Changing the qualification of the suspect's act | The act of prosecutorial response and/or acts of prosecutorial supervision | Complaint against the investigator's decision
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To the Prosecutor General of the Republic of Kazakhstan Asylov Berik Nogaiuly
Nur-Sultan city, 010000, Mangilik El Avenue, 14.
From the Defender: Galymzhan Turlybekovich Sarzhanov Law Firm and Law
BIN 201240021767 Almaty, 79 Abylai Khan ave., office 304.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 978 5085; +7 708 578 5758. In the interests of the Suspect CAT: 05/26/1977, born
Claim
on the new resolution on the qualification of the suspect's actions
The reason for our appeal to you was the blatant injustice and lawlessness of the pre-trial investigation of criminal case No. 220088011000003 against K.A.T., based on the elements of a criminal offense provided for in art. 272 part 2 of the Criminal Code of the Republic of Kazakhstan. The interdepartmental investigative task force of the Prosecutor General's Office of the Republic of Kazakhstan (hereinafter referred to as the ICOG GP RK) is investigating criminal case No. 220088011000003, which was previously registered with the ERDR on grounds of a criminal offense under Article 255 Part 4 of the Criminal Code of the Republic of Kazakhstan. On January 06, 2022, the Special Prosecutors Service launched a pre-trial investigation No. 220088011000003 on this fact under art. 255 part 4 of the Criminal Code of the Republic of Kazakhstan. (Act of terrorism) Thus, during the investigation of this criminal case, it was established that one of the persons involved in the mass riots is K.A.T., born on 05/26/1977, who was detained on 04/09/2022 in accordance with Article 131 of the Criminal Procedure Code of the Republic of Kazakhstan and placed in the IVS of the Al Maty DP. On 04/11/2022, the acts of the suspect K.A.T. were qualified under art.272 part 2 of the Criminal Code of the Republic of Kazakhstan. (Mass riots). The pre-trial investigation of the present criminal case was entrusted to the investigator of the State Committee for National Security of the Republic of Kazakhstan in Almaty to Captain of National Security M.A.B.
Changing the qualification of the suspect's act | The act of prosecutorial response and/or acts of prosecutorial supervision | Complaint against the investigator's decision
On August 01, 2022, the Head of the interdepartmental investigative task force, Deputy Head of the Special Prosecutors Service of the Prosecutor General's Office, E.A. Sagiev, having reviewed the materials of the pre-trial investigation No. 220088011000003, decided: To classify the act of the suspect(s) K.A.T., born on 26.06.1977, place of birth of the Republic of Kyrgyzstan according to this pre-trial investigation under art. 269 h.2 p.p. 1,3,6; 380 h.Z p.p. 1,4,8,9 of the Criminal Code of the Republic of Kazakhstan. Which was agreed upon by Senior Assistant to the Prosecutor General of the Republic of Kazakhstan Pusurmanov Ch.B. Dear Berik Nogaiuly, we disagree with the charges against my client. My client, K.A.T., has no previous convictions, has not been brought to criminal responsibility, has a permanent place of residence, his identity has been established. K.A.T., does not intend to hide from the criminal prosecution authorities or the court, or to obstruct an objective investigation of the case or its trial in court. In addition, K.A.T. has 4 minor children, preschool and school age, from a civil marriage with his spouse from K.Z.B.:
K.A.A. born on 16.10.2009;
K.A.A. born on 04/19/2013;
K.I.A. born on 26.10.2014;
K. A. born on 07/10/2020
The pre-trial investigation body believes that the suspect has committed a number of intentional serious criminal offenses against public safety and public order in Galmata. Thus, according to the versions of the Pre-Trial Investigation Body, on January 5, 2022, around lunchtime, K.A.T., being at the intersection of Baitursynov and Tolebi streets in Almaty, saw participants in mass riots who committed violence, pogroms, arson, destruction, destruction of property, as well as armed resistance to government officials and set fire to administrative buildings the city of Almaty. – However, K.A.T. himself, in the video interrogation Protocol dated April 09, 2022, explained that he was at home on January 05, 2022, when he woke up, he saw that Aldiyar's son was not at home, to which he called his son and asked where he was, where his son replied that he was in the park, located on At the intersection of Nauryzbai-Batyr - Karasai-Batyr, to which he began to be indignant that rallies were taking place in the city, he told him to come home quickly, while he ran out to a meeting. When he was running before reaching Baitursynova Street, his phone fell out somewhere, there were a lot of people and he started looking for his phone to call his son. He asked an elderly man passing by to give him his phone so that he could call his phone, called 3-4 times on the phone, but no one picked it up. Then K.A.T. ran to meet his son, and he asked the unknown man for a phone again and called his son, but at that time he was already at home.
After that, there was a march along Tole-bi Street towards the center and then followed them when I came to the center there were a lot of people there. There was a cordon of government representatives along Satpayev Street at the intersection of Nazarbayev Street, and some protesters were aggressive. At that time, two police officers from the authorities came out and wanted to join the protesters, whom the protesters aggressively attacked, to which K.A.T. covered them with himself and protected them. One employee had his head smashed in, and K.A.T. took him to a safe place and bandaged his head. In addition, the pre-trial investigation authorities claim that K.A.T., at about 2:50 p.m., was on the first floor of the akimat building. Al maty, along with other participants in the mass riots, saw in the corridor a uniformed policeman, T.J.H., who entered the office, choosing life and health as the subject of his criminal encroachment, as well as management procedures, K.A.T., acting intentionally, went after T.J.H., after which, in order to carry out his of criminal intent, wishing to cause physical damage to a representative of the authorities in the person of T.J.H., taking advantage of the numerical superiority of participants in mass riots, acting as a group with unidentified persons, He tore the shoulder straps from his left shoulder from his uniform and used physical violence dangerous to life and health, in particular, K.A.T. struck one blow with his right hand in the area of T.Zh.Kh.'s head, thereby hindering the performance of his official duties, undermining his authority and causing damage to his health – according to the arguments of the pre-trial body. Investigations we disagree on the following testimony of K.A.T. in the interrogation Protocol, where K.A.T., after bandaging the wounded head of a government official, approached the protesters, there were speakers speaking to the people. Out of the corner of my eye, K.A.T. I saw that it turned out that people had entered the Akimat at that time and a fire started.
Subsequently, K.A.T. approached the Akimat building in order to help the authorities and came in when one police officer was running away from the Akimat building and aggressive people also ran after him, where K.A.T. followed, hard things flew from the authorities and some of them hit his leg and injured his leg As a result, K.A.T. himself suffered. Despite K.A.T.'s injuries, he ran after the official into the room, where, in order to protect the employee, he slapped him in the neck and tore off his shoulder straps so that others would not recognize him as an employee. However, other aggressively minded citizens tried to beat him, but K.A.T. did not allow others to inflict injuries that could actually damage him. Subsequently, K.A.T., during the investigative actions, learned that this police officer was a policeman on duty, T.J.H. The pre-trial investigation body also cites the following arguments in the New qualification of the suspect's act, where K.A.T., without dwelling on what he had done, saw how an officer of the Border Guard Service of the National Security Committee of the Republic of Kazakhstan, Corporal H.Sh.E., entered the specified office in uniform, to whom other participants in the mass riots began to inflict many blows on various body parts with various objects. Feeling impunity for the criminal acts he had previously committed, K.A.T., acting intentionally, wishing to cause physical harm to a representative of the authorities in the person of H.S.E., in particular K.A.T. he inflicted three kicks in the leg area of Kh.Sh.E., thereby hindering the performance of his official duties, undermining his authority and causing damage to his health – they also disagree with these arguments, while K.A.T. himself, during the interrogation, explained the following during the protection of a police officer, T.Zh.Kh., from other aggressively minded citizens A military man, H.S.E., ran into the room, and K.A.T. showed him his leg and asked, "Why? I'm protecting you," and once, imitating a kick, I kicked him in the leg, but there was no thought or intention of beating him, while K.A.T. began to protect him from other aggressively minded citizens.
Irremediable doubts about the guilt of the suspect, the accused, the defendant are interpreted in their favor. Doubts arising in the application of criminal and criminal procedure laws should also be resolved in favor of the suspect, the accused, and the defendant. This is evidenced by the testimony of witnesses T.Zh.Kh., H.Sh.E., that in fact my client helped the representative of the authorities from more serious damage from the maddened crowd who literally tortured the law enforcement officers. The arguments of the pre-trial investigation body regarding the fact that, according to Decree of the President of the Republic of Kazakhstan No. 725 dated January 5, 2022, in connection with a serious and immediate threat to the safety of citizens, in order to ensure public safety, restore law and order, and protect the rights and freedoms of citizens, in Almaty for the period from 01:30 a.m. 5 A state of emergency was declared on January 19, 2022, until 00:00 a.m. on January 19, 2022. Information about the state of emergency was announced through the media, and also communicated to the public via SMS messages to all subscriber numbers of cellular users - K.A.T., in his interrogation, explained that as soon as he woke up on January 05, 2022, he discovered that Aldiyar's son was not at home, to which he called his son and He asked where he was, and his son told him that he was in a park located at the intersection of Nauryzbai-Batyr - Karasai-Batyr, to which he began to resent that rallies were taking place in the city, told him to come home quickly, and ran out to a meeting himself. Thus, he did not have the opportunity to watch TV, in addition, all social networks were disabled. On the way to the city center, I lost my phone, so I couldn't hear and/or read the notification about the declaration of a state of emergency in Almaty. Further, the arguments of the pre-trial investigation body that K.A.T., collectively committed:
272 Part 2 of the Criminal Code, i.e. participation in mass riots accompanied by violence, pogroms, arson, destruction, destruction of property, as well as armed resistance to a representative of the government;
a crime under Article 269, part 2, paragraphs 1,3,6 of the Criminal Code of the Republic of Kazakhstan, that is, an attack on a building committed by a group of persons by prior agreement, using violence dangerous to life and health, against government agencies, as well as the seizure of;
a crime under art.380, part Z, paragraphs 1,4,8,9 of the Criminal Code of the Republic of Kazakhstan, that is, the use of violence against a government official committed against two or more persons, by a group of persons by prior agreement, during mass riots, as well as in an area where a state of emergency has been declared. We disagree because K.A.T. took part in mass riots solely for the purpose of protecting and helping government officials. He did not participate in riots accompanied by violence, pogroms, arson, destruction, destruction of property, as well as armed resistance to a representative of the government. He did not attack a building committed by a group of persons by prior agreement, using violence dangerous to life and health, against state bodies, and did not seize a state institution. He did not use violence against a government official, committed against two or more persons, by a group of persons by prior agreement, during mass riots, as well as in an area where a state of emergency was declared, as evidenced by truthful testimony attached by evidence in the materials of the pre-trial investigation of the case. We are saddened that in our country there is such a practice that officials, law enforcement agencies and judges begin to consider cases objectively only after contacting a higher authority, posting information on social networks and creating a public outcry. We are extremely outraged by the irresponsible actions of the incompetent staff of the Ministry of Internal Affairs at the State Duma of the Republic of Kazakhstan, which discredit the good name of law enforcement officers.
According to Article 1 of the Law of the Republic of Kazakhstan "On the Prosecutor's Office", the Prosecutor's Office, on behalf of the State, carries out, within the limits and forms established by law, supreme supervision over the observance of legality in the territory of the Republic of Kazakhstan. According to Article 5 of the Law, the Prosecutor's Office exercises supreme supervision (hereinafter referred to as supervision) over legality. In accordance with art . 207 CPC RK If, during the pre-trial investigation, grounds arise for changing or supplementing the qualification of the suspect's act, the qualification of a criminal offense, the prosecutor, the person conducting the pre-trial investigation, are obliged to respect the suspect in compliance with the requirements article 204 of the present Code, to draw up, respectively, a new resolution on the qualification of the suspect's act or a resolution on the qualification of a criminal offense, subject to coordination with the prosecutor. A decision on changing or supplementing the qualification of a suspect's act shall be announced to the suspect in accordance with the procedure established by Articles 205, 206 of this Code. In addition, if during the pre-trial investigation the declared suspicion in any part has not been confirmed, the investigator shall terminate the criminal prosecution in this part by his decision, which he shall notify the suspect and other participants in the process with the delivery of a copy of the decision. solutions.
Changing the qualification of the suspect's act | The act of prosecutorial response and/or acts of prosecutorial supervision | Complaint against the investigator's decision
Article 105 of the CPC RK stipulates that complaints filed by persons defending their or represented rights and interests against the actions (inaction) and decisions of persons conducting a pre-trial investigation are submitted to the head of the investigative department, the head of the body of inquiry, the prosecutor or the court. Complaints about the actions (omissions) and decisions of the prosecutor are submitted to a higher prosecutor. On the issues specified in Article 106 of this Code, complaints shall be filed with the court and considered in accordance with the procedure provided for in this article. The person who filed the complaint must be notified of the decision taken on the complaint and the further appeal procedure. The refusal to satisfy the complaint must be motivated. Article 58 of the CPC stipulates that the Prosecutor is an official who, within the limits of his competence, oversees the legality of operational investigative activities, inquiries, investigations and court decisions, as well as on behalf of the state, criminal prosecution at all stages of criminal proceedings and other powers in accordance with Article 83 of the Constitution of the Republic of Kazakhstan and this Code.. On the grounds of the above and in accordance with art. 24, 58, 64, 65-1,78, 99, 100, 105 CPC OF the Republic of Kazakhstan,
Please:
Adopt acts of prosecutorial response and/or acts of prosecutorial supervision in accordance with the procedure established by law in order to eliminate violations of the rule of law.;
To amend the qualifications of the suspect's act on a criminal offense with the exception of art.269, part 2, paragraphs 1,3,6; art.380, part 3, paragraphs 1,4,8,9 of the Criminal Code of the Republic of Kazakhstan and, accordingly, to draw up a new resolution on the qualification of the suspect's act provided for in art.272, Part 2 of the Criminal Code of the Republic of Kazakhstan;
To respond to the application within the prescribed time limits in accordance with art. 105 of the Criminal Procedure Code of the Republic of Kazakhstan.
Sincerely, Lawyer: ___________/Sarzhanov Galymzhan Turlybekovich "___" ________ 2022 the year
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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