Petition for cassation review
Republic of Kazakhstan
The Criminal Court of the Supreme Court
judicial board for cases
Convicted A. M. A. defender-lawyer Galymzhan
From Sarzhanov Turlybekovich
Law and Law Law Firm
Almaty city, Almaly district,
79/71 Abflay Khan Avenue, office 304
Phone: 87085785758
The petition
On the cassation review of the verdict of the specialized Interdistrict Criminal Court of the Almaty region dated January 11, 2024 and the decision of the Judicial Board for Criminal Cases of the Almaty region dated February 27, 2024.
By the verdict of the specialized interdistrict criminal court of the Almaty region dated January 11, 2024, I. O. M. was found guilty of paragraph 1) of Part 3 of Article 122 of the Criminal Code of the Republic of Kazakhstan with life imprisonment for the right to hold teaching positions and positions related to work with minors, part 1 of Article 122 of the Criminal Code of the Republic of Kazakhstan)paragraph-imposed a penalty of imprisonment for a period of 12 (twelve) years, paragraph 1,3) of part 2 of Article 191 imposed a sentence of restriction of liberty for a period of 3 (three) years.
Disagreeing with the verdict, the defenders and the defendant appealed to the Judicial Board for Criminal Cases of the Almaty region.
However, by the decision of the Judicial Board for Criminal Cases of the Almaty region dated February 27, 2024, the verdict of the specialized interdistrict criminal court of the Almaty region was left unchanged, and appeals were dismissed.
We believe that these judicial acts are subject to change. A.m. A. partially agrees with the charge. In particular, I believe that A.m.A.'s actions are incorrect and unfair under paragraph 1) of Part 3 of Article 122 of the Criminal Code of the Republic of Kazakhstan.
The fact is that the improper application of criminal and criminal procedure legislation by the courts of the first and appellate instances led to an incorrect qualification of the actions of the convicted Ashimbaev A.M. and his too severe punishment. In this case, judicial acts that have entered into force in accordance with the requirements of paragraph 3) of part 2 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan are subject to review in cassation.
It follows from the cassation judicial board that the convicted A. M. A. was the only child of his mother, from the age of 1.5 he grew up dependent only on his own mother, had no grounds except for the mother's child, A. A. committed these crimes at a minor age. Please note that the material and spiritual damage caused to the victim has been fully compensated, there are no personality, age, or serious consequences from the crimes committed by him, the material and spiritual damage has been fully compensated, and the victim and his legal representative have been pardoned.
So, at a closed court hearing on February 27, 2024, the judge of the jury, M. T. Musabekova, asked the question: "Was there sex on February 25, 2021?"the victim A. E. M. replied: "Yes, it was."
Judge Musabekova M. T. "Where was it?"To the second question, the victim A. E. M. replied: "He is at home." Further, the victim A. E. M. noted that "we A. (i.e., the convicted A. A.) were 3.5 years old, we went to court for another 3 years, from 2019 to the first trial, and we constantly had sex. We lived a sexual life," the judicial board commented.
The words spoken by the victim A. E. M. were recorded by an audio-video recording of the Court of Appeal session for 39 minutes 20 seconds – 40 minutes 10 seconds.
Consequently, the conclusions of the prosecution and the courts that the victim A.m. A., convicted on February 25, 2021, had sexual intercourse, did not find their evidence, are false.
In addition, at a court hearing of the specialized interdistrict juvenile Court of the Almaty region, which took place on September 02, 2022, A.M. informed the court that the sexual act had occurred on January 11, 2021. In particular, the state prosecutor asked: "On what day was the second time?"to the question, the victim A.M. replied: "second B# date of birth 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"). Further in this court session, the defense lawyer answered the question "for the second time on January 11, 2021," victim A.M. answered "Yes" (audio video recording of the court session 20 minutes 23 seconds – 20 minutes 30 seconds, file name "1996-22-00-1_38_02092022153006_mix. mp4"). and Judge N. T. Nurmakhanbetov, "Did you celebrate your second birthday?"when clarifying the question, the victim A.M. "Yes. We went at 12 a.m., congratulated and then it was " (audio video of the court session 29 minutes 12 seconds – 29 minutes 32 seconds, file name "1996-22-00-1_38_02092022153006_mix.mp4").
The victim A.M. discussed these statements and came to the conclusion that the sexual act occurred on the birthday of the convicted A.m. A., that is, January 11, 2021.
Despite this, the court of first instance found A. M. A. and A. E. M. guilty in this episode because they found evidence that A.M. and A. E. had sexual relations on January 12, 2021.
However, the judicial board for criminal cases of the Almaty Regional Court, without making any attempts to resolve these contradictions, came to a false, unfounded conclusion that A. Ashimbayev's guilt in this episode also finds its evidence.
Despite this, the Court of Appeal dismissed the defense lawyers' request for an 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."
So, on February 25, 2021, A. M. A.M.'s accusation of sexual intercourse was justified by the testimony of the victim A. E. M., which contradicted each other, and they did not find their evidence.
In accordance with Part 3 of Article 12 of the Criminal Code of the Republic of Kazakhstan, it is written that "an ongoing criminal offense, that is, a criminal offense involving one intent and one purpose and constituting as a whole one criminal offense consisting of a number of identical illegal actions, is not recognized as a criminal offense committed repeatedly."
Article 4 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2007 No. 11 "On the distinction between multiple and multiple criminal offenses" provides specific explanations on the requirements of this law.
In particular: "it is necessary to be able to distinguish the repeated commission of criminal offenses from ongoing criminal offenses. The commission by the same person of two or more criminal acts characterized by a single intent and a common goal, the material composition and uniformity of the consequences caused, similar to each other in the manner and object of the commission of a criminal offense, does not include repeated commission of a criminal offense.
In these cases, all the actions committed should be qualified under one article or part of the article of the Criminal Code, which provides for responsibility for the commission of this criminal offense, recognizing it as a continuing criminal offense."
In addition, paragraph 10 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 4 "On certain issues of differentiation of crimes related to rape and other violent acts of a sexual nature" states that "if the perpetrator has committed several sexual acts against the same person with a single intent within a short period However, this action does not constitute signs of repeated commission, it should be considered as an ongoing crime."
The victim, A.M., indicated in his answers that AA had a relationship like a girl and a guy, they loved each other, and there was even a conversation about marriage.
Consequently, there is an ongoing criminal offense in the actions of convicted A.A., that is, a criminal offense involving one intent and one purpose, constituting one criminal offense as a whole. I consider his actions to be unjustified, improperly differentiated on the basis of a crime committed "repeatedly."
Thus, I would like to say that the actions of convicted A. A. are not subject to qualification on the basis of a crime committed "repeatedly" and should be recognized as a chronic crime.
Therefore, I believe that A.m. A.'s actions, being a minor, are subject to qualification under Part 1 of Article 122 of the Criminal Code of the Russian Federation, and on 02/25/2021, being accused of committing a crime under Article 16 of the Criminal Code of the Russian Federation, who committed sexual intercourse on October 10, 2019 and January 11, 2021, shows the absence of warm sex. That is, he fully admits his guilt in committing a crime only at a minor age.
In accordance with Article 19 of the Criminal Procedure Code of the Republic of Kazakhstan: "indisputable doubts about the guilt of the suspect, the accused, the defendant are explained in their favor. Doubts arising in the application of criminal and Criminal procedure legislation should also be resolved in favor of the suspect, the accused, the defendant.
A guilty verdict cannot be based on assumptions and must be supported by a sufficient set of acceptable and reliable evidence."
In accordance with the requirements of 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 evidence assessment in criminal cases", if the court verdict has not been analyzed, compared and confirmed by other evidence: witness statements, protocols of procedural actions, expert opinions, physical evidence and other documents, it was It is said that it cannot be recognized as legitimate if it is released only on the basis of.
In accordance with the requirements of paragraph 16 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "on the verdict of the court", the evidence of the victim, witnesses, the contents of the testimony examined at the court session, protocols of procedural actions, and case materials are indicated in the reasoning part of the verdict. The link to the protocols of the procedural actions and other materials states that the Volumes and pages of the criminal case must be indicated.
However, the specialized interdistrict Criminal Court of the Almaty region did not admit gross violations of the norms of the above-mentioned normative legal acts during the consideration of the criminal case and the judicial board for Criminal Cases of the Almaty region during the consideration of appeals.
In particular, the specialized interdistrict Criminal Court of the Almaty region summarized in the reasoning part of the verdict that on January 12, 2021, the victim A.M., who had not reached the age of 16, committed sexual intercourse.
In particular, the court's verdict stated that "according to the court's conclusion, the responses of the minor victim A. E. M. During the pre-trial investigation and court session are unambiguous, truthful and have no grounds for their pronouncement. The victim's responses, combined with the totality of the victim's legal representatives and other documents collected in the case and evidence provided to them during the investigation, corresponded to reality according to the court's conclusion."
The court did not specify the name and totality of evidence of any other documents in the verdict, and the court did not refer to them in the verdict in the materials of the criminal case.
Thus, it can be considered that the court violated the requirements of the Criminal Procedure Legislation of the Republic of Kazakhstan.
In this case, why does the court not believe only the testimony of the victim, who fully admits his guilt and is not inclined to evade criminal responsibility, A. A. does not believe the testimony for the second time that sexual intercourse occurred on 11.01.2021, sexual intercourse did not take place on 25.02.21?
Paragraph 3 of Article 388 of the CPC of the Republic of Kazakhstan states: "if a verdict is passed at a court hearing on the basis of a comprehensive and objective examination of the evidence presented to the court, it is considered justified." However, the courts of the Almaty region violate these requirements.
The court believed that only the victim A.M., A.m. A., had sexual intercourse with him on January 12, 2021. However, either in the materials of the criminal case or in the testimony of the victim A.M., there is no evidence to establish the exact date and time of the crime.
Sex is justified only by dubious assumptions that in 2021 it was January 12th.
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 unreasonably formulated, not obeying the requirements of Article 19 of the CPC RK. I believe that according to this episode, A.M., being a minor, is subject to being found guilty of sexual misconduct by A.M., who did not reach the age of 16 on January 11, 2021.
Since the convicted A. I. O. was born on 11.01.2003, and in paragraph 2 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002 No. 6 "on criminal offenses of minors and judicial practice in cases involving them in committing criminal offenses and other antisocial acts" it is established that the person is indicated that the age is calculated from the next day, not from the day of his birth.
Complies with the requirements of Article 112 of the Criminal Procedure Code of the Republic of Kazakhstan – Factual data is considered inadmissible evidence, evidence obtained from an unknown source or from a source that cannot be determined at a court hearing, contributing to the reliability of the factual data obtained through a pre-trial investigation or judicial review of the case by depriving legally guaranteed rights of participants in the process or violating other rules of criminal procedure if they are obtained in violation of the requirements of this Code and They cannot be used as the basis of an accusation and cannot be used in evidence., as specified in Article 113 of this Code."
However, despite this, the court did not take any measures in connection with the gross violation of the requirements of the law by the investigating authority.
In particular, a photo of a girl and a guy is attached to the materials of the criminal case - volume No. 5, Page 4 of the case. 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 attached the above photo to the materials of the criminal case as illegal material evidence.
Therefore, this photograph must be recognized as data obtained in violation of the Criminal Procedure Law and, therefore, inadmissible as evidence.
In this regard, we have filed a motion with the court to declare 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.
When the convicted A. A. and the victim A.M. were questioned as witnesses before handing over their photographs for confession, he replied that he did not recognize the people who had arrived at the hotel.
Despite this, the investigating authority violated the requirements of the law and handed over the photographs of the full name and A.M. for presentation.
In the protocol of testimony for identification according to the drawing of the Full name, it is indicated that the witness I. T. recognized the person depicted in photo No. 2, The photo of the Full name says "stands in the first issue." That is, the content is the opposite. Therefore, I believe that this protocol has no legal force and cannot be accepted as evidence in the case.
And the protocol for handing over the photo to A.M. for presentation does not even say which number is assigned to her drawing. (Volume No. 5, case pages 22-26.)
In addition, A. M. A. and A. E. M. I. T. were in the Talgar district police department building on the day of the screening.
Therefore, we believe that I. T. cannot be recognized as a witness and the investigative actions against him must be recognized as illegal.
As stated in part 2 of Article 299 of the CPC of the Republic of Kazakhstan, "a preliminary answer must be received from identifying persons about the circumstances under which they can recognize the relevant person or thing, by what signs and features," and also, as stated in part 6 of Article 230 of the CPC of the Republic of Kazakhstan, "when the person cannot be shown." for identification, his photograph, presented simultaneously with photographs of at least three other persons, is, if possible, identical in shape to the person to be recognized, and can also be made by sound recording and video recording.", I believe, that the court did not recognize by the investigator as a gross violation of procedural requirements, A.m. A. was unlawfully recognized as evidence of recognition from photographs, A.M. As evidence of recognition from photographs and interrogation protocols as witnesses, etc.
The crimes provided for in Part 1 of Article 122 of the Criminal Code of the Republic of Kazakhstan are crimes of moderate severity. Therefore, we believe that AA 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."
The reason is that 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 committing a criminal offense," in article 2: "exemption from criminal liability or basic punishment: 1. from criminal liability or basic punishment: 3) compensation for damages or civil action socially vulnerable persons who have committed crimes of moderate severity, regardless of their presence, are released."
And in part 4 of Article 55 of the Criminal Code of the Republic of Kazakhstan, "in the presence of special circumstances related to the purposes and causes of the act, the role of the perpetrator, his behavior during or after the commission of a criminal offense, and other circumstances that significantly reduce the degree of public danger of the act, the court may appoint a lighter type than provided for in this article, or not to apply the additional type of punishment provided for as mandatory."
Dear Judicial Board, during the preparation of the petition for consideration, in order to verify the reliability of the above-mentioned motives, it reviewed the audio-video recording of the criminal case No.1999-24-00-1a/46 against A.m. A., considered by the Almaty Regional Court, and the audio-video recording of the court session of the specialized interdistrict Juvenile Court of the Almaty region, held on September 02, 2022 (the audio is contained in the materials of the criminal case have been preserved). Since the court session is closed, the defense cannot provide the specified audio-video recordings in accordance with the requirements of the law.
In connection with the above, I ask the Judicial Board, based on Articles 484-488 of the Criminal Procedure Code of the Republic of Kazakhstan.:
Cassation proceedings have been initiated in this criminal case, a court case has been initiated against A.m. A. of the courts of the Almaty region, that is, the defenders and the convicted A.m. A. to the Court of Cassation with direct (offline) participation; To recognize as unfounded and cancel the decision of the judicial board for criminal cases of the Almaty Regional Court of 02/27/2024; To recognize as unfair and change the verdict of the specialized The Interdistrict Criminal Court of the Almaty region dated 11.01.2024 in relation to the convicted A.m. A.; To paraphrase the actions of the convicted A.m. A. From paragraph 1) of part 3 of Article 122 of the Criminal Code of the Republic of Kazakhstan to part 1 of this Article; Convicted A. I. O. was released from criminal liability on December 7, 2021 with the application of the Law of the Republic of Kazakhstan "on Amnesty in connection with the thirtieth anniversary of Independence of the Republic of Kazakhstan" No. 81-VII SAM.
The defender is lawyer Sarzhanov G. T.
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