Complaint to the Prosecutor General of the Republic of Kazakhstan
To the Prosecutor General of the Republic of Kazakhstan
To B. Asylov
from the legal representative of the minor
the victim Rakhmash N.A. -
J.S.Y.
IIN …
Shymkent, A. Zh.a., 28
phone: 8701…
complaint.
On 31.03.2024, by a decision of the investigator of the SU DP of Shymkent, E.Zh. Isimov, approved by the deputy prosecutor of the Abai district of Shymkent, the pre-trial investigation in criminal case No. 227911031002902 was terminated under paragraph 8) of part 2 of Article 107 of the Criminal Code of the Republic of Kazakhstan, according to which R.N. was recognized as the victim.
Despite the gross violations of the norms of the Criminal Procedure Code of the Republic of Kazakhstan revealed by the victim's side, during familiarization with the materials of the criminal case, which were reported to the prosecutor of the Abai district of Shymkent and the prosecutor of Shymkent, investigator Isimov E.Zh., in violation of the requirements of art. 24 of the Criminal Procedure Code of the Republic of Kazakhstan, issued a decision to terminate the pre-trial investigation.
Representatives of the minor victim, R.N., appealed the decision to terminate the pre-trial investigation to the prosecutor of the Abai district of Shymkent, however, the decision of 04/11/2024 denied the complaint.
By a decision of the investigating judge of the Shymkent Specialized Investigative Court on April 22, 2024, the decision to terminate the pre-trial investigation was refused.
By a decree of the Shymkent City Court dated April 29, 2024, the complaint against the above-mentioned judicial act was dismissed.
I believe that the decisions of the investigator and the prosecutor, as well as the courts of the city of Shymkent, are deliberately illegal and grossly violate the requirements of the current criminal procedure legislation of the Republic of Kazakhstan.
The investigator based his decision on the conclusions of forensic medical examinations, which should be excluded from the materials of the criminal case as illegal, since they were obtained in gross violation of the requirements of Part 2 of Article 76 of the Criminal Procedure Code of the Republic of Kazakhstan, which state:
"In order to protect the rights and legitimate interests of victims who are minors or who do not speak the language of legal proceedings, or who are physically or mentally unable to independently defend their rights and legitimate interests, their legal representatives and representatives are required to participate in the process.
In such cases, a lawyer chosen by the victim or his legal representative is allowed to represent the victim. If the lawyer is not invited by the victim himself or his legal representative, the lawyer's participation is ensured by the body conducting the criminal process by issuing a decision binding on the professional organization of lawyers or its structural subdivision," as well as 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.
Minor R.N. was deprived of the right to provide qualified legal assistance, his legal rights and interests were not protected, and he was not provided with a representative in the person of a professional lawyer. Russian, which R.N. does not speak, was chosen as the language of the proceedings.
In the complaints in the criminal case, it was repeatedly stated that it was necessary to withdraw from the representative of R.N. – J.S.Y. the CT description protocol dated 09/05/2022, a DVD, CT photographs and appoint a new forensic medical examination. These investigative actions were not carried out, and the investigator did not conduct any investigative actions with the participation of a lawyer representing the victim.
Investigator Isimov E.Zh. limited himself only to questioning the doctor K.S. Absemetov, who testified that he had given a false description of the computer tomography image dated 09/05/2022 at the request of the victim's legal representative, R.N. – J.S.Y.
At the same time, investigator Isimov E.Zh. grossly violated the requirements of Part 3 of Article 285 of the Criminal Procedure Code of the Republic of Kazakhstan, which states "It is prohibited to interrogate an expert or specialist before giving them a conclusion."
Also, in support of his decision to terminate the pre-trial investigation, investigator Isimov E.Zh. in his decision refers to the interrogation of a specialist. Beketaeva K.B., who conducted the examination No. 9368/215-DOP dated 10/22/2022, who explained that during the examination "Rotational subluxation of the C1 vertebra was not detected."
However, in the very conclusion of the examination No. 9368/215-DOP dated 10/22/2022, where Beketaev K.B. was involved as a specialist, there is the following conclusion: that on the basis of the submitted medical documents there is a rotational subluxation of the 1st cervical vertebra according to the symptoms of a health disorder for a period of more than 3 weeks, it is estimated as an AVERAGE harm to health.
Also in the resolution, the investigator refers to the interrogation of expert Khozhamurat T.R., who explained that he had conducted an examination No. 1549/53-K, during the examination a "Rotational subluxation of the C1 vertebra" was established. However, the investigator again fails to indicate that, according to expert opinion No. 1549/53-K, which was given by expert Beketaev K.B., the minor victim, R.N., was found to have bodily injuries, which are assessed as MODERATE harm to health.
At the same time, the investigator did not withdraw the specified CT description protocol dated 09/05/2022, did not present it for identification to K.S. Absemetov.
Moreover, the testimony of K.S. Absemetov was not verified during the confrontation with J.S.Y.
An examination was not scheduled with the provision to the expert of a computer tomography from 05.09.2022, taken at the Shymkent City Children's Hospital.
Thus, investigator Isimov E.Zh. grossly ignored the provisions of Article 112 of the Criminal Procedure Code of the Republic of Kazakhstan.:
Factual data must be considered 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.
Moreover, on 03/15/2024, investigator E.Zh. Isimmov was petitioned to declare the following evidence inadmissible and excluded from the criminal case:
- Expert opinion No. 8581/2027 dated 09/13/2022
- expert opinion No. 8575/2661 dated 22.09.2022
- Expert opinion No. 9368/215-ADDENDUM dated 10/27/2022
- Expert opinion No. 1549/53-K dated 03/01/2023
- Expert opinion No. 53 dated 05/02/2023
- Expert opinion No. 73 dated 07/20/2023
- Expert opinion No. 14561/408 dated 12/26/2023
- resolution on the appointment of a forensic medical examination dated 09/04/2022
- resolution on the appointment of a forensic medical examination dated 09/03/2022
- resolution on the appointment of an additional forensic medical examination dated 05.10.2022
- the protocol of R.N.'s interrogation dated 11/12/2022.
- the protocol of the confrontation dated 12/19/2022 between R.N. and S.A.M.
- the protocol of the confrontation dated 03.01.2023 between R.N. and S.A.R.
- resolution on the appointment of a forensic psychological and psychiatric examination dated 02/23/2023
- the protocol of the confrontation dated 03/07/2023 between R. N. and S.D.M.
- the protocol of the confrontation dated 03/24/2023 between R.N. and S.A.
- resolution on the appointment of an additional commission forensic medical examination dated 04/03/2023
- resolution on the appointment of a second commission forensic medical examination dated 05/11/2023.
- resolution on the appointment of a second commission forensic medical examination dated 09/08/2023.
- resolution on the appointment of a second commission forensic medical examination dated 18.09.2023.
- resolution on the appointment of a second commission forensic medical examination dated 09/19/2023.
- the resolution on clarifying the additional commission of the forensic medical examination dated 11/30/2023, since the minor victim Rakhmash N. did not have a lawyer's representative at the time of the investigation, as required
This petition is completely legitimate and was subject to satisfaction.
However, investigator Isimov E.Zh. refused to satisfy it, and allowed the petition only on 03/26/2024, which is also a gross violation of the requirements of art. 99 of the Criminal Procedure Code of the Republic of Kazakhstan.
The prosecutor of the Abai district of Shymkent provides the same arguments as the investigator in support of his decision.
Moreover, perverting the text of the current Criminal Procedure Code of the Republic of Kazakhstan, the prosecutor in his decision concludes that the minor victim R.N. had a representative in the person of a lawyer.
According to Article 32 of the Law "On Advocacy and Legal Assistance", a lawyer is a citizen of the Republic of Kazakhstan who has a higher legal education, has received a license to practice law, is a member of the bar association and provides legal assistance on a professional basis within the framework of advocacy regulated by this Law.
There is no information in the case file that K. Shintekova, who was allowed to participate in the case as a representative, is a lawyer.
Thus, the decision of investigator Isimov E.Zh. and the decision of the prosecutor of the Abai district of Shymkent city violates the right of the victim R.N. to provide qualified legal assistance provided for in Articles 71, 76 of the Criminal Procedure Code of the Republic of Kazakhstan, as well as the right to compensation for damage caused by a crime provided for in Article 71 of the Criminal Procedure Code of the Republic of Kazakhstan, including expenses for a representative.
According to Article 106 of the Criminal Procedure Code of the Republic of Kazakhstan:
A person whose rights and freedoms are directly affected by the action (inaction) and decision of the prosecutor, investigative and inquiry bodies has the right to file a complaint with the court against the refusal to accept an application for a criminal offense, as well as violation of the law at the beginning of a pre-trial investigation, interruption of the investigation period, termination of a criminal case, forced placement in a medical organization for conducting a forensic medical examination, conducting a search and (or) seizure, performing other actions (inaction) and making decisions. When considering a complaint in accordance with this article, the court should not prejudge issues that, in accordance with this Code, may be the subject of judicial review when resolving a criminal case on its merits.
When considering a complaint, the court, without evaluating the evidence available in the case, must find out whether all the circumstances indicated by the applicant in the complaint have been verified and taken into account by the inquirer, investigator, prosecutor. At the same time, the court, without making conclusions about the proof or lack of proof of guilt, the admissibility or inadmissibility of the collected evidence, must verify the presence or absence of substantive and procedural grounds for making a decision on the case.
The limits of judicial review are limited to clarifying compliance with the law when performing actions (inaction) and making decisions specified in the first part of this article.
However, the courts of the city of Shymkent violated the requirements of Article 106 of the Criminal Procedure Code of the Republic of Kazakhstan, recognizing the interrogations of specialists as admissible evidence, and that examinations conducted without providing specialists and experts with Computer tomography dated 09/05/2024 could be the basis for the investigator's decision to terminate the pre-trial investigation.
This violated the requirements of Article 24 of the Criminal Procedure Code of the Republic of Kazakhstan, according to which the investigator is 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.
According to Article 4 of the Constitutional Law of the Republic of Kazakhstan "On the Prosecutor's Office":
"In order to protect a person, his life, rights and freedoms as the highest values of the state, and ensure legality in the territory of the Republic of Kazakhstan, the Prosecutor's Office performs the following tasks:
1) protection and restoration of violated human and civil rights and freedoms, legally protected interests of legal entities, society and the state;
2) identification and elimination of violations of the rule of law, the causes and conditions contributing to them, as well as their consequences."
According to Article 9 of the Constitutional Law of the Republic of Kazakhstan "On the Prosecutor's Office" The Prosecutor General, within the limits and forms established by law, exercises supreme supervision over the observance of legality in the territory of the Republic of Kazakhstan.
I ask you, Mr. Prosecutor General, to protect the rights of my minor son, which were grossly violated during the pre-trial investigation of the criminal case and led to the illegal termination of the pre-trial investigation and allowed the perpetrators to avoid criminal liability.
Based on the above, I ask:
- to consider my complaint and verify the legality of the decision of investigator E. Isimov on termination of the pre-trial investigation dated 03/31/2024, the decision of the prosecutor of the Abai district dated 04/11/2024, the decision of the Specialized Investigative Court dated April 22, 2024, the decision of the Shymkent City Court dated April 29, 2024.
Appendix: a copy of the investigator's decision dated 03/31/2024, a copy of the prosecutor's decision dated 04/11/2024, a copy of the decision of the Specialized Investigative Court of Shymkent dated 04/22/2024, a copy of the decision of the Court of Shymkent dated 04/29/2024, a copy of the decision on appointment as a legal representative, an extract from expert opinion No. 9368/215-ADD, an extract from expert opinion No. 1549/53-K.
Legal representative of J.S.Y.
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