CASSATION APPEAL for Review of the Judgment of the Inter-District Court for Criminal Cases and the Ruling of the City Court

TO THE CASSATION COURT FOR CRIMINAL CASES

37 Beibitshilik Street, Saryarka District, Astana

8 7172 55 92 03.

Victim: KRA

IIN: ....

Resident of ...., Shymkent.

Representative under a Power of Attorney:

Law Firm “Zakon i Pravo”

BIN 201240021767.

Advocate Galymzhan Turlybekovich Sarzhanov

Republic of Kazakhstan, 050002, Almaty,

Almaly District, 79/71 Abylai Khan Avenue, Office 304.

info@zakonpravo.kz www.zakonpravo.kz

+7 708 578 57 58 / 8 727 971 78 58.

CASSATION APPEAL

for Review of the Judgment of the Inter-District Court for Criminal Cases of Shymkent dated 29 July 2026 and the Ruling of the Judicial Panel for Criminal Cases of the Shymkent City Court dated 9 September 2026

By the judgment of the Inter-District Court for Criminal Cases of Shymkent dated 29 July 2026, A Sh.D. was found guilty of committing a criminal offense предусмотренного by subparagraph 3) of paragraph 3 of Article 188 of the Criminal Code of the Republic of Kazakhstan (hereinafter — the “Criminal Code”), and was sentenced to restriction of liberty for a period of 2 years.

The court of first instance, applying the Amnesty Law, reduced the sentence to 1 year and 6 months of restriction of liberty.

The victim's side filed an appeal against the said judgment, stating that the sentence imposed on the convicted person was unjustifiably lenient, that the evidence examined in the case had not been given a full legal assessment when resolving the civil claim, and that other material circumstances established during the trial had been disregarded. The appeal requested that the judgment of the court of first instance be set aside, that A be sentenced under subparagraph 3) of paragraph 3 of Article 188 of the Criminal Code to 7 years of imprisonment, and that the victim's civil claim be granted in full.

By the ruling of the Judicial Panel for Criminal Cases of the Shymkent City Court dated 9 September 2026 No. 5299-26-00-1а/393, the appeal filed by the victim's representative was dismissed. At the same time, the judicial panel established that the court of first instance had incorrectly applied the Amnesty Law and, conversely, reduced the sentence of the convicted person to 1 year and 4 months of restriction of liberty.

We disagree with the said judicial acts and consider that they are subject to review in cassation proceedings on the following grounds.

Pursuant to Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan dated 29 May 2025 “On the Application of Legislation Regulating the Consideration of Criminal Cases in Cassation Proceedings,” incorrect application of criminal and criminal procedural laws provided for by paragraphs one and two of Article 485 of the Criminal Procedure Code (hereinafter — the “CPC”) constitutes grounds for reviewing judicial acts that have entered into legal force in cassation proceedings. At the same time, the said Regulatory Resolution expressly explains the right of the victim and his representative, including the right to file a cassation appeal under subparagraph 4) of paragraph one of Article 485 of the CPC where an incorrect resolution of the civil claim affected the correctness of the resolution of the criminal case on its merits.

1. The appellate court failed to provide a full response to the victim's specific arguments and failed to remedy the deficiencies committed by the court of first instance in assessing the evidence.

One of the principal arguments of the appeal was that, when resolving the civil claim, the court of first instance failed to provide a full and comprehensive legal assessment of the evidence directly examined in court.

The victim's side pointed to this not in abstract terms, but by relying on the testimony of specific witnesses.

At the court hearing on 14 July 2026, witnesses D.A., A.A. Berkinbaikyzy, T.B.M., T.N.Sh. and N.N.A. testified that they had maintained business relations with the victim for a long period of time, regularly supplied him with fruit and vegetable products in wholesale quantities on deferred-payment terms, and that beginning in January 2026 the victim's indebtedness to them had sharply increased.

In addition, a number of other witnesses testified that the victim was a major wholesaler, that his financial position had deteriorated beginning in January 2026, that his indebtedness to suppliers had increased, and that during this period A had been selling fruit and vegetable products at prices below the prevailing market prices.

Pursuant to Article 124 of the CPC, evidence collected in a case must be examined comprehensively and objectively; such examination includes analysis of the evidence, comparison thereof with other evidence, and verification thereof. Article 125 of the CPC requires each item of evidence to be assessed in terms of its relevance, admissibility and reliability, and all evidence taken together in terms of its sufficiency for resolving the case.

However, instead of analyzing the specific testimony of the witnesses, the court of first instance limited itself to stating that they had “given testimony similar in meaning” to the testimony of the defendant and the victim. The testimony of N.N.A. given in court was not given proper assessment at all in the reasoning part of the judgment. This issue was specifically raised in the appeal.

The appellate court did not remedy this deficiency.

The judicial panel did not analyze the testimony of each of the above witnesses, did not indicate which parts of their testimony it accepted and which parts it rejected, and did not explain why it considered that their totality failed to establish the amount of damage claimed in the civil claim and the causal relationship between the actions of the convicted person and the damage caused.

Instead, the appellate ruling contains a general conclusion that the remaining material claims of the victim relate to business activities arising from January 2026, obligations to suppliers and banks, and that it had not been established that they constituted damage directly caused by A as a result of the commission of the criminal offense.

However, the ruling does not indicate on the basis of what evidence and assessment thereof this conclusion that such circumstances had “not been established” was reached.

Thus, the deficiency in the assessment of evidence committed by the court of first instance was not remedied by the appellate court but was effectively repeated.

Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan dated 20 April 2006 permits appellate and cassation courts to use as evidence specific facts examined by the court of first instance and to examine and assess them. Consequently, where the appellate court identified deficiencies in the assessment conducted by the court of first instance, it had the procedural ability to remedy those deficiencies itself.

2. The courts failed to assess the thefts established as having been committed between 18 and 24 March in conjunction with the other evidence supporting the civil claim.

The judicial acts establish that between 18 and 24 March 2026, A found the key to Store No. 17 belonging to the victim and, using that key, unlawfully entered the store several times and secretly stole goods.

His guilt was confirmed not only by his own testimony, but also by the testimony of the victim and witnesses, video surveillance recordings, the history of the Kaspi Gold account, calculations relating to the goods, WhatsApp correspondence and other evidence.

This was not a single, accidental act.

The repeated entry into the same store over several days, the use of the key, and the systematic removal of goods are specific facts established by the courts.

Therefore, the testimony of witnesses that, beginning in January 2026, goods belonging to the victim began disappearing, sales turnover decreased, and indebtedness to suppliers increased should not have been considered separately from the established facts of multiple thefts committed in March.

We do not assert that every theft episode committed beginning in January 2026 has been conclusively proven.

The issue is different.

The totality of the evidence submitted by the victim's side — the sharp deterioration of the financial position beginning precisely during this period, the disappearance of goods, the increase in indebtedness to suppliers, the sale of goods by the convicted person at below-market prices, and the method of committing multiple thefts subsequently specifically confirmed by video surveillance — should have been assessed in conjunction with one another.

The very essence of Article 125 of the CPC requires evidence to be assessed not in isolation from one another, but in its totality.

However, such an assessment in its totality was carried out neither in the judgment of the court of first instance nor in the appellate ruling.

3. The appellate court stated that the civil claim had not been proven, but failed to indicate why the evidence supporting it was insufficient.

According to the principal conclusion of the appellate court, the remaining portion of the material damage in the amount of KZT 15,078,258 falls outside the scope of the charge and it was not established that such damage had been directly caused by the criminal offense in question.

However, in this regard the court failed to distinguish between two different issues.

The first is the scope of the charge brought against the convicted person.

The second is the amount of property damage resulting from the proven criminal acts.

Paragraph 1 of Article 166 of the CPC provides for the consideration in criminal proceedings of civil claims for compensation for property and moral damage directly caused by a criminal offense, as well as expenses incurred for representation and participation in court proceedings.

The appellate court itself cited this provision in its ruling.

Therefore, the task of the court was not merely to resolve the civil claim based on whether the amount thereof was literally stated in the charge, but to determine, on the basis of the totality of the evidence, whether there was a direct causal relationship between each claimed loss and the proven criminal acts.

The court is entitled to find that such a relationship does not exist.

However, in order to do so, the court must assess the specific evidence examined at trial and provide reasons why such evidence is insufficient to establish the causal relationship.

This was not done.

The cassation significance of this issue is particularly important because paragraph 6 of Regulatory Resolution No. 1 of the Supreme Court dated 2025 expressly includes the incorrect resolution of a civil claim filed by a victim among the violations that may constitute grounds for cassation review of a judicial act under subparagraph 4) of paragraph one of Article 485 of the CPC.

4. The conclusion concerning the convicted person's “genuine remorse” when imposing the sentence was not properly examined.

The appellate panel found it correct that the court of first instance had taken A's genuine remorse, compensation for the damage, and the fact that he had minor children into account as mitigating circumstances.

However, the position of the victim's side concerned not merely whether the convicted person had admitted his guilt, but when and under what circumstances such admission had been made.

The case raised the issue that the convicted person's full admission of his actions occurred after video recordings objectively confirming his criminal acts had been attached to the case file.

In such circumstances, the courts should have assessed whether genuine remorse was limited to a formal admission of guilt or whether the person's actual conduct after the commission of the crime demonstrated genuine remorse.

The appellate panel did not provide a separate legal assessment of this argument, limiting itself to repeating the mitigating circumstances identified by the court of first instance.

At the same time, the judgment itself establishes that A repeatedly entered unlawfully and systematically stole another person's property.

All these circumstances should have been taken into account in their totality when assessing the nature and degree of public danger of the criminal offense and the offender's conduct after the commission of the crime pursuant to Article 52 of the Criminal Code.

Therefore, we consider that no full response was given to the specific arguments of the victim's side regarding the sufficiency of the grounds for imposing one of the most lenient types of punishment within the applicable sanction.

5. As a result of the appellate review, the sentence imposed on the convicted person was, conversely, reduced following the victim's appeal.

In the appeal, the victim requested that the sentence imposed on the convicted person be increased.

However, the appellate court not only dismissed the victim's appeal, but, on the ground that the court of first instance had incorrectly applied the Amnesty Law, changed the portion of the sentence subject to reduction from 1/4 to 1/3 and ultimately reduced the sentence from 1 year and 6 months to 1 year and 4 months of restriction of liberty.

In this regard, we do not limit ourselves to disputing the necessity of applying the relevant provision of the Amnesty Law itself.

The principal issue is that, without fully examining the specific arguments of the victim concerning the unjustified leniency of the sentence, the appellate panel instead adopted a decision that further improved the legal position of the convicted person.

Accordingly, we consider that the cassation court should re-examine how the requirements of Articles 52 and 53 of the Criminal Code were specifically applied by the courts of first instance and appeal, the factual basis for the circumstance of “genuine remorse,” and whether the sentence imposed corresponds to the nature and degree of public danger of the crime.

6. The violations committed were not formal in nature but directly affected the outcome of the case.

This appeal does not seek review of the judicial acts merely on the basis of a desire to have the evidence assessed differently.

The issue concerns the failure to provide a legal assessment of part of the material evidence directly examined by the court, the absence of reasoning as to why there was no causal relationship with respect to a substantial part of the civil claim, the failure to fully examine the specific arguments raised in the victim's appeal, and the failure to properly analyze the factual basis of the mitigating circumstances that affected the sentence imposed.

Articles 124 and 125 of the CPC require evidence to be examined comprehensively, fully and objectively and assessed both individually and in its totality.

Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan also permits appellate and cassation courts to examine and assess facts examined by the court of first instance.

Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan dated 29 May 2025 explains that the list of grounds provided for in paragraphs one and two of Article 485 of the CPC is exhaustive and that, in cases involving serious, particularly serious and moderately serious offenses, a victim has the right to apply directly to the cassation court on the grounds provided for in paragraph one of Article 485 of the CPC.

In this case, the incorrect resolution of the civil claim and the failure to comply with the requirements for assessing the evidence affecting its resolution constitute a substantial procedural violation subject to cassation review under subparagraph 4) of paragraph one of Article 485 of the CPC.

Furthermore, the issue of worsening the position of the convicted person was directly raised by the victim's side before the appellate court as well. Our appeal expressly requested that a sentence of 7 years of imprisonment be imposed. Therefore, this request is not being raised for the first time before the cassation court.

Pursuant to Article 487 of the CPC, an appeal for review of a judicial act that has entered into legal force on grounds that worsen the position of the convicted person must be filed within one year after the judicial act enters into legal force.

In view of the foregoing, guided by Articles 484–488 and 494 of the Criminal Procedure Code of the Republic of Kazakhstan, Regulatory Resolutions No. 1 of the Supreme Court of the Republic of Kazakhstan dated 29 May 2025 and No. 4 dated 20 April 2006,

WE REQUEST THE JUDICIAL PANEL TO:

· cancel the ruling of the Judicial Panel for Criminal Cases of the Shymkent City Court dated 9 September 2026 No. 5299-26-00-1а/393;

· amend the guilty judgment of the Inter-District Court for Criminal Cases of Shymkent dated 29 July 2026 No. 5241-26-00-1/1103 in the criminal case, namely, issue a new guilty judgment against A Sh.D. under subparagraph 3) of paragraph 3 of Article 188 of the Criminal Code of the Republic of Kazakhstan and impose a sentence of 7 (seven) years of imprisonment;

· grant the civil claim of the victim K..y. in full and order the civil defendant A Sh.D. to pay:

o KZT 15,078,258 (fifteen million seventy-eight thousand two hundred fifty-eight) in material damage;

o KZT 2,000,000 (two million) in moral damage;

o KZT 2,450,000 (two million four hundred fifty thousand) in court expenses related to the assistance of the representative,

and issue a new judicial decision.

· consider the cassation appeal with the participation of the victim K.R.A. and his representative, Advocate Galymzhan Turlybekovich Sarzhanov.

Respectfully,

Representative under a Power of Attorney, Advocate: G.T. Sarzhanov

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