A complaint against the investigator for the late response to the lawyer's petition, as well as the inaction of the Prosecutor's Office
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To the Specialized Interdistrict Investigative Court of Almaty
Almaty, md. Orbita -2 house 20a 2.
8727 (333)-14-60
from: Defense attorney Galymzhan Turlybekovich Sarzhanov
Law and Law Law Firm
BIN 201240021767
79/71 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 978 5755; +7 708 578 5758.
In the interests of: suspect R.E.E.
……………….. year of birth
IIN .................
Claim
The investigator was attacked for the late response to the lawyer's request, as well as for the inaction of the Almaly district Prosecutor's Office to redirect the complaint to the Almaty City Police Department.
The reason for our appeal to you was the blatant injustice and lawlessness of the pre-trial investigation of criminal case No. 237511031001537 against suspect R.E.E., based on the elements of a criminal offense under Article 190 of the Criminal Code of the Republic of Kazakhstan.
In the proceedings of the SB UP of the Almaly district of the DP of Almaty, the senior investigator, police Major A.Zh.T., is investigating a criminal case registered in the ERDR for No. 237511031001537 dated May 13, 2023 under art. 190, Part 3, paragraph 4 of the Criminal Code of the Republic of Kazakhstan, Fraud against two or more persons is not repeated.
Part 1 of Article 23 of the Criminal Procedure Code of the Republic of Kazakhstan establishes that criminal proceedings are conducted on the basis of the principle of competition and equality of the parties to the prosecution and defense.
On the basis of paragraph 2) of part 2 of Article 70 of the CPC, the defender has the right to collect and present objects, documents, information, as well as other data necessary for the provision of legal assistance, which are subject to attachment to the materials of the criminal case.
Thus, based on the above-mentioned norms, in the framework of this criminal case, the defense has repeatedly filed the following petitions:
A petition for attaching documents to the materials of the criminal case dated 05/15/2023, registered No. ZT-2023-00845271, to which the response was received on June 01, 2023;
Application for admission of a defender dated May 15, 2023, registered No. ZT-2023-00844949, to which the response was received on June 01, 2023;
A petition for the attachment of documents to the materials of the criminal case dated 05/18/2023, registered No. ZT-2023-00878648, to which there is still no response.;
A petition for the attachment of documents to the materials of the criminal case dated 05/18/2023, registered No. ZT-2023-00879589, to which there is still no response.;
A request for inspection with video recording of the assembly shop in the framework of the criminal case dated 05/21/2023, registered No. ZT-2023-00894995, to which there is still no response.;
A petition for the attachment of documents to the materials of the criminal case dated 05/21/2023, registered No. ZT-2023-00895031, to which there is still no response.;
A petition for the attachment of documents to the materials of the criminal case dated 05/21/2023, registered No.ZT-2023-00895034, to which there is still no response.;
A petition for the attachment of documents to the materials of the criminal case dated 05/21/2023, registered No.ZT-2023-00895046, to which there is still no response.;
Petition dated 05/21/2023, registered No. ZHT-2023-00948225 for recognition from R.S.A. IIN ........... the additional defender of the suspect, R.E.E., in the framework of the criminal case, which has not been answered to this day.;
Article 99 of the CPC of the Republic of Kazakhstan provides that participants in criminal proceedings have the right to apply to the person conducting the pre-trial investigation with requests for procedural actions or making procedural decisions to establish circumstances relevant during the criminal process, to ensure the rights and legitimate interests of the person who filed the petition or the person they represent. The application is subject to review and resolution immediately after its application. In cases where an immediate decision on the application is not possible, it must be resolved no later than three days from the date of the application.
According to Article 8 of the Criminal Procedure Code of the Republic of Kazakhstan: The tasks of the criminal process are the suppression, impartial, prompt and complete disclosure, investigation of criminal offenses, exposure and prosecution of those who committed them, fair trial and proper application of criminal law, protection of individuals, society and the state from criminal offenses.
The procedure established by law for criminal proceedings should provide protection from unjustified charges and convictions, unlawful restrictions on human and civil rights and freedoms, and in the case of unlawful charges or convictions of an innocent person, his immediate and complete rehabilitation, as well as contribute to strengthening law and order, preventing criminal offenses, and fostering respect for the law.
Accordingly, referring to the above, we submitted the above-mentioned petitions to the investigator for the conduct of procedural actions by the criminal prosecution authority. However, modern measures were not taken on these petitions, violating the norm of Article 99 of the Criminal Procedure Code of the Republic of Kazakhstan.
In addition, the pre-trial investigation body has not conducted any investigative actions since the suspect's arrest for two weeks In accordance with Part 1, Article 192 of the Code, which stipulates that the pre-trial investigation must be completed within a reasonable time, taking into account the complexity of the criminal case, the scope of investigative actions and the sufficiency of the investigation of the circumstances of the case, but not more than the statute of limitations of criminal prosecution, established by the Criminal Code of the Republic of Kazakhstan.
Subsequently, on 06/03/2023, we filed a complaint with the Almaly district Prosecutor's Office of Almaty about the inaction of the senior investigator from the Almaly district Police Department, police Major A.J.T., where they asked to oblige the pre-trial investigation body to immediately respond to all sent petitions; To bring to disciplinary responsibility an official who violated the norms of procedural law;
However, according to the information of the system eotinish.kz , June 08, 2023, the prosecutor of the department - the Almaly District Prosecutor's Office T.K.K. reviewed and fully forwarded our appeal (Complaint) No.ZT-2023-01000425, which was received by the Almaly District Prosecutor's Office at the State Institution "Almaty City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" for consideration according to article 65 of the CPC RK. "Redirection of an appeal to an authorized administrative body, official 1. An appeal received by an administrative body or an official whose authority does not include consideration of this appeal is forwarded to the authorized administrative body or official within three working days from the date of its receipt, with simultaneous notification (notification) of the participant in the administrative procedure."
We do not agree with the indicated inaction of the Almaly District Prosecutor's Office, since our complaint is directly subject to consideration by the prosecutor's office as the supervisory authority for law enforcement over the criminal prosecution body.
Dear Court, we believe that my client's actions are not objectively qualified. There are agreements and decisions of the civil court on this fact and, accordingly, it is necessary to conduct investigative actions, which we indicated in the Petitions.
106 of the Criminal Procedure Code of the Republic of Kazakhstan, a person whose rights and freedoms are directly affected by an action (inaction) and a 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, commission of other actions (inaction) and decision-making.
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.
In accordance with paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 27, 2012 No. 3 on consideration by courts of complaints against actions (inaction) and decisions of the prosecutor, criminal prosecution authorities (Article 106 of the Criminal Procedure Code of the Republic of Kazakhstan) (hereinafter referred to as the resolution) where it is stipulated that the law does not prohibit the filing of complaints against actions (inaction) and decisions of the bodies of inquiry, preliminary investigation, prosecutor also during the consideration of a criminal case in court. In such cases, the court considers complaints from the perspective of verifying the legality of the proceedings and the admissibility of evidence obtained as a result of the actions (inaction) or decisions being appealed, and makes an appropriate decision when evaluating evidence in the case under consideration.
Based on the above and in accordance with Articles 15, 24, 100, 106 of the Criminal Procedure Code of the Republic of Kazakhstan,
I ask you to:
To recognize the inaction of the senior investigator from the Almaly district police Department of Almaty, police Major A.Zh.T., due to the late response to the lawyer's petition, as illegal;
To recognize the action of the Almaly District Prosecutor of Almaty, T.K.K., to redirect the appeal (Complaint) No. ZT-2023-01000425, received by the Almaly District Prosecutor's Office at the State Institution "Almaty City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" for consideration in accordance with Article 65 of the CPC RK.- illegal;
To assign to the prosecutor of the Almalinsky and CO UP Almalinsky district of the DP of Almaty the duties of eliminating the violation of the rights and legitimate interests of R.E.E., in criminal case No. 237511031001537, to immediately respond to all sent petitions.;
With respect,
Lawyer: __________/Sarzhanov G.T.
"___" __________ 2023 g
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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