Appeal against the verdict of the District Court
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To the Judicial Board for Criminal Cases of the Almaty City Court
from the defender – lawyer of the Law and Law Law Firm
Sarzhanov Galymzhan Turlybekovich,
and the defense lawyer, Sabit Davletovich Nigmetov.,
address: 79 Abylai Khan Ave., Almaty, offices 304, 313.
Cell phone numbers: 87085785758, 87054628284
in the interests of the convicted K.A.T., born on 26.06.1977
appeal against the verdict of the District Court No.2 of the Bostandysky district of Almaty dated October 31, 2022.
On October 31, 2022, by a court verdict, K.A.T. was found guilty of committing criminal offenses under part 2 of Article 272, paragraphs 1,3,6 of part 2 of Article 269, paragraphs 1,4,8,9 of part 3 of Article 380 of the Criminal Code of the Republic of Kazakhstan and was sentenced to 3 years in prison under part 2 of Article 272 of the Criminal Code of the Republic of Kazakhstan, under paragraphs 1,3,6 of Part 2 Article 269 of the Criminal Code of the Republic of Kazakhstan is 7 years in prison, according to paragraphs 1,4,8,9 of part 3 of Article 380 of the Criminal Code of the Republic of Kazakhstan is 7 years in prison. Based on part 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment with a more severe one, Kurdjieff A.T. He was finally sentenced to 7 years of imprisonment to be served in institutions of the medium-security penal system. We consider this verdict to be illegitimate and unjustified on the following grounds. According to Article 433 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), "The grounds for revoking or changing the verdict of the court of first instance are: 1) one-sidedness and incompleteness of the judicial investigation; 2) inconsistency of the conclusions of the court set out in the verdict, resolution, factual circumstances of the case; 3) significant violation of the criminal procedure law; 4) improper application of the criminal law." The grounds specified in Article 433 of the CPC of the Republic of Kazakhstan took place during the trial and during the sentencing by the court. The one-sidedness and incompleteness of the judicial investigation were expressed in the fact that K.A.T.'s actions were qualified by the criminal prosecution body under Articles 269, part 2, paragraphs 1, 3, 6 of the Criminal Code of the Republic of Kazakhstan, i.e. an attack on a building committed by a group of persons by prior agreement, using violence dangerous to life and health, in relation to government agencies, as well as the seizure.
From paragraph 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan (hereinafter NP SC RK) dated 04/20/2018 No. 4 "On the court verdict" it follows: "if a criminal offense is committed by a group of persons, a group of persons by prior agreement or an organized group, specific criminal acts committed by each of the defendants must be described." However, in violation of the specified paragraph of the NP of the Supreme Court of the Republic of Kazakhstan, neither the specific criminal actions of A.T. Kurdjieff nor the other accomplices were identified during the trial. The court did not find out from the prosecution where the other accomplices of the crime are at the moment, why K.A.T. was put on trial alone. The verdict does not specify the persons against whom K.A.T. and the accomplices of the crime used violence dangerous to the life and health of the victims. There are no expert opinions or experts with reliable conclusions in the case that on January 5, 2022, during the period when K.A.T. was in Republic Square in front of the building of the Akimat of Almaty or in the building of the Akimat of Almaty, harm was inflicted to anyone that was dangerous to life or health. Moreover, despite the defense's argument that the disposition of Article 269 of the Criminal Code of the Republic of Kazakhstan (hereinafter the Criminal Code of the Republic of Kazakhstan) lacks a qualifying feature "in relation to state bodies", as indicated in the indictment, the court did not assess this fact and simply found K.A.T. guilty of a non-existent crime. K.A.T. was also charged with committing a crime under art. 272 h. 2 of the Criminal Code of the Republic of Kazakhstan, that is, participation in mass riots accompanied by violence, pogroms, arson, destruction, destruction of property, as well as armed resistance to a representative of the government. Evidence, including the testimony of victims and witnesses, explicitly indicating that during the time K.A.T. was in Republic Square in front of the building of the Akimat of Almaty and in the building of the Akimat, K.A.T. or other persons committed the above actions, was not established by the court in the verdict. Only law enforcement officers, such as J.H. and H.S.E., were recognized as victims – individuals in the case, while the Akimat of Almaty and JSC Halyk Bank of Kazakhstan were recognized as victims – legal entities. Information about other victims who were subjected to violence or their property was vandalized, burned, destroyed, destroyed, as well as about armed resistance to a representative of the authorities was also not established by the court verdict. None of the victims questioned during the main trial, T.J.H., H.S.E. and the witnesses questioned during the pre-trial investigation, T.A.G., B.E.A., and M.M.G., did not say that they had seen K.A.T. commit violence, pogroms, arson, destroy property, or provide armed resistance to government officials. There is also no confirmation of this accusation in the videos available in the criminal case. In the video, K.A.T. is unarmed, does not carry foreign objects, he does not have special means of law enforcement officers with him, he does not hide his face, however, the court, despite the complete lack of evidence, found him guilty under art. 272 part 2 of the Criminal Code of the Republic of Kazakhstan. The next episode of the charge, in which K.A.T. was also found guilty, was the use of life–threatening violence against a government official in connection with the performance of his official duties, committed against two or more persons, by a group of persons by prior agreement, during mass riots, as well as the area where it was declared illegal. a state of emergency, i.e. a crime under art. 380, part 3, paragraphs 1, 4, 8, 9 of the Criminal Code of the Republic of Kazakhstan.The court verdict also did not establish who K.A.T. and his accomplices used life-threatening violence against. The persons who suffered life-threatening harm have not been identified, and the court did not specify from the state prosecution who the victims were as a result of the actions of K.A.T. and other accomplices, or where the other accomplices of the crime were located. The court unreasonably agreed with the qualification of the act, where, according to the indictment, "two or more persons" are indicated, although violence was used against only two persons on the video attached to the materials of the criminal case, two representatives of the authorities, T.Zh.Kh. and H.Sh.E., the degree of harm to their lives or health has not been established, were also recognized as victims.. The court's verdict does not refer to the evidence examined in the trial, including the conclusions of experts or specialists on causing life-threatening harm to other persons during the stay of K.A.T. on Republic Square in front of the building of the Akimat of Almaty or in the building of the Akimat of Almaty. The defense also informed the court that the prosecution had not attached to the materials of the criminal case the Decree of the President of the Republic of Kazakhstan dated 05.01.2022 "On the introduction of a state of emergency in the city of Almaty". Upon proper study, it can be seen that the provisions of the Decree did not contain a ban on the movement of citizens in the city of Almaty, but only limited it. The extent to which movement in the city of Almaty was restricted has not been established by the court verdict. The evidence indicating that the representatives of the authorities demanded that K.A.T. and others leave the square or forbade them to enter the building of the Akimat of Almaty was also not established by the court, and is unfounded. The court did not establish the legality of the use of stun grenades and tear gas grenades by law enforcement officers. The Decree of the President "On the introduction of a state of emergency in the city of Almaty" did not establish a ban on the activities of legal entities.; The documents indicating that the law enforcement officers who were in the Akimat building were in a state of defense during the trial were not provided to the court, and this defense argument was not evaluated in the court's verdict. Information about informing the people on the square about the establishment of a ban on approaching and entering the building of the Akimat of Almaty was also not provided to the court, although according to the testimony of the victims, at 7 a.m. they were verbally informed that they were going to protect the akimat building. In this regard, for what reason the akimat building needs to be guarded, it has not been established from the testimony of victims and witnesses, and there are no corresponding written orders or orders in the criminal case. Thus, the presence of K.A.T. in the Republic Square in front of the Akimat of Almaty or in the building of the Akimat of Almaty cannot be considered illegal. However, the court, without taking into account these circumstances, a priori recognized the presence of K.A.T. on Republic Square and in the building of the Akimat of Almaty as illegal and criminal without any evidence. The state prosecution provided the court with unsubstantiated charges and the court agreed with them, grossly ignoring the current norms of the Criminal Procedure Code of the Republic of Kazakhstan and the Criminal Code of the Republic of Kazakhstan, as well as the NP of the Supreme Court of the Republic of Kazakhstan. During the court arguments, the defense also drew the court's attention to the fact that, according to the Presidential Decree "On the introduction of a state of emergency in the city of Almaty," Kanat Daniyarovich Timerdenov, head of the Almaty Police Department, was appointed Commandant of the city of Almaty. According to paragraph 2) of art. 1 of the Law of the Republic of Kazakhstan "On the State of Emergency", the commandant of a locality is an official appointed by the President of the Republic of Kazakhstan, who directs the activities of the commandant's office of the locality where the state of emergency has been introduced, and carries out unified management of forces and means ensuring the state of emergency. According to Article 13 of the Law of the Republic of Kazakhstan "On the State of Emergency", a representative of the Ministry of Internal Affairs of the Republic of Kazakhstan is appointed as the district commander in case of mass riots; interethnic and interfaith conflicts; the blockade or seizure of certain areas, particularly important and strategic facilities by extremist groups; the training and activities of illegal armed groups." In case of acts of terrorism, according to the same article, a representative of the National Security Committee of the Republic of Kazakhstan is appointed as the commander of the area. The crime provided for in Article 269 of the Criminal Code of the Republic of Kazakhstan, according to paragraph 30) of Article 3 of the Criminal Code of the Republic of Kazakhstan belongs to the category of terrorist crimes. What measures were taken by the Almaty city commandant's office, why even law enforcement officers, based on the testimony of the victims H.Sh.E. and T.Zh.Kh., witnesses T.A.G., B.E.A., and M.M.G. did not know that a state of emergency had been declared in Almaty, the court did not establish. The court did not establish what evidence supports the prosecution's arguments that the population was warned about the ban on movement in the Republic Square area through SMS messages or television broadcasts, and there are no supporting documents from mobile operators or TV channels in the case. Representatives of the victims B.A.E. and C.T.K. during the main trial explained to the court that the SMS notification began to arrive only on January 7, 2022.
Who was in direct charge of the law enforcement officers guarding the building of the Almaty city Akimat, why this person was not questioned, why there are no written documents in the case with information about the deployment of forces and means of law enforcement agencies on January 5, 2022, if the state of emergency was introduced from 01.30 a.m. on January 5, and none of the victims and witnesses He said that they had been informed about this, and it was also not established by the court. The court did not establish which expert or specialist conclusions allow it to be concluded that the destruction, destruction of property, damage caused to the property of individuals and legal entities, as well as to the Akimat of Almaty and JSC Halyk Bank of Kazakhstan were caused by K.A.T.'s actions or are in direct causal connection with his actions. It has not been established by the court verdict how K.A.T. entered the building of the Akimat of Almaty and what he did there, and what happened in the branch of the People's Bank after an unknown person damaged the surveillance camera. Arguments of K.A.T. The fact that he came to Republic Square in front of the Almaty city Akimat building with peaceful intentions and entered the Akimat building in order to help law enforcement officers avoid reprisals from an aggressive crowd has not been refuted by anyone or anything. His arguments in this part were confirmed at the confrontation and during the main trial by the victims T.Zh.Kh. and H.Sh.E., however, the court did not give them a legal assessment. All of the above circumstances raise doubts about the objectivity and impartiality of the court, suggesting that the court sided with the prosecution, without the intention of establishing the truth in the criminal case. In addition to the above arguments, rejecting the satisfaction of the civil claim of the victim of Halyk Bank of Kazakhstan JSC, the court stated in the verdict that no evidence had been established in the case confirming that the defendant had committed K.A.T. damage or destruction of the property of Halyk Bank of Kazakhstan JSC. According to part 3 of art . 71 CPC RK – "If during the criminal process it is established that there are no grounds for his stay in this position, the body conducting the criminal process, by its decision, terminates the participation of the person as a victim." However, the court did not terminate the participation of Halyk Bank of Kazakhstan JSC in the criminal case as a victim. According to Part 2 of Article 25 of the Criminal Procedure Code of the Republic of Kazakhstan, "no evidence has a pre-determined force." 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." According to Part 4 of Article 19 of the Criminal Procedure Code of the Republic of Kazakhstan, "A conviction cannot be based on assumptions and must be supported by a sufficient set of acceptable and reliable evidence." In accordance with Part 6 of Article 125 of the Criminal Procedure Code of the Republic of Kazakhstan, "The totality of evidence is considered sufficient to resolve a criminal case if acceptable and reliable evidence is collected that establishes the truth about each and every one of the circumstances to be proved without any doubt and indisputably." It follows from the provisions of Article 19 of the Criminal Code of the Republic of Kazakhstan that a person is subject to criminal liability only for those socially dangerous acts (actions or omissions) and socially dangerous consequences that have resulted in which his guilt has been established; objective imputation, that is, criminal liability for innocent harm, is not allowed. According to Article 394 of the Criminal Procedure Code of the Republic of Kazakhstan, "an acquittal is pronounced if the defendant's involvement in the commission of a criminal offense is not proven." The defense believes that evidence clearly indicating the involvement or direct commission of crimes by A.T. Kurdjieff has not been established in the trial and in the court verdict. The court issued a guilty verdict, grossly violating the above-mentioned requirements of the articles of the Criminal Procedure Code of the Republic of Kazakhstan and the Criminal Code of the Republic of Kazakhstan, despite the lack of clear evidence. The existence of doubts about K.A.T.'s guilt, existing in the case, which must be interpreted in favor of the defendant, according to Part 3 of art. 19 of the CPC RK, the court, on the contrary, interpreted against K.A.T., finding him guilty without evidence. The totality of the available written evidence and the testimony of the victims and witnesses in the case is insufficient to establish the guilt of the defendant K.A.T. in the acts charged against him. In accordance with Article 19 of the Criminal Procedure Code of the Republic of Kazakhstan, a conviction cannot be based on assumptions.
Appeal against the verdict of the District Court
Based on the above, the defense asks the judicial board: - Verdict of the District Court No.2 of the Bostandyk district of Almaty to cancel and acquit K.A.T. of the crimes provided for in Articles 272 part 2, 269 part 2, paragraphs 1, 3, 6, Article 380 part 3, paragraphs 1,4,8,9 due to the lack of evidence of his participation in the commission of a criminal offense. - Recognize K.A.T.'s right to rehabilitation. - Terminate the participation of Halyk Bank of Kazakhstan JSC as a victim in a criminal case. 11.11.2022
Lawyer: Sarzhanov G.T.
Lawyer: Nigmetov S.D.
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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