Complaint about the cancellation of the decision to terminate the criminal case
To the Specialized Investigative Court of Shymkent city
from the legal representative of the minor N.R. -
J.S.Y.
IIN .
Shymkent, mkr. s.-1,
Zh. street, 28
phone: 8701.
Representatives: Law and Law Law Firm
BIN 201240021767
Lawyer Sarzhanov Galymzhan Turlybekovich
79 Abylai Khan Ave., office 304, Almaty
Phone: 87085785758
info@zakonpravo.kz/ www.zakonpravo.kz
Lawyer Nigmetov Sabit Davletovich
IIN 820125350700
79 Abylai Khan Ave. , office 304, Almaty
Phone: 87009785755
Complaint about the cancellation of the decision to terminate the criminal case
04.01.2024. investigator SU DP Shymkent Aripbaev N.M. issued a resolution to terminate the pre-trial investigation No. 227911031002902, due to the lack of corpus delicti in the 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, the said resolution was approved on 09.01.2024 by the Prosecutor's office of the Abai district the area.
I completely disagree with the decision taken in the criminal case, I consider it illegal and unfounded.
Firstly, the qualification of the crime has been incorrectly established. In accordance with subparagraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 3 "On judicial practice in cases of hooliganism" - "In cases where obscenity in public places, insulting harassment of individuals, desecration of residential premises, common areas and other similar actions expressing disrespect for others, violating public order and tranquility of individuals, were accompanied by the use of violence or threat of its use, as well as the destruction or damage of other people's property, such actions They go beyond the scope of an administrative offense and form part of a criminally punishable hooliganism."
In addition, the witnesses entitled to defend S.A.M. and S.D. M. had previously testified that they had not previously known R.N. However, the testimony of the witness entitled to defend S.D. M. that "N.R. and mom were talking about garbage" confirms the testimony of N. Rakhmash that Rakhmash N. had previously made remarks to S.A.M. and S.D. M. about their contamination of a public place with garbage. Not obeying the lawful demands of N.R., S.A. M., S.D.M. attacked N.R. with the intention of committing hooliganism.
Thus, criminal case No. 227911031002902 is also subject to qualification under paragraphs 1), 2) of part 2 of Article 293 of the Criminal Code of the Republic of Kazakhstan – "Hooliganism, i.e. a particularly audacious violation of public order, expressing obvious disrespect for society, accompanied by the use of violence against citizens, associated with resistance to a person suppressing a violation of public order."
Secondly, during the pre-trial investigation, 5 forensic medical examinations were conducted, according to which the damage caused to the health of my minor son, Rakhmash N., was identified as "mild" and "moderate". However, the investigator took into account only the conclusions of the additional commission forensic medical examination conducted in Astana No. 14561/408 dated 12/26/2023, according to which a "slight" harm to the health of Rakhmash N. was established.
I believe that the conclusion of the additional commission of forensic medical examination No. 14561/408 dated 12/26/2023 does not correspond to the factual circumstances of the case. Since, during the additional commission forensic medical examination, the experts were not provided with the protocol of the description of computed tomography (examination protocol) of the CT doctor of Shymkent City Children's Hospital K. S. Absemetov dated 09/05/2022, the CT DVD and CT photographs, therefore, the conclusion of the forensic medical examination No. 14561/408 dated 12/26/2023 is subject to recognition as incomplete. Also, according to none of the appointed examinations, the experts were not provided with the specified computer tomography materials dated 09/05/2022.
The specified protocol describing Computer tomography dated 09/05/2022 was drawn up on the third day after the date of the crime, when R.N. was undergoing inpatient treatment in the hospital, that is, the crime was committed on 09/02/2022, and the computed tomography was done on 09/05/2022. Currently, this description protocol and the associated DVD and image are stored in my house. From the description of computer tomography, it follows that R.N. A "rotational subluxation of the C1 vertebra to the left" has been identified, which is an average injury to health at the time of injury and is directly related to the violent actions of the perpetrators, which I indicated in my statement about the crime. Moreover, the computer tomography was performed on 09/05/2022 only due to the fact that R.N. was admitted to the hospital on 09/03/2022, on a day off – Saturday, 09/04/2022 it was Sunday, also a day off. It was only on 05.09.2022 that the computer tomography room began its work and Rakhmash N. conducted a CT scan.
On January 8, 2024, I personally found the specified CT description protocol and DVD in the Shymkent Children's City Hospital.
Thus, due to the negligence of the officials of the pre-trial investigation body, an illegal procedural decision was taken to terminate the criminal case.
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 investigation of the circumstances necessary and sufficient for the proper resolution of the case.
The criminal prosecution authorities identify factual data on the basis of which circumstances relevant to the case are established.
The circumstances of the case are subject to clarification, both incriminating 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 if the absence of a criminal offense event or the composition of a criminal offense is proven, and if their presence is not proven, if all possibilities for collecting additional evidence have been exhausted.".
Based on the above, the pre-trial investigation authorities in the criminal case were inactive, all the evidence was not collected, as the experts were not provided with CT scan data from 05.09.2022, and therefore the perpetrators unreasonably avoided criminal liability.
I mentioned the above arguments in my complaints to the prosecutor's office of the Abai district and the city of Shymkent about the cancellation of the decision of investigator Aripbaev N.M. to terminate the criminal case, but I was refused. I also consider the decisions of the prosecutor of the Abai district of Shymkent and the Deputy prosecutor of Shymkent to be illegal and subject to cancellation.
Based on the above, guided by Article 106 of the Criminal Procedure Code of the Republic of Kazakhstan, I request:
- To recognize as illegal the inaction of the investigator of the SU DP Shymkent Aripbaev N.M., expressed in the failure to provide the experts with the materials of the computer tomography of R. N. dated 05.09.2022.;
- To declare illegal and cancel the resolution of the investigator of the SU DP Shymkent Aripbaev N.M. dated 04.01.2024 on the termination of the pre-trial investigation No. 227911031002902;
- To declare illegal and cancel the decision of the prosecutor of the Abai district of Shymkent, Berikov R., dated 31.01.2024, on the refusal to satisfy the complaint;
- To declare illegal and cancel the decision of the Deputy Prosecutor of Shymkent, Marat E., dated 02/19/2024, on the refusal to satisfy the complaint;
- Oblige the pre-trial investigation body to seize from the legal representative of R.N.Zh.S.S. the protocol of the description of the CT doctor of Shymkent City Children's Hospital K.S. Absemetov dated 05.09.2022, CT DVD, CT photographs;
- Oblige the pre-trial investigation body to examine the protocol of the description of the CT doctor of the Shymkent City Children's Hospital K. S. Absemetov dated 05.09.2022, the CT DVD, CT photographs and attach them to the criminal case No. 227911031002902 as material evidence;
- Oblige the pre-trial investigation body to question K. S. Absemetov, a CT doctor at Shymkent City Children's Hospital.;
- Oblige the pre-trial investigation body to appoint a second forensic medical examination in criminal case No. 227911031002902 with the provision to experts of the protocol of the description of the CT doctor of Shymkent City Children's Hospital K. S. Absemetov dated 05.09.2022, a CT DVD, CT photographs, in compliance with the requirements of art. 287 of the CPC RK;
- To oblige the pre-trial investigation body to issue a new resolution on the qualification of a crime under paragraph 8) of part 2 of Article 107, paragraph 1), paragraph 2) of part 2 of Article 293 of the Criminal Code of the Republic of Kazakhstan;
Appendix: a copy of the original protocol of the description of the CT doctor of Shymkent city Children's Hospital K.S. Absemetov dated 09/05/2022, a copy of the resolution of the investigator of the SU DP Shymkent Aripbaev N.M. dated 01/04/2024, a copy of the resolution of the prosecutor of the Abai district of Shymkent Berikov R. dated 01/31/2024, a copy of the resolution of the deputy prosecutor of Shymkent Marat E. dated 02/19/2024. on the refusal to satisfy the complaint, a copy of expert opinion No. 14561/408 dated 12/26/2023, a copy of expert opinion No. 8575/2661 dated 09/22/2022, a copy of expert opinion No. 9368/215-ADD dated 10/27/2022, a copy of expert opinion No. 1549/53-K dated 03/01/2023, a copy of expert opinion No. 73 dated 07/20/2023, a copy of the power of attorney for Sarzhanov's representatives G.T., Nigmetova S.D., notification of the representation of Sarzhanov G.T., notification of the representation of Nigmetov S.D., a copy of the certificate of the lawyer of Sarzhanov G.T., a copy of the certificate of the lawyer of Nigmetov S.D., a copy of the certificate of state registration of the legal entity.
02/19/2024 J.S.Y.
Representative
Law and Law Law Firm
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