Complaint against the judgments of the Specialized Interdistrict Criminal Court and the decisions of the Judicial Board for Criminal Cases of the Almaty Regional Court, the decisions of the Supreme Court that have entered into force

 

Prosecutor General of the Republic of Kazakhstan

To Berik Nogaevich Asylov

14 Mangilik El Avenue, Astana, 010000.

+7 (7172) 71-28-68, +7 (7172) 30-15-30

from the defender of the convicted A.M. A.

M.S.T......

Almaty region, Talgar district, S. K., M. St., 39

Phone: 87479…

 

 

Claim

based on the verdict of the Specialized Interdistrict Criminal Court of Almaty dated January 11, 2024 and the decision of the Judicial Board for Criminal Cases of the Almaty Regional Court dated February 27, 2024, the decision of the Supreme Court dated June 10, 2024.  

 

 

Berik Nogaevich, the reason for my appeal to you is the injustice and lawlessness committed by the preliminary investigation authorities, judges of the Specialized Interdistrict Criminal Court of the Almaty region, judges of the Judicial Board for Criminal Cases of the Almaty region, judges of the Supreme Court of the Republic of Kazakhstan.

By the verdict of the Specialized Interdistrict Criminal Court of the Almaty region dated January 11, 2024, A.A.M. was found guilty of committing a crime under paragraph 1) of Part 3 of Article 122 of the Criminal Code of the Republic of Kazakhstan and sentenced to imprisonment for a period of 12 (twelve) years.

Disagreeing with the verdict, the defenders and the defendant filed an appeal with the Judicial Board for Criminal Cases of the Almaty Regional Court.

However, by the decision of the Judicial Board for Criminal Cases of the Almaty Regional Court dated February 27, 2024, the verdict of the Specialized Interdistrict Criminal Court of the Almaty region was left unchanged, the appeals were dismissed.

On June 10, 2024, the Judicial Board of the Supreme Court of the Republic of Kazakhstan considered the petition of the defenders for a cassation review of judicial acts. The court session scheduled for 10:00 p.m. began at 12:50 p.m., was conducted superficially, after hearing the arguments of the defenders for 5 minutes, constantly rushing them, the Judicial Board retired to the conference room to pronounce the judicial act and announced the decision to refuse to transfer the petition to the cassation court session. Thus, the arguments and demands of the defenders indicated in the petition were not properly verified.

I believe that these judicial acts are subject to change. I partially agree with A.A.M.'s accusation. I believe that A.A.M.'s actions are improperly and unlawfully qualified under paragraph 1) of Part 3 of art. 122 of the Criminal Code of the Republic of Kazakhstan.

As the incorrect application by the courts of the first, appellate and cassation instances of the criminal and criminal procedure legislation of the Republic of Kazakhstan led to an incorrect qualification of the actions of the convicted A.A. M. and his too severe punishment.  

Berik Nogaevich, I ask you to take into account that the convicted A.A.M. is my only child, he grew up dependent on me from the age of 1.5, I have no other support except my son, and A.A.M. committed these crimes at a minor age, which is the material and moral harm caused to the victim, fully compensated through mediation, the identity and age of the convicted A.A.M., the absence of serious consequences of the crime committed by him, forgiveness on the part of the victim and his legal representative.

           During the meeting of the Judicial Board for Criminal Cases of the Almaty Regional Court on February 27, 2024, the question of the judge of the board was answered by M. M. T. "Was there a sexual act on February 25, 2021?" The victim, M.A.E., replied, "Yes, I was.".  

To the second question from Judge Musabekova M.T., "Where have you been?" the victim M.A.E. replied: "At home." Further, the victim, A.E. Maratova, explained to the Judicial Board that "Adil and I (i.e., the convicted A.A.) were 3.5 years old, of which 3 years were in court, from 2019 to the first trial we went together, and we constantly had sexual intercourse.  We lived a sexual life."

The words uttered by the victim M. A. E. are recorded on the audio-video recording of the Court of Appeal session between 39 minutes 20 seconds and 40 minutes 10 seconds.

Thus, the conclusions of the courts and the prosecution that on February 25, 2021, the convicted A. A.M. had sexual relations with the victim M. A. have not been confirmed and are false.

In addition, at the court session of the Specialized Interdistrict Juvenile Court of the Almaty region, which took place on September 02, 2022, Ma.A. informed the court that the sexual act took place on January 11, 2021.

In particular, to the question of the public prosecutor: "What was the date of the second time?" the victim A.M. replied: "For the second time on Adil's birthday on January 11, 2021" (audio video of the court session 16 minutes 33 seconds – 16 minutes 40 seconds, file name "1996-22-00-1_38_02092022153006_mix.mp4").

Later in the same court session, when asked by the defense attorney, "for the second time on January 11, 2021?" The victim M.A. replied "Yes" (audio video of the court session 20 minutes 23 seconds – 20 minutes 30 seconds, file name "1996-22-00-1_38_02092022153006_mix. mp4").

And when Judge Nurmakhanbetov N.T. asked a clarifying question, "The second time, when did you celebrate your birthday?" Victim A.M. replied, "Yes. We went at 12 a.m., congratulated and after that it happened" (audio video of the court session 29 minutes 12 seconds – 29 minutes 32 seconds, file name "1996-22-00-1_38_02092022153006_mix.mp4").

From the above-mentioned testimony of the victim Ma.A. it follows that the sexual act occurred on the birthday of the convicted A. A.M., that is, on January 11, 2021, after 24.00 hours on January 10.

Despite this, the court of first instance found A. A.M. guilty of this episode, finding it proven that A. A.M. and M.A. had sexual relations on January 12, 2021.

The Judicial Board for Criminal Cases of the Almaty Regional Court, without accepting any attempts to resolve these contradictions, came to the false, unfounded conclusion that A.A.'s guilt had been proven in this episode.

Despite these arguments of the defense, the Court of Appeal dismissed the defenders' request for a judicial investigation. In this case, the Court of Appeal unlawfully supported the prosecution, violating the requirements specified in Article 23 of the Criminal Procedure 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 in accordance with objectivity and impartiality."

Thus, the accusation of sexual intercourse with Maratova A. on February 25, 2021, brought against A. A.M. is based on contradictory testimony of the victim Maratova A.E. and has not found its evidence.

Part 3 of Article 12 of the Criminal Code of the Republic of Kazakhstan states that "An ongoing criminal offense is not recognized as repeated, that is, a criminal offense consisting of a number of identical unlawful acts that are covered by a single intent and purpose and form one criminal offense as a whole."

These requirements of the Criminal Code of the Republic of Kazakhstan are clearly explained in paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2007 No. 11 "On the qualification of repeated and cumulative criminal offenses", which states:

"It is necessary to distinguish the recurrence of criminal offenses from ongoing criminal offenses. The commission by the same person of two or more criminal acts, similar to each other in the method of commission and object, characterized by a single intent and united by a single purpose, in material terms and the same consequences, does not constitute repetition. In such cases, everything done as a whole should be recognized as a single ongoing criminal offense and qualified under one article or part of the article of the Criminal Code, which provides for responsibility for the commission of this criminal offense."

 

The victim M. A. explained to the court in her answers that even when the trial was going on, she met with A. A., they had a relationship like a girl and a guy, they loved each other, constantly had sexual relations.  

Consequently, the actions of the convicted A. A. were an ongoing criminal offense, that is, involving one intent and one purpose and constituting one criminal offense as a whole. I believe that his actions are unjustified, incorrectly qualified on the basis of a crime committed "repeatedly."

Therefore, I believe that A.A.M.'s actions are subject to qualification under Part 1 of Article 122 of the Criminal Code of the Republic of Kazakhstan, that is, he should be found guilty of having committed an ongoing criminal offense as a minor – sexual intercourse with M.A.E., who had not reached the age of 16. And sexual intercourse on February 25, 2021, was not confirmed.

It is worth noting that during the investigation by the preliminary investigation authorities, the actions of convicted A. A.M. were limited to only three episodes. Thus, having identified the first episode of sexual intercourse on October 10, 2019, the pre-trial investigation authorities and the courts limited themselves to the place and nature of sexual intercourse, the onset and termination of menstruation by the victim and her pregnancy.

During the investigation of the second episode on January 11, 2021, it turned out that A.A. M. had a birthday, and how and where it was celebrated.

The third episode of sexual intercourse on February 25, 2021 was investigated as the last episode.

However, the authorities of the preliminary investigation and the court did not pay due attention to the sexual relations of the convicted A.A.M. and the victim A. Maratova between these three episodes.

In addition, the pre-trial investigation authorities did not pay due attention to the Victim's pregnancy and the abortion performed. In this case, the participants who performed the abortion were not questioned, an ambulance was not called and the embryo was not examined to confirm the paternity of A.A.M.

In addition, the pre-trial investigation authorities did not pay due attention to the Victim's pregnancy and the abortion performed. In this case, the participants who performed the abortion were not questioned, an ambulance was not called and the embryo was not examined to confirm the paternity of A.A.M.

According to Part 3 of Article 19 of the Criminal Procedure Code of the Republic of Kazakhstan, "Irremediable doubts about the guilt of a suspect, accused, or 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, the accused, and the defendant."

According to paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 4 "On certain issues of evaluating evidence in criminal cases", a court verdict cannot be recognized as legitimate if it is made only on the basis of the testimony of the defendant or victim, which has not been analyzed, compared for reliability and is not supported by other evidence: witness testimony, protocols of procedural actions, expert opinions, physical evidence and other documents.

However, the Specialized Interdistrict Criminal Court of the Almaty region during the consideration of the criminal case, the Judicial Board for Criminal Cases of the Almaty Regional Court during the consideration of appeals, as well as the Board of the Supreme Court of the Republic of Kazakhstan during the consideration of the petition of the defense did not apply the above-mentioned normative legal acts, thus grossly violated the requirements of the legislation.

In particular, the Specialized Interdistrict Criminal Court of the Almaty region concluded in the reasoning part of the verdict that on January 12, 2021, A.A.M. committed sexual intercourse with the victim Ma. A., who had not reached the age of 16.

In particular, the court's verdict states that "according to the court's conclusion, the answers given by the minor victim M. A.E. during the pre-trial investigation and at the court hearing are homogeneous, truthful and there is no reason not to trust them. The responses of the victim, the legal representative of the victim, combined with the totality of other documents collected in the case and evidence collected during the investigation, are consistent with each other and correspond to reality, according to the court's conclusion."

The court did not specify the name of any documents and the totality of evidence in question in the verdict, and did not make a reference in the verdict to the materials of the criminal case.

Thus, I believe that the court violated the requirements of the Criminal Procedure Legislation of the Republic of Kazakhstan.

Why does the court trust only the testimony of the victim and does not believe the testimony of A.A., who, having no intention of evading criminal responsibility, fully admits his guilt that the second sexual act occurred on 11.01.2021, and there was no sexual intercourse on 25.02.2021?

 Paragraph 3 of Article 388 of the CPC of the Republic of Kazakhstan states: "A sentence is recognized as justified if it is decided on the basis of a comprehensive and objective examination of the evidence presented to the court at a court hearing." However, the courts of the Almaty region violated these requirements.        

The court, relying only on the words of the victim M.A. given by her during the preliminary investigation, concluded that A.A.M. had sexual intercourse with her on January 12, 2021.  However, neither in the materials of the criminal case, nor in the testimony of the victim M.A. there is no evidence to establish the exact date and time of the crime.

The court's conclusion that the sexual act took place on January 12, 2021, is based only on assumptions that give rise to doubts and ambiguities.

The state prosecutor did not provide any evidence that the sexual act took place on January 12, 2021, and there is no such evidence in the materials of the criminal case. Thus, the court, having failed to comply with the requirements of Article 19 of the CPC of the Republic of Kazakhstan, came to an unjustified conclusion that A.A.'s guilt was proven. I believe that A.A.M. should be found guilty of having sexual intercourse with M.A., who was under the age of 16, on January 11, 2021, as a minor.

Since the convicted Ashimbayev A.M. was born on 11.01.2003 and according to 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 on their involvement in the commission of criminal offenses and other antisocial acts" a person is considered to have reached a certain age not on his birthday, and starting from the next day.

112 of the Criminal Procedure Code of the Republic of Kazakhstan, "Factual data must be declared inadmissible as evidence if they were obtained in violation of the requirements of this Code, which, by depriving or restricting the legally guaranteed rights of participants in the process or violating other rules of criminal procedure during the pre-trial investigation or trial of the case, affected or could affect the reliability of the factual data obtained. Factual data obtained in violation of the criminal procedure law is considered inadmissible as evidence and cannot be used as the basis of an accusation, as well as used in proving any circumstance specified in Article 113 of this Code."

However, despite the specified requirements of the CPC of the Republic of Kazakhstan, the court did not respond in any way to gross violations of the law by the pre-trial investigation body.

In particular, a photo of a girl and a guy was attached to the materials of the criminal case - volume No. 5, case sheet 4. Without determining the source of the photo, the date of the shooting, the appointment of a forensic examination, and without obtaining an expert opinion, the investigator illegally attached the above photo to the materials of the criminal case as material evidence.

Therefore, this photograph should be attributed to information obtained in violation of the requirements of the Criminal Procedure Law and, therefore, inadmissible as evidence.

In this regard, the defense filed a motion with the court to recognize this photo as inadmissible evidence. However, it was left without consideration by the court. Thus, the court grossly violated the requirements of Article 112 of the CPC of the Republic of Kazakhstan.

Witness T. I. being questioned before presenting photographs of the convicted A.A. and the victim M.A. to her for identification, witness T. I. replied that she did not know the people who came to the hotel.

Despite this, the investigating authority violated the requirements of the law and conducted T.I. identification of A. A. and M. A. from photographs.

In the protocol of A.A.'s identification from the photograph, witness T. I. pointed to the person depicted in photograph No. 2, and in the protocol it is stated that A.A.'s photograph "stands at number one." That is, the protocol contains opposite conclusions. Therefore, I believe that this protocol has no legal force and cannot be accepted as evidence in the case.

And in the protocol of M. A.'s identification, it is not even written from the photograph which number is assigned to her photograph (Volume No. 5, case sheets 22-26.)

In addition, when T.I. was presented with photographs of A. A.M. and M.A.E. for identification, the latter were in the building of the Talgar district police department.

Therefore, I believe that T. I. cannot be recognized as a witness in the case and the investigative actions against her are subject to recognition as illegal.

Since, according to part 2 of Article 299 of the CPC of the Republic of Kazakhstan, "Identificators are preliminarily interrogated about the circumstances under which they observed the relevant person or object, signs and features by which they can make identification," and also, as indicated in part 6 of Article 230 of the CPC of the Republic of Kazakhstan, "If it is impossible to present a person, identification may be carried out according to his a photograph presented simultaneously with photographs of other persons, as similar in appearance as possible to the identified one, in the number of at least three, as well as audio and video recordings." I believe that the court unlawfully failed to recognize a gross violation of procedural requirements on the part of the investigator, and the identification of A. A.M. from photographs, identification of M. A. from photographs, and the interrogation protocols of T.I. were unlawfully recognized as evidence.

The crime provided for in Part 1 of Article 122 of the Criminal Code of the Republic of Kazakhstan is classified as a crime of moderate severity. Therefore, I believe that A. A. is subject to exemption from criminal liability on the basis of the Law of the Republic of Kazakhstan dated 12/07/2021 "On amnesty in connection with the thirtieth anniversary of Independence of the Republic of Kazakhstan."

Since article 1 of the said Law states: "For the purposes of this Law, socially vulnerable persons include: persons who have not reached the age of eighteen at the time of the commission of a criminal offense," and article 2 states "1. They are exempt from criminal liability or basic punishment.: 3) socially vulnerable persons who have committed crimes of moderate severity, regardless of the existence of damage or civil action."

Dear Berik Nogaevich, in order to verify the reliability of the above arguments, I ask you to file a criminal case against A.A. M. and review the audio recordings of the court session of the Judicial Board for Criminal Cases of the Almaty Regional Court, held on February 27, 2024, and the audio recordings of the court session of the Specialized Interdistrict Juvenile Court of the Almaty region, held on September 02, 2022 (the audio-video recording is preserved in the materials of the criminal case). Since the court sessions were closed, in accordance with the requirements of the law, I was unable to obtain copies and cannot provide these audio recordings.

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 supreme supervision over the observance of legality, represents the interests of the State in court and carries out criminal prosecution on behalf of the State.

Dear Berik Nogaevich, in order to verify the reliability of the above arguments, I ask you to file a criminal case against A.A. M. and review the audio recordings of the court session of the Judicial Board for Criminal Cases of the Almaty Regional Court, held on February 27, 2024, and the audio recordings of the court session of the Specialized Interdistrict Juvenile Court of the Almaty region, held on September 02, 2022 (the audio-video recording is preserved in the materials of the criminal case). Since the court sessions were closed, in accordance with the requirements of the law, I was unable to obtain copies and cannot provide these audio recordings.

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 supreme supervision over the observance of legality, represents the interests of the State in court and carries out criminal prosecution on behalf of the State.

As stated in article 9 of the said constitutional law, the Prosecutor General: exercises supreme supervision over the observance of legality in the territory of the Republic of Kazakhstan, and also challenges judicial acts that have entered into force that contradict the Constitution of the Republic of Kazakhstan, the laws of the Republic of Kazakhstan, if there are grounds.

According to article 33 of the Constitutional Law of the Republic of Kazakhstan "On the Prosecutor's Office", the Prosecutor protests acts, decisions and actions (inaction) of state bodies, institutions, organizations, officials and other authorized persons that have entered into force and contradict the Constitution of the Republic of Kazakhstan, laws of the Republic of Kazakhstan, international treaties ratified by the Republic of Kazakhstan, and acts of the President of the Republic of Kazakhstan.

 

In connection with the above and based on the articles of the Constitutional Law of the Republic of Kazakhstan On the Prosecutor's Office,

I ask you to:

1. To adopt, in accordance with the procedure established by law, an act of prosecutorial response or prosecutorial protest acts in order to eliminate violations of legality upon violation of the norms of legislation in respect of the verdict of the Specialized Interdistrict Criminal Court of the Almaty region, the Decision of the Judicial Board for Criminal Cases of the Almaty Regional Court and the Decision of the Supreme Court of the Republic of Kazakhstan.;

2. To declare illegal and amend the verdict of the Specialized Interdistrict Criminal Court of the Almaty region dated 11.01.2024 in respect of convicted A. A.M.;

3. To declare illegal and annul the decision of the Judicial Board for Criminal Cases of the Almaty Regional Court dated 02/27/2024.;

4. To reclassify the actions of the convicted person .. M. 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. Release convicted A. A.M. from criminal liability by applying the provisions of the Law of the Republic of Kazakhstan dated December 7, 2021 No. 81-VII SAM "On Amnesty in connection with the thirtieth anniversary of Independence of the Republic of Kazakhstan."

         

         

Defender of T.M.S.

 

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