Appeal against a court verdict in a criminal case

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The Judicial Board of the Turkestan regional court for criminal cases

The victim K. T. E. IIN .... Turkestan region, Maktaaral district, Atakent village, URA Street, …

 

Specialized in criminal cases of Turkestan region

appeal against the verdict of the interdistrict Court of 16.09.2022.

On 16.09.2022, the court considered a criminal case on the accusation of A. N. K. of committing a crime provided for by Part 3 of Article 24, Part 1 of Article 99 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code of the Republic of Kazakhstan). According to the court verdict, the actions of A. N. K. are subject to re-qualification for crimes provided for by Part 3 of Article 24 of the Criminal Code of the Republic of Kazakhstan, part 1 of Article 99, Part 1 of Article 106 of the Criminal Code of the Republic of Kazakhstan. In addition, the court decided to partially satisfy my civil claims. Therefore, I believe that this sentence was made illegally and unjustifiably. The Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code of the Republic of Kazakhstan) states that "the grounds for canceling or changing the Ukim are as follows: 1) bias and incompleteness of the Judicial Investigation; 2) inconsistency of the conclusions of the court stated in the verdict, resolution with the actual circumstances of the case; 3) significant violation of the Criminal Procedure Law; 4) improper application of the Criminal Law; 5) inconsistency of the punishment with the severity of the criminal offense and the personality of the convicted person is the grounds for canceling or changing the sentence of the court of first instance."

 

I believe that in gross violation of the above-mentioned requirements, the court adopted an illegal sentence in accordance with the following circumstances. First of all: in accordance with the requirements of Article 24 of the Criminal Code of the Republic of Kazakhstan "the court, prosecutor, investigator, Inquirer is obliged to take all measures provided for by law for a comprehensive, complete and objective study of the circumstances necessary and sufficient for the correct resolution of the case. At the same time, the court is obliged to investigate the evidence contained in the case and presented in the ways provided for by this code." As a basis for their resumes, the court noted the testimony of witnesses A. S., N. B., B. A. in court.  They and A. N. K. he said profanity and brought it to the court, saying that he was repeatedly called to fight and that we fought among ourselves. But during the pre-trial investigation, as a witness in the interrogation protocol of 29.01.2022, the witness A. S. answered as follows: "when Kanat opened the door to get to Asylbek's car, A. K. Kel took out his knife to see if you were fighting", "abilhair Asylbek looked at us, if our brothers told us that shigol, we will raise his resentment" - volume No. 1, I. P. 67-68. in the protocol of interrogation as a witness dated 16.02.2022, A. S. answer: "Abilhair ... he pulled out a knife, saw his knife and ran out of the park, shouting that we would talk tomorrow" - volume No. 2 I. B. 106.during the pre-trial investigation of 14.02.2022 as a witness in the interrogation protocol, the witness N. B. said the following: "at that time, when K. A. pulled out a knife. .. The wing fled from there to B. Street. And Abilkair immediately got into the Niva car parked there and chased after him"," when I saw the knife in a moment, The Wing ran away from there" - Volume No. 2 I. P. 93-94.during the investigation before the Court 16. 02.2022 in the interrogation protocol as a witness, Witness B. A. said:" I don't know where Abilhair got a knife in his hand, we saw it and I, Asylbek, N. the three of us took Abilhair aside to take the knife, and The Wing ran away at this time, followed by Abilhair sat down on the Niva and chased", " Saken in front of the store. .. so Abilhair was separated by me, circumcision, The Lion three of us", "Abilhair ... he took out the knife and told me not to rely too much on his health ... and The Wing ran away", "the two were not fighting the wing was lying on the ground Abilhair was standing on one knee, holding the wing lying on the ground with one hand, the other was a knife, and I saw and let Abilhair stand" - volume No. 2, I. P. 113-115.

According to these protocols, each witness was warned of criminal liability during the preliminary investigation and at the court session for giving false testimony. In accordance with article 420 of the Criminal Code of the Republic of Kazakhstan, the court should describe the actions of the witnesses "knowingly false testimony of a witness in a criminal case of a serious or particularly serious crime or during a pre-trial investigation" and issue a separate decision, however, the court showed inaction. Thus, according to the testimony of the above witnesses at the court session, I am A. N. K. "I'm sorry," he said, " but I don't know what you mean." However, the court did not check the testimony of witnesses during the preliminary investigation, but was guided by the testimony of witnesses at the trial. In accordance with Article 372 of the Criminal Code of the Republic of Kazakhstan, the court was obliged to disclose the testimony of the victim and witness during pre-trial proceedings or previous court proceedings in the case, as well as video recording and film filming of their interrogation in accordance with the procedure provided for in Article 377 of this code. When, during the preliminary investigation, significant contradictions arose between the testimony of witnesses and their testimony in court, the court A. S., N. B., B. A. made their written testimony public at the court session and did not establish the reason for the change in their testimony.  The following witnesses who were interrogated during the pre-trial investigation were not questioned at the main trial: the witness who answered on 29.01.2022 Y. S. S. stated the following: "Kanat was going to get into his car and leave. .. Abilhair approached the wing with a knife in his hand, and at the same time all the bales stood in front of Abilhair... Asylbek was angry that my brothers would not be proud if they said shigol, and at that time Kanat was walking out the door of the park. Then Abilhair got into the car and went after the wing", "towards the wing at the time when Abilhair was holding the knife in his hand ... Kel, Kel said that we will fight " - volume No. 1 I. B. 63-63. 16.02.2022 witness I. S. S. "I got out of the car and ran out of the car, and the four of us, Joseph, steel, and Lion, were separated." - volume No. 2, I. P. 99-100.

This witness did not give any evidence during the preliminary investigation that I said profanity to the convicted A. N. K., called for a fight, and also the testimony of S. S. Y. does not contradict the testimony of A. S., N. B., B. A. during the preliminary investigation. Under unknown circumstances, this witness was summoned to court and the answer was not received. The witness M. A. A. said that during the interrogation of 22.02.2022, "I came to the door of the stadium, and at this time Kanat stood looking at Abilhair to decide who to fuck" - volume No. 2, I. P. 156-159. 22.02.2022 witness K. S. A. (a relative of the defendant) replied: "I went out in front of the cafe, when I came out, my brother Abilhair was beating on The Wing, The Wing was saying "Abi koysai, koysai"" - volume No. 2, I. B. 176-178.02.03.2022.... a White Zhiguli car came and stopped, and a child got down and separated from it " – volume No. 3 I. B. 73-75.07.06.2022 during an additional interrogation, the witness confirmed the earlier testimony of S. N. M.-volume No. 4 I. B. 151-154.  22.02.2022 witness U. A. E. during the investigation answered as follows: "Kanat ... "what I saw hit me in the face or in the upper body" - volume No. 2 I. P. 167-169.later, during the interrogation of 07.06.2022, the witness U. A. E. confirmed his testimony – volume No. 4 I. P. 147-150. The Witness A. B. T. 03.03.2022 during the pre-trial investigation brought the following evidence to the investigator:" the child Saken he fell in front of the store, and the boy who was chasing stabbed/stuck it 3 times with a knife in his hand"," the boy who was chasing. .. he was sitting on a lying child", "at this time, a white Zhiguli came and stopped, a water bottle fell out of it, separated the two children lying on the ground" - volume No. 3 I. P. 13-17.The Witness E. A. B. 02.03.2022 in his answer did not say anything about my call to fight, swear words-volume No. 3 I. P. 34-37. the witness – policeman R. N. O., 02.03.2022 on the day of the interrogation, J. gave testimony that "abilhair called to the wing to go to his car, Kanat said that I will not go with you", I spoke profanity, did not say a word about the call to fight-volume No. 3 I. P. 39-42.  According to his words, police officers gave evidence of A. K. T. – volume No. 3 I. B. 66-68, D. M. O. – volume No. 3 I. B. 44-46, B. A. T. – volume No. 3 I. B. 29-32. Thus, if the court had the goal of a comprehensive, complete and objective investigation of the circumstances, then the court was obliged to interrogate these witnesses, using all means to bring them to court and interrogate them, however, no measures were taken to call the witnesses to court. Even the court did not establish the reasons for the absence of witnesses in court and issued a decree on the forced importation (forced delivery) of witnesses. Thus, the court recognized that it was sufficient to make a decision on a particularly serious crime on the basis of the questionable testimony of 3 witnesses!!! Secondly: my opinion on the re-qualification of the actions of A. N. K. was formed by the court as follows: the court, based on the forensic medical examination, decided to recognize it as sufficient, limiting myself to causing serious damage to my health. However, the crime provided for by Article 99 of the Criminal Code of the Republic of Kazakhstan belongs to the category of crimes against the life of a person, and not against the health of a person. "In accordance with paragraph 397 of the order of the Minister of Justice of the Republic of Kazakhstan dated April 27, 2017 No. 484 ""on approval of the rules for the organization and conduct of forensic examinations and research in forensic examination bodies"", ""in case of detection of signs dangerous for life according to objective medical data, an expert can determine the severity of harm caused to health without waiting for the result of injury""." However, the investigator did not immediately appoint a forensic examination, but waited for me to be discharged, and then appointed. As a result of the late forensic medical examination, it can be argued that the expert's conclusion was not correct and objective.

 

The physical injuries inflicted on me and the mutual totality of my general condition at the time of admission to the hospital were not assessed by the court on the degree of danger to life, and the expert's opinion on these circumstances was not heard. In accordance with article 373 of the Criminal Code of the Republic of Kazakhstan "the court has the right to appoint an examination at the request of the parties or on its own initiative". But the court did not establish the degree of danger to my life as a result of the actions of A. N. K., limited myself to the harm caused to my health and did not appoint a new examination. According to medical records, I was admitted to the hospital in a very serious condition, the cause of gravity was due to a multiple amputated injury and due to traumatic shock. Scale Glasgow 10-11 points (in a coma). Pulse 124 times in 1 minute, SSC 60/40 P.B.on the above circumstances, the forensic expert should have received a question and answer about the degree of danger to my life.  The court denied my testimony about the defense of A. N. K. However, what I said is confirmed by medical documents, according to the diagnosis, I was given a "serious double injury. Multiple amputated wounds, muscle and vascular damage to the shoulder, forearm, and thigh areas of both hands. A cut wound in the area of the right costal arch that did not enter the abdominal cavity. There is an open fracture of the distal phalanx of the 2nd finger of the left hand, a cut wound. It occurred when I was lying on the ground with my limbs protected from the blows of A. N. K. to protect the vital organs of my body from injuries and knives. If I am not protected by their actions and witnesses in the case are late to the scene of the incident, A. N. K. I could have been deprived of my life as well. My testimony is confirmed by the video recording of the camera "Saken bar". Third: the court, based on Paragraph 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan "on the qualification of certain criminal offenses against the life and health of a person", considered that "the investigative body did not indicate which of the other persons intervened and prohibited the criminal activity of A. K."!!! The verdict says that "in his conclusion, the criminologist did not indicate that other persons intervened and prohibited the actions of A. K.". The said court conclusion does not correspond to the evidence collected in the case, since according to the testimony of the Witness: B. A., I. S. S., S. N. M., A. B. T., It is stated that the actions of A. N. K. were obstructed by other persons.  In addition, in the video from the camera "Saken bar", which was studied at the court session, it was possible to observe my active defense against the blows of A. N. K. But the court did not pay attention to these circumstances. Thus, it can be considered that the court again grossly violated the requirements of Article 24 of the Criminal Code of the Republic of Kazakhstan. Fourth: in the verdict of the court, the investigating authorities A. N. K. the accusation was based only on my answer. But with the testimony of the above witnesses, it can be said that the guilt of A. N. K. was fully proven. Fifth: the court recognized A. N. K. as circumstances mitigating responsibility and punishment-unlawful and non – immoral behavior of the victim, which provoked a criminal offense! Consequently, the court did not take into account the true testimony of more than 10 witnesses, based on the questionable testimony of 3 witnesses. Sixth: the court charged A. N. K. with incorrect calculation of procedural costs. In particular, 3 certificates of the movement of a criminal case are attached to the criminal case. Each certificate indicates procedural costs for conducting forensic Narcological, Forensic Psychiatric and forensic biological examinations in the amount of 2,252.50 tenge, 230.51 tenge, 100,408. 62 tenge, respectively. The court A. N. K. collected only 100,408 tenge, but the court had to collect 102,890 tenge.

 

Seventh: the court illegally partially satisfied my civil claims. The court recognized as evidence the testimony of witnesses B. Sh., zh. K., M. Oshurov in gross violation of the requirements of Article 153 of the Civil Code of the Republic of Kazakhstan "non-compliance with the simple written form of the transaction deprives the parties of the right to confirm the conclusion, content or execution of the transaction by witness testimony". In addition, the court considered the apology to be clear evidence. In accordance with Article 67 of the Civil Code of the Republic of Kazakhstan "if, as a result of the inspection, it is established that the evidence corresponds to the truth, the evidence is considered reliable". But when I read the full text of the apology, it was written to leave the application unattended, so I did not refuse the claims made by A. N. K. "I don't know," he said, " but I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know, I don't know. I ask you to take into account the fact that by the verdict of the District Court No. 2 of the Maktaaral District of the South Kazakhstan region, the court was ruled by Part 3 of Article 293 of the Criminal Code of the Republic of Kazakhstan. In accordance with paragraph 2 of the normative resolution of the Supreme Court of the Republic of Kazakhstan" on a court verdict "" verdict, if it ... it should be borne in mind that in accordance with the requirements of the Criminal Procedure Law on judicial proceedings on the basis of the principle of competitiveness and equality of the parties, the rules of law are legal if they are issued by the legal composition of the court with proper application. Based on the evidence collected in compliance with the requirements of the law and fully, objectively and comprehensively studied, analyzed and duly evaluated directly at the court session, the verdict motivated by judicial nodes is justified." Thus, based on the above arguments, I believe that the verdict of the specialized Inter-District Court for criminal cases of the Turkestan region cannot be considered legitimate and justified. On the basis of Article 414, article 431 of the Criminal Code of the Republic of Kazakhstan, I ask the court:

Cancellation of the verdict of the specialized Inter-District Court for criminal cases of the Turkestan region dated 16.09.2022;

A. N. K. recognized as having committed a criminal offense provided for in Part 3 of Article 24, Part 1 of Article 99 of the Criminal Code of the Republic of Kazakhstan and imposed a sentence of imprisonment;

to fully satisfy the civil claim of the victim.

 03.10.2022 E. K. T. 

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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