Complaint to the City Court of Appeal against the decision of the judge of the Specialized Investigative Court
Shymkent City Court
from the legal representative of the minor N.R. -
J. S.Y.
IIN .
Shymkent, md., 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
on the decision of the judge of the Specialized Investigative Court of Shymkent, K.A. Anarbaev (case No. 5295-24-00-2-5m/84)
On February 29, 2024, the judge of the Specialized Investigative Court of Shymkent, K.A. Anarbayev, considered our complaint that:
- 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 computer tomography materials Rakhmash 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;
- 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.
Based on the results of the review of the complaint, the judge issued a decision to dismiss our complaint.
We consider this resolution to be completely illegal and unjustified on the following grounds.
According to Part 106 of the Criminal Procedure Code of the Republic of Kazakhstan, the complaint is considered by the investigating judge alone without holding a court session for three days. If it is necessary to investigate the circumstances relevant to making a lawful and reasoned decision, the investigating judge examines the complaint within ten days in a closed court session with the participation of the relevant persons and the prosecutor, whose non-appearance does not interfere with the consideration of the complaint. By order of the investigating judge, the court session may be held via video link. A protocol is kept during the court session. If necessary, the investigating judge has the right to request additional materials, summon and interview the relevant persons. Officials whose actions (inaction) and decisions are being appealed, upon request of the court, are required to submit to the court within three days the materials that served as the basis for such actions (inaction) and decisions.
Judge Anarbayev K.A. writes in his ruling that he studied the criminal case, but held the meeting alone. However, it seems to us that the judge did not study the criminal case. Since if the judge had carefully studied the materials of the criminal case, he would have established that the basis for the experts' decision was that the minor R.N. there are no signs of moderate harm to health, the conclusion of the primary examination dated 09/22/2022 was adopted, according to which the experts were provided with a copy of the investigator's decision on the appointment of the examination and R.N. himself, the investigator did not provide other documents and materials that could help the experts to make a proper conclusion to the experts.
Moreover, if the judge had really carefully studied the cases and read our complaint, he would have drawn attention to the fact that R.N. is a minor and his rights were grossly violated by both the pre–trial investigation authorities and the supervising prosecutor in the case, since from the moment R.N. was recognized as a victim, he was deprived of the right for qualified legal assistance.
According to the current paragraph 7 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 24, 1992 No. 2 "On the practice of applying legislation regulating the rights and obligations of persons who have suffered from criminal offenses":
If the victim is a minor or a person who does not speak the language of legal proceedings or who, due to his physical or mental condition, is unable to independently defend his rights and legitimate interests, the participation of a legal representative and representative is mandatory. In this case, only a lawyer chosen by the victim himself or his legal representative is allowed as a representative. The concept of a legal representative is given in paragraph 13) of Article 7 of the CPC.
In case of violation of this requirement, the verdict or the court decision are subject to cancellation in any case.
R.N., besides being a minor, does not speak the language of the proceedings, which were conducted in Russian.
However, Judge K.A. Anarbayev, having shown complete disregard for these requirements of the Criminal Procedure Code of the Republic of Kazakhstan and the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan, blamed the legally uneducated mother of the minor victim, R.N., for not filing a petition in the criminal case!
Based on the above, I ask:
- the decision of the judge of the Specialized Investigative Court of Shymkent, K.A. Anarbaev, to declare illegal and cancel;
- 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 computer tomography materials PH. 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;
- to issue a private resolution to the Minister of Internal Affairs of the Republic of Kazakhstan on the facts of gross violations of the law by officers of the Shymkent City Police Department during the pre-trial investigation in criminal case No. 227911031002902;
- to issue a private resolution to the Prosecutor General of the Republic of Kazakhstan on the fact of gross violation of the law by the staff of the Shymkent city Prosecutor's Office while overseeing the legality of the pre-trial investigation in criminal case No. 227911031002902;
- to inform the chairman of the Shymkent City Court about the fact of a gross violation of the requirements of the Criminal Procedure Code of the Republic of Kazakhstan by Judge Anarbayev K.A. with transfer to the disciplinary commission of judges.
03.03.2024 J.S.Y.
Lawyer Sarzhanov G.T.
Lawyer Nigmetov S.D.
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