A complaint against the decision to dismiss a motion to terminate a criminal case.
To the Prosecutor of the Almaty region
To Adamov B.A.
from the defenders of the suspect, U. K.K. – lawyers
Nigmetova S.D., Sarzhanova G.T.
a complaint against the decision to dismiss a motion to terminate a criminal case.
The Talgar district Police Department of the Almaty region has completed the investigation of a criminal case registered in the ERDR for No. 231962031002008 against UKK, suspected of committing a crime under Articles 24, Part 1 – 120, Part 1 of the Criminal Code of the Republic of Kazakhstan. The criminal case was sent to the Prosecutor's Office of Talgar district of Almaty region.
On 17.10.2023, we filed a petition to the prosecutor of the Talgar district to terminate the criminal case against Umarov K.K. for lack of evidence of a criminal offense under Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan.
On 19.10.2023, the prosecutor of the Talgar district issued a decision to dismiss the petition.
We believe that the decision of the prosecutor of the Talgar district is illegal on the following grounds.
According to paragraphs 1) of Part 1, Part 2 of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan, a criminal case is subject to termination for the absence of elements of a criminal offense in the act, both if the absence of an event of a criminal offense or elements of a criminal offense is proven, and if their presence is not proven, if all possibilities for collecting additional evidence have been exhausted.
According to the materials of the criminal case, according to the victim and A.S., the suspect Uv K.K. broke into the bathhouse, breaking down the doors. However, during the investigation of the criminal case, the fact that U.K. K. was in the bathhouse was not confirmed in the materials of the criminal case. During the inspection of the scene in the bathhouse, the fingerprints of the suspect, Uv K.K., were not found and were not included in the materials of the criminal case.
In addition, in her testimony, the victim and A.S. say that U.K.K. used violence against her, grabbed her by various parts of her body with his hands, and strangled her in the neck area. However, the nail slices were not taken from the suspect, UK K.K., for forensic examination to determine whether the biological material (skin) of the victim and A.S. were found in them. Also, according to Ibraeva A.S., she actively defended herself from the encroachment of Uk K.K. However, the victim and A.S. nail slices were also not seized for forensic examination to find skin or fabric fibers of the suspect's clothing Umarov K.K.
There are also doubts about the reliability of the forensic medical examination conducted by the victim. According to expert opinion No. 20-08-12/13, the victim was examined on 06/23/2023, on the basis of a resolution dated 06/22/2023 based on ERDR No. 231962031001856. The victim refused to take photos. Thus, doubts arise about the reliability of the expert opinion that examined the victim. The interrogated expert M.O. Kusherov explained that there was a typo. We believe that the testimony of the expert Kusherov M.O. They do not correspond to reality, since by the nature of his activity and having been warned about criminal liability under Article 420 of the Criminal Code of the Republic of Kazakhstan before conducting the examination, he could not make mistakes in such trifles, and based on his testimony it is impossible to establish the actual circumstances of the forensic examination. Which, accordingly, entails the unreliability of the conclusions presented by expert Kusherov M.O. in the conclusion and the inadmissibility of expert opinion No. 20-08-12/13 as evidence.
The suspect Umarov K.K. was repeatedly examined by medical workers, according to their documents, no visible injuries were found on him. However, according to expert opinion No. 20-08-12/483, bodily injuries were found on the body of u.K.K. Thus, the conclusion of the expert who conducted the examination of Umarov K.K. is also questioned by us and entails the exclusion of the said expert opinion from the evidence in the case.
At the moment, it is not possible from our point of view to obtain samples for forensic examination in order to find the skin of the victim and A.S. under the nails of the suspect or the skin of the suspect U K.K. and the fibers of the fabric of his clothes under the nails of the victim.
During the interrogations and confrontations between the suspect u.K.k. and other participants in the investigation, the latter maintained stable testimony in which he denied the fact of sexual violence against the victim.
Thus, the suspicion of U.K.K. in the commission of attempted rape is based solely on the testimony of the victim. Which we consider insufficient for the final indictment and referral of the case to the court for consideration of the criminal case on its merits.
We believe that all the ways to establish the factual circumstances of the case have been exhausted or it is not possible to carry them out.
The Talgar district prosecutor justified his decision to dismiss the request to terminate the criminal case by saying that UK.K. had previously testified that he had entered the sauna.
However, the defender Nigmetov S.D. earlier, on 08/04/2023, according to these statements, a complaint was filed with the prosecutor of the Talgar district about the recognition of the investigative actions involving U K.K. as illegal, due to the gross violation of the rights of U K.K. to provide a defender and an interpreter as a person who does not speak Kazakh and Russian. The complaint stated that the following investigative actions had been declared illegal:
- the protocol of the interrogation of the U.K.K. as a witness entitled to protection dated 07/10/2023;
- protocol of the confrontation between the victim and A.S. and the witness entitled to the defense of the U.K. dated 07/11/2023;
- the protocol of the interrogation of the U.K.K. as a suspect dated 07/13/2023;
- protocol of the confrontation between witness I. S. and the suspect U. K.K. dated 07/13/2023;
- the actions of the investigator of the Talgar district Police Department, Musabai M.K., on the failure to provide an interpreter and a defender during the procedural actions with U K.K.
By the resolution of the prosecutor of the Talgar district dated 08/21/2023, the complaint of the defender Nigmetov S.D. was satisfied in full.
As a result of the satisfaction of the complaint, the suspect was interrogated, as well as confrontations of the suspect u.K. with the victim And A.S. and the witness AND S.
Also, according to investigator Musabai M.K., she was brought to disciplinary responsibility for violations of the law during the conduct of investigative actions, indicated in the complaint of the defender Nigmetov S.D.
In this regard, we consider the arguments of the prosecutor of the Talgar district that U.K.K. had previously confessed to be untenable and not based on the norms of the Criminal Procedure Code of the Republic of Kazakhstan. The decision of the prosecutor of the Talgar district dated 08/21/2023 was not canceled and is valid in the framework of the criminal case.
According to Part 3 of Article 112 of the Criminal Procedure Code of the Republic of Kazakhstan, "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."
According to Part 7 of Article 115 of the Criminal Procedure Code of the Republic of Kazakhstan, "The testimony of a person who, in accordance with the procedure established by this Code, was found unable at the time of interrogation to correctly perceive or reproduce the circumstances relevant to the criminal case is not considered evidence."
Moreover, according to Part 3 of Article 115 of the Criminal Procedure Code of the Republic of Kazakhstan, "A suspect's admission of guilt in committing a criminal offense can be used as the basis for an accusation only if his guilt is confirmed by the totality of evidence available in the case." The suspect, u.k.k., pleaded not guilty to committing a criminal offense. Suspicion of attempted rape is based only on the testimony of the victim, while there is no other evidence of violence against the victim Ibraeva A.S. in the bathhouse by Umarov K.K. the investigation has not been obtained.
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 should also be resolved in favor of the suspect, the accused, and the defendant.
According to paragraph 4) of Part 1 of Article 302 of the Criminal Procedure Code of the Republic of Kazakhstan, the prosecutor terminates the criminal case in full or in part on the grounds provided for in Articles 35 and 36 of this Code.
Based on the above in accordance with Article 70 of the Criminal Procedure Code of the Republic of Kazakhstan, we request:
- the decision of the prosecutor of the Talgar district Bekmanov dated 19.10.2023 to declare illegal and cancel;
- to issue a resolution on the termination of criminal case No. 231962031002008 against U. KKodirjonovich for the absence of elements of a criminal offense in the act.
Appendix: a copy of the resolution of the prosecutor of the Talgar district dated 10/19/2023, a copy of the petition for termination of the criminal case dated 10/17/2023, a copy of the complaint of the defender Nigmetov S.D. dated 08/04/2023, a copy of the resolution of the prosecutor of the Talgar district dated 08/21/2023.
Lawyers Nigmetov S.D., Sarzhanov G.T.
20.10.2023
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