Appeal to the judicial board on criminal cases on the cancellation of the court decision on the sanction of a preventive measure in the form of custody

The Judicial Board of the Turkestan regional court for criminal cases

Turkestan city, 160 block, 498

8-725-33-59-704, 8 (701) 567-83-92

725-2460@sud.kz , 130203@sud.kz

From The Defender: Lawyer Sarzhanov Galymzhan Turlybekovich

Legal Office" law and law"

IIN 201240021767.

Republic of Kazakhstan, 050002, Almaty,

Almaly district, Abylai Khan Ave., house 79/71, office 304.

www.zakonpravo.kz info@zakonpravo.kz

Tel.: +7 708 578 57 58 / 8 727 978 57 55.

Suspect: MCI

Yin ...

Turkestan region, Maktaaral district,..... village, Zhastar Street, house 12.

Complaint

(Based on Article 107 of the Criminal Code of the Republic of Kazakhstan)

The Republic of Kazakhstan, having established itself as a democratic, secular, legal and social state, its highest values are man, human life, rights and freedoms (paragraph 1 of Article 1 of the Constitution).

At the same time, everyone has the right to protect their rights and freedoms by all means that do not contradict the law and receive qualified legal assistance (paragraphs 1 and 3 of Article 13 of the Constitution).

On April 21, 2025, with the participation of the investigating judge of the Maktaaral District Court of the Turkestan region E. Slambekov, the prosecutor of the maktaaral District Prosecutor's office E. Sarzhan, the suspect Aekanatbaevich, the defense lawyer G. Sarzhanov, at an open court session, the decision was made using audio and video recording:

To satisfy the request of the investigator of the maktaaral District Police Department D. Zhaksylyk to sanction the application of a preventive measure in the form of detention in relation to the suspect Esen Kanatbaevich aka.

To extend the preventive measure in the form of "detention under guard" for 3 /third/ month, that is, until 23 hours 05 minutes on May 28, 2025, the name of Esen Kanatbaevich, suspected by Part 2 of Article 174 of the criminal code.

Execution of the decision concerning the suspect Esen Kanatbaevich AKA is entrusted to the person carrying out the pre-trial investigation.

Dear court, we do not agree with the decision of this court, because there is no reason to arrest the suspect Aekanatbaevich. the suspect is A E. K., has not been previously convicted, has not been prosecuted, has a permanent place of residence, and is identified. The suspect, A E. K., does not intend to hide from the prosecution authorities or the court, or to interfere with an objective investigation of the case or its trial in court.

In addition, the suspect A. K., The only breadwinner of his family, a dikhanist, married, legally married spouse: Ospanova Dinara Nurzhanovna, who has 5 (five) minor children from a common marriage (engaged in child support at home):

1. AA Asiya Yesenovna born on 15.12.2013

2. AA Aisha Yesenovna born 26.05.2015

3.K.. Ali Yesenovich born on 10.10.2017

4.K.. Omar Yesenovich born on 24.11.2020

5.K... Abdullah Yessenovich born on 23.08.2022

We also believe that the actions of the suspect E. K. are not properly classified, and his actions do not contain the composition of the criminal offense provided for by Part 2 of Article 174 of the Criminal Code of the Republic of Kazakhstan.

If we carefully study the matreials of the criminal case, the group of persons named E. K., deliberate actions aimed at inciting religious discord by preliminary collusion, insulting the National Honor and dignity or religious feelings of citizens, as well as attempts to promote their exclusivity, superiority or incompleteness on the basis of attitude to religion, gender-group, National, Tribal or racial affiliation of citizens are not identified.

E. K. did not use public or mass media, telecommunications networks and online platforms in his actions, nor did he commit any actions in the preparation or dissemination of literature or other information carriers promoting religious discord, and the investigation did not identify such actions.

The court provided the investigation with the following information in the inquiry part of its decision: “the suspect E. A. from 01.07.2024 to 01.01.2025 was born on 23.06.1991 by his acquaintance, a resident of the House No. 11b, Kazakhstan Street, Atakent Village, Maktaaral district. Together with Baglan Yerzhanovich Musabekov, 40 people in the group "Atakent Brothers" on the social network "watsap" deliberately committed the crime of inciting religious discord by repeatedly distributing sermons of Dilmurat Abu-Muhammad "Dilmurat Makhamatov and" Nazratullah Abu-Mariam "prohibited by law to promote the religion of negative orientation. "what's the matter?"

However, the court of inquiry, unfortunately, did not pay attention to the arguments of the defense attorney, without determining which religion of negative orientation is kanadai and which current religion, what actions the suspect caused religious discord with his actions, what kind of sermons of Dilmurat Abu-Muhammad and Nazratullah Abu-Mariam were banned by the NPA of the Republic of Kazakhstan or judicial acts.

You can find the following information in a criminal case of your own production: “suspect E. A. from 01.07.2024 to 01.01.2025 his acquaintance was a resident of the House No. 11b, Kazakhstan Street, Atakent Village, Maktaaral district, born on 23.06.1991. Together with Baglan Yerzhanovich Musabekov, 40 people in the group "Atakent brethren" and "Brethren" on the social network "watsap" deliberately committed crimes related to the property of a serious category by causing religious discord by repeatedly distributing the sermons of "Dilmurat Abu-Muhammad" Mahamatov Dilmurat and "Nazratullah Abu-Mariam"prohibited by law to promote the religion of a negative orientation. "you're right."

March 6, 2025 Aekanatbaevich's actions were classified under Part 2 of Article 174 of the Criminal Code of the Republic of Kazakhstan.

Article 31 of the code of criminal procedure. As for the concept of” criminal liability for criminal offenses committed by a group", then the code recognizes a criminal offense committed by a group of persons if two or more performers jointly participate in the commission of a criminal offense without prior collusion. - it is said

It is said that if a criminal offense involves persons who have previously agreed to commit it jointly, it is recognized as a criminal offense committed by a group of persons by preliminary conspiracy.

In order to comprehensively investigate these motives, at the request of the defense counsel of 20.04.2025, an additional interrogation of E. K. Atan in my defense was received, as a result of the interrogation, as well as based on the answers of other suspects, the investigation did not find a place in the assumption that the members of the group

In particular, it was found that members of the group "Atakent brethren" and "Brethren" in the social network "watsap", each consisting of 40 people, sent sermons from the Open Social Network "Dilmurat Abu-Muhammad" Makhamatov Dilmurat and "Nazratullah Abu-Mariam"to the group on the social network watsap voluntarily, voluntarily, not at the request or suggestion of any member of the group.

So, based on these arguments, we believe that Aekanatbaevich's actions do not contain the composition of a crime under Part 2 of Article 174 of the Criminal Code of the Republic of Kazakhstan, and it is necessary to re-qualify under Part 1 of Article 174 of the Criminal Code of the Republic of Kazakhstan.

In addition, 03.04.2025 in the pre-trial detention center E. K. Apen during the discussion of this protocol, the answers given in it, the investigation revealed a gross violation of Section 4 of Article 216 of the criminal legislation of the Republic of Kazakhstan.

In fact, on March 1, 2025, at 15 o'clock. From 35 minutes to 16 hours. During the interrogation of the suspect within 10 minutes, it was found that the defender was not present, and we believe that the signature of S. Aknazarov, called as a defender in the protocol, was put later or with another person.

So, the investigator of the Criminal Code of the Republic of Kazakhstan 60-64, 80, 81, 110, 115, 197, 199, 208-210, 212, 216 it is established that the interrogation was carried out in violation of the requirements of the code without compliance with the norms of articles.

Article 64 of the Criminal Code of the Republic of Kazakhstan. When detaining a suspect, before starting any investigative actions in the presence of a suspect, the criminal prosecution body is obliged to immediately explain to the suspect his rights provided for by this code, a note is made in the protocol of interrogation of the suspect and in resolutions on recognizing the person as a suspect and qualifying the actions of the suspect.

However, on the part of the investigation, the provisions of this article were drawn up formally and, in fact, the rights of the suspect before interrogation were not explained.

Factual data inadmissible as evidence in accordance with Article 112 of the CPC, if they are obtained in violation of the requirements of this code, contribute or may contribute to the reliability of factual data obtained during a pre-trial investigation or trial of a case by depriving the participants in the process of rights guaranteed by law or by: Factual data obtained in violation of Criminal Procedure Law shall be recognized as inadmissible data as evidence and shall not be subject to prosecution, nor shall they be used in proving any circumstances specified in Article 113 of this code.

In accordance with Section 3 of Article 60 of the Criminal Code of the Republic of Kazakhstan, the investigator is obliged to carry out criminal prosecution by taking all measures for a comprehensive, complete and objective study of the circumstances of the case.

However, on April 09, 2025, the investigator issued a resolution on the refusal to satisfy the petition letter in which the investigator stated in the inquiry part of his resolution: “the claim of the defense lawyer Sarzhanov Galymzhan Turlybekovich is subject to rejection. Because on March 1, 2025, at 15 o'clock. From 35 minutes to 16 hours. Within 10 minutes, when filling out the protocol of interrogation of the suspect E. Atan, S. A. was involved as a defender of the name E. K..

In the course of the engagement, the web was signed together with the defense attorney S. A., who interrogated the suspect E. K. Atan with the ERDR system. In the process of interrogating any person in the web-based ERDR system, it is not possible to re-sign the process protocol after signing it in electronic form."I don't know," he said.

However, the investigator, without taking into account the circumstances given by the defense, without taking all measures for a comprehensive, complete and objective study of the circumstances of the case, considers the case unilaterally and commits a violation, adhering only to the side of the prosecution of the suspect.

In accordance with Article 1 of the Constitutional Law of the Republic of Kazakhstan" on the prosecutor's office", the prosecutor's office on behalf of the state exercises High supervision over compliance with the rule of law in the territory of the Republic of Kazakhstan within the limits and forms established by law. In accordance with Article 5 of the law, the prosecutor's office carries out high supervision of the rule of law (hereinafter referred to as supervision).

Based on this, we applied to the prosecutor's office, however, based on the above, the prosecutor's office in the process of checking our stated motives:

1) video recording tape located in the investigator's office on March 1, 2025, at 15 hours. From 35 minutes to 16 hours. During the interrogation of the suspect E. Atan within 10 minutes, the information captured from the videotape is obtained;

2) March 1, 2025, 15 H. From 35 minutes to 16 hours. Within 10 minutes, the defense attorney, who participated in the investigation, made a detealization to the phone number of S. A. to establish the presence or absence of the defense attorney in the territory of the communication operator's link belonging to the police department during the investigation.

we asked the prosecutor's Office to conduct this case in the hope that it would be possible to achieve the truth.

         However, in the resolution of the prosecutor of Maktaaral District of April 17, 2025, senior adviser of Justice Dosayev A. T., on the refusal to satisfy the complaint, there is no report on the conduct of the actions proposed by the Defense party, while the prosecutor stated that "the Defense's arguments for recognizing the protocol of interrogation of the suspect E. K. as illegal and excluding him from the list of evidence are not supported by objective data." "I don't know," he said.

         The defender's competence does not include obtaining a phone number for detealization and obtaining an audio and video recording of the APB. In this case, it is a gross violation of the law on the part of the prosecutor's office that the prosecutor's office, within the limits of its competence, did not obtain materials exposing the illegal actions of the investigator, while it was possible to carry out detealization of the phone number and obtain an audio video recording of the APB.

If the prosecutor's office had obtained these materials and presented evidence with the same materials, then there would be no doubt about the defense. The defense attorney is not obliged to prove questionable procedural actions in the case, but the prosecutor is obliged to investigate questionable tregu actions.

In accordance with Article 77 of the Constitution of the Republic of Kazakhstan and Article 19 of the Criminal Code of the Republic of Kazakhstan, everyone is considered innocent until his guilt in committing a criminal offense is proven in accordance with the procedure provided for by this code and established by a court verdict that has entered into legal force. No one is obliged to prove their innocence.

Unresolved doubts about the guilt of the suspect, accused, defendant are interpreted in their favor. Doubts arising in the application of criminal and criminal procedure laws must also be resolved in favor of the suspect, accused, defendant.

Judicial acts cannot be based on assumptions and must be supported by a sufficient set of admissible and clear evidence.

         The suspect did not personally record the above-mentioned roller, but copied the link below from the YouTube social network, where he posted the roller openly

The content of the offense was not revealed in the video, which was shared by e-siteme, which was sent to the group on the WhatsApp network.

Taking into account the above-mentioned motivation, there was an abuse of trust on the part of the investigative court, according to the evidence submitted to the investigative court, the suspect E. K. name has grounds for release, the suspicion of committing a criminal offense is not confirmed, there are no grounds for applying a preventive measure in the form of arrest.

In accordance with Part 2 of Article 138 of the Criminal Procedure Code of the Republic of Kazakhstan (circumstances taken into account when choosing a preventive measure and establishing additional restrictions) on the grounds specified in Article 136 of the Code of Criminal Procedure, the suspect does not intend to hide from the criminal prosecution authorities or the court, to prevent an objective investigation of the case, its consideration in court,

Under Part 1-1 of Article 136 of the criminal Criminal Procedure Code of the Republic of Kazakhstan. When choosing a preventive measure for a suspect, we ask you to consider the possibility of applying a preventive measure not related to isolation from society, taking into account the above-mentioned circumstances, if possible.

There are no sufficient grounds to believe that the suspect is hiding from the criminal prosecution authorities or the court, or interferes with an objective investigation or discussion of the case in court, or continues to engage in criminal activity.

In accordance with Article 107 of the Criminal Code of the Republic of Kazakhstan, a suspect, his lawyer, legal representative, victim, his legal representative, representative, a person whose rights and freedoms are directly affected by the act of the investigating judge, has the right to appeal against the decision, sanction of the investigating judge on the detention of a suspect and other investigative actions.

Based on the above, in accordance with Article 107 of the Criminal Code of the Republic of Kazakhstan,

I ASK THE COURT:

* Cancellation of the decision of the investigative judge of the Maktaaral District Court of Turkestan region of April 21, 2025 on the sanction of a preventive measure in the form of "detention under guard" in relation to the suspect E. K. Slambekov;

* Release the suspect E. K. from the pre-trial detention center and apply a preventive measure against him that is not related to the arrest.

With respect,

Defender G. T. Sarzhanov

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