A private complaint against a court ruling in a criminal case
Attention! The Law and Law Law Firm draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you in drafting any legal document that suits your situation. For more information, please contact a Lawyer/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
To the Judicial Board for Criminal Cases of the Almaty City Court
from the convicted Zh.A.E., born on 06/05/1992, INN ....,
place of residence: Almaty, ul. ..., 79.k.t. 8 778 .....
Private complaint
on the resolution of the District Court No. 2 of the Bostandyk district of Almaty dated 08/11/2022.
On 13.03.2020, by the verdict of the District Court No. 2 of the Bostandyk district of Almaty, I was found guilty of committing a criminal offense under art. 190, part 3, paragraph 1,4 of the Criminal Code of the Republic of Kazakhstan and sentenced to three years in prison. By the resolution of the Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan dated 07/02/2020, the above-mentioned court verdict was changed, based on art. 74 Part 1 of the Criminal Code of the Republic of Kazakhstan, the imposed punishment was postponed for two years. The time spent in custody in accordance with art.476 part 13 of the Criminal Procedure Code of the Republic of Kazakhstan, in accordance with art. 62 of the Criminal Code of the Republic of Kazakhstan is counted towards the term of serving the sentence. The head of the probation department of the Bostandyk district of Almaty appealed to the court to replace the sentence imposed on me with a milder type of punishment, in the form of restriction of liberty for the remaining period of 2 years, 7 months, and 15 days. By the decision of the District Court No. 2 of the Bostandyk district of Almaty, the submission of the head of the probation department of the Bostandyk district of Almaty to replace the imposed punishment with a more lenient type of punishment, in the form of restriction of liberty, was refused. I completely disagree with this court ruling, I think it is not objective and not legitimate.
This is how the court motivated its decision that I did not take measures to fully compensate for the damage caused by the crime recovered in favor of the victim T.A.K. Although I allegedly indicated during the consideration of the criminal case in the Supreme Court of the Republic of Kazakhstan that if Article 74 of the Criminal Code of the Republic of Kazakhstan was applied, I would take measures to fully compensate for the damage. Accordingly, in confirming the circumstances regarding the validity of the probation service's submission, I and the probation service provided evidence to the court of first instance. Namely, after my release, being self-employed, despite the fact that I was pregnant, so no one hired me, I fully paid off all legal costs, the state fee, the compulsory payment to the victims compensation fund, and fully paid off the civil claim collected from me in favor of the victim A.E.K. in the amount of 1,500 500 tenge, according to the court verdict. Moreover, at present, the victim T.A.K. has been reimbursed more than two million tenge, that is, the damage has been partially repaid. These actions speak to my positive behavior. In part 3 of Article 74 of the Criminal Code of the Republic of Kazakhstan, it is prescribed that after the expiration of the suspended sentence or in cases of death of a child or termination of pregnancy, the court, depending on the behavior of the convicted person, may release him from serving his sentence or replace the imposed punishment with a milder type of punishment, or decide to send the convicted person to an appropriate institution to serve his sentence. That is, the Law prescribes not full compensation for damage solely to all victims and their opinions, but from the behavior of the convicted person.
I am characterized only on the positive side, as follows from the case file, and the explanations of the representative of the probation service, I have no violations of the Law. I am self-employed despite the fact that I am raising two minor children, one of whom is under two years old, I am taking all measures to compensate for major damage. When, as everyone knows, the mother who gave birth to a child has the right to parental leave for up to three years. But despite this, I am looking for all the ways out and any job to somehow feed my family and pay the damage. Accordingly, under these circumstances, in two years I was physically unable to fully repay the damage. At the same time, the court did not take into account the fact that for two years a quarantine regime had been in effect in the Republic of Kazakhstan in connection with the outbreak of the Covid-19 pandemic. A state of emergency was also introduced, especially on the territory of Almaty. Moreover, two children live with me and are dependent on me, and I am currently five months pregnant. In accordance with parts 1, 2 of art. 39 of the Criminal Code of the Republic of Kazakhstan, punishment is a measure of state coercion imposed by a court verdict. The punishment is applied to a person found guilty of committing a criminal offense and consists in the deprivation or restriction of the rights and freedoms of this person provided for in this Code. Punishment is applied in order to restore social justice, as well as to correct the convicted person and prevent the commission of new criminal offenses by both convicted and other persons. Punishment is not intended to cause physical suffering or humiliate human dignity. Also in the paragraph . 3 of the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan "On certain issues of the appointment of criminal punishment" dated 05/25/2015 No. 4, stipulates that courts should comprehensively, fully and objectively examine data on the identity of the defendant, bearing in mind their significant impact on determining the type and amount of punishment. In particular, it is necessary to clarify the state of health, ability to work, attitude to work, education, information about the criminal record and marital status of the defendant. In accordance with the third part of Article 52 of the Criminal Code, courts must take into account the impact of the imposed punishment on the living conditions of the defendant's family and dependents when imposing punishment.
Therefore, in our case, the imposed punishment in the form of imprisonment directly causes not only physical and moral suffering to me, but also, first of all, to my unborn child's minor children. If I am sent to places of detention, the children will experience moral suffering accordingly, which will affect their psycho–emotional state. Since my children are seven and two years old, they need constant care and maternal affection due to their age. The excessively strict criminal punishment for me does not comply with paragraphs 1 and 2 of the Law of the Republic of Kazakhstan "On the Rights of the Child in the Republic of Kazakhstan", which protects: - The child's right to life, personal freedom, inviolability of dignity and privacy, and it is prescribed:
Every child has the right to life, personal freedom, inviolability of dignity and privacy.
The State ensures the personal inviolability of the child, protects him from physical and (or) mental violence, cruel, rude or degrading treatment, sexual acts, involvement in criminal activities and anti-social acts and other activities that infringe on the rights and freedoms of man and citizen enshrined in the Constitution of the Republic of Kazakhstan.
It also does not comply with article 9 of the Convention on the Rights of the Child, which states that States Parties ensure that a child is not separated from his parents against their wishes, except in cases where the competent authorities, according to a court decision, determine in accordance with applicable law and procedures that such separation is necessary in the best interests of the child. Part 3 of Article 190 of the Criminal Code provides for an alternative type of punishment in the form of restriction of liberty. Therefore, it is not illegal to replace punishment with restriction of freedom. And by virtue of Articles 40 and 44 of the Criminal Code of the Republic of Kazakhstan, it is one of the types of punishment. I also disagree with the opinion of the court, which took into account the opinion of the victims, worsening my situation, since a negative opinion is not an aggravating circumstance. The victims expressed their opinions in a fit of anger, and as I pointed out above in Article 74 of the Criminal Code of the Republic of Kazakhstan, it is not about the opinion of the victims, but about my behavior. And in our case, I am not exempt from the prescribed punishment. The victims expressed their opinions, not understanding the essence of the trial, they thought that they wanted to release me from punishment altogether.
I have not committed violations of the suspension of punishment, my place of residence is characterized positively, there are no complaints or comments from relatives or neighbors, and I have no bad habits. The claim of the victim A.E.K., and the court costs are fully paid off. T.A.K.'s claim has been partially settled. I have done all this despite the fact that I have an infant during a state of emergency and a pandemic. I have two dependent young children. I am five months pregnant. Being at large, I will fully repay the damage to the victim T.A.K. accordingly. because there will be a real opportunity. I believe that the court did not accept all the circumstances I outlined, which led to the issuance of an unbiased and illegitimate ruling. I express the hope that the board will show humanity and deprive young children of the care of their mother at such a tender age, whose fate is not defined in the court's ruling, which contradicts the customs of our people and will not deprive them of their only support - the mother. Based on the above, guided by subparagraph 7) of part 1 of Article 431 of the Criminal Procedure Code of the Republic of Kazakhstan; I request: To cancel the decision of the District Court No. 2 of the Bostandyk district of Almaty, dated August 11, 2022, in respect of the convicted Zh.A.E., in full, and adopt a new resolution to satisfy the submission of the head of the probation department of the Bostandyk district of Almaty to replace the imposed punishment with a milder type of punishment, in the form of restriction of liberty for the remainder of the term. When considering the complaint, my rights and interests will be defended by lawyer of Kostanay regional Bar Association Nurlan Kaziullovich Zhanyspaev WhatsApp 8 701 109 1717.
Application:
Documents attesting to the repayment of the claim. on 3 sheets
A copy of the children's birth certificates,
Copies of the pregnancy certificate of J.A.E.,
Resolution of the Supreme Court of the Republic of Kazakhstan,
A copy of the notarized consent of the victim A.E.K.
A copy of the lawyer's certificate, notification.
August 26, 2022. J.A.E..
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.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
