctor at Shymkent City Children's Hospital.;
- Appoint a second forensic medical examination to the experts in compliance with the requirements of Article 287 of the Criminal Procedure Code of the Republic of Kazakhstan in the criminal case No. 227911031002902 of the CT doctor of Shymkent City Children's Hospital K. S. Absemetov dated 05.09.2022.;
-Redefinition of the criminal case under paragraph 8) of part 2 of Article 107, paragraph 1) of part 2 of Article 293, paragraph 2) of the Criminal Code of the Republic of Kazakhstan;
- I ask you to bring Shymkent traffic police officials to disciplinary responsibility.
Appendix: a copy of the original protocol of the description of the CT doctor of Shymkent City Children's Hospital K. S. Absemetov dated 05.09.2022.
Dated 01/13/2024 S.G. №№a
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