Compensation for damage related to unlawful criminal prosecution
O., who was acquitted and had no previous convictions, was accused by the pre-trial investigation body of driving a Toyota Camry car with the state registration number kz993WAZ 03 on January 1, 2020, at about 3 p.m., and driving along Zhunusov Street towards the village of Koyandy in the Tselinograd district of the Akmola region, not observing the established traffic rules and the speed of movement, which in conditions of ice and heavy snowstorm would allow him to avoid a collision, with limited visibility, without observing the distance, he collided with a Lada car with the state registration number kz538LBA/01 standing on the roadway, which drove forward from the impact and hit a Toyota Camry car with the state registration number kz020MNA/01, after which, continuing to move, it hit the injured M., inadvertently harming her of moderate health, and was tried under part 1 of Article 345 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code). By a resolution of the Tselinograd District Court of the Akmola region dated July 27, 2020, the criminal misconduct case against O. was terminated on the basis of paragraph 2) of part 1 of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), due to the absence of a criminal offense in his act. The civil claim of the victim M. in the case was left without consideration. In accordance with part 1 of Article 39 of the CPC, O. is recognized as having the right to compensation for damage related to unlawful criminal prosecution. The fate of the material evidence in the case is resolved in accordance with the procedure provided for in Article 118 of the CPC. The court also issued a private resolution, which brought to the attention of the head of the DOP of the Akmola region about the violations committed by the state traffic inspector of the GDTI OP of the Tselinograd district. violations of the rule of law during the pre-trial investigation and referral of a criminal misconduct case against O. By the decision of the Judicial Board for Criminal Cases of the Akmola Regional Court dated September 16, 2020, the decision and the private decision of the court of first instance remained unchanged. In the protest, the Prosecutor General, disagreeing with the judicial acts against O., points out that after the state prosecutor refused to charge the court of first instance, in violation of the requirements of part 7 of Article 337 of the CPC, did not explain to the victim M. and her representative their procedural rights provided for in paragraph 16) of part 6 of Article 71, Article 72 of this Code., as well as the consequences of the public prosecutor's refusal to charge and the victim's confession by a private prosecutor. He also points out that the court limited itself to explaining the position of the public prosecutor and the reasons for his refusal to charge, as well as clarifying the position of the injured party in this regard. Moreover, the court, having made sure that the victim and her representative supported the accusation against O. and insisted on it, violating their rights, did not provide the injured party with the opportunity to speak in court.
Compensation for damage related to unlawful criminal prosecution
In the petition, the victim M., disagreeing with the judicial acts against O., also points out that the courts of first instance and the appellate instance violated the requirements of the criminal procedure legislation, which, by limiting the rights of participants in criminal proceedings guaranteed by the CPC, influenced the issuance of a lawful and reasonable judicial decision. They are asking for judicial acts to be canceled, and for the criminal misconduct case against O. to be sent for a new judicial review to the court of appeal. The grounds for cassation review of judicial acts that have entered into force in accordance with part 1 of Article 485 of the CPC are violations of constitutional rights and freedoms of citizens committed during the investigation or improper application by the court of the norms of the criminal procedure law. Such grounds for revoking judicial acts against O. have not been established. According to the pre-trial investigation body, the criminal violation provided for in part 1 of Article 345 of the Criminal Code, of which O. was accused, took place on January 1, 2020. After receiving the conclusion of the forensic medical examination regarding the injuries of the victim M. On January 17, 2020, a pre-trial investigation was launched in the case. The criminal offense provided for in part 1 of Article 345 of the Criminal Code in accordance with part 3 of Article 10 of the Criminal Code refers to a criminal offense and, according to the requirements of part 23 of Article 191, part 1 of Article 526 of the CPC, a pre-trial investigation is conducted in a protocol form, which is drawn up within ten days from the moment of interrogation of a person as a suspect in accordance with the procedure established by the provided for in paragraph 4) part 1 of Article 64 of the CPC, within the limitation period for bringing to justice. It follows from the case file that O. was questioned as a suspect on April 25, 2020. In this regard, according to the requirements of part 1 of Article 526 of the CPC, the body of inquiry was obliged to draw up a report on a criminal offense within ten days from the moment of O.'s interrogation as a suspect. However, in violation of these mandatory norms of the criminal procedural law, the protocol on criminal misconduct against O. was drawn up and approved by the head of the body of inquiry only on May 30, 2020, i.e. 35 days later, without suspending the proceedings and extending the procedural time limits in accordance with the procedure established by law.
According to article 50 of the CPC, proceedings in cases carried out in violation of the stipulated time limits entail the recognition of such actions as invalid, since evidence is considered inadmissible due to its receipt in violation of the principles of criminal procedure provided for in Articles 9 and 10 of the CPC. Despite the fact that the pre-trial proceedings were conducted beyond the time limits stipulated by law, the head of the body of inquiry, in accordance with part 4 of Article 189 of the CPC, did not appoint an inquiry into the case. Moreover, the public prosecutor, having discovered these significant violations of the norms of the criminal procedure law, in the main trial asked the court to return the criminal misconduct case against O. to the prosecutor, that is, he actually refused to charge in full. Due to the fact that, according to part 8 of Article 35 of the CPC, the court, having discovered circumstances precluding criminal prosecution, is obliged to resolve the issue of termination of the criminal case. Since the procedural deadline for drawing up a report on a criminal offense, which cannot be restored, was violated in the case, the court of first instance reasonably recognized all the evidence obtained in the case as illegal, and on the basis of paragraph 2) of part 1 of Article 35 of the CPC, terminated the proceedings against O. for the absence of elements of a criminal offense in his act. Thus, the conclusions of the judicial authorities on the termination of the proceedings against O. are based on the law. In accordance with article 440 of the CPC, a decision to dismiss a case or other decision rendered in favor of a defendant cannot be overturned on grounds of a significant violation of the criminal procedure law specified in article 436 of the CPC. Based on the above, the judicial board for criminal Cases of the Supreme Court upheld the acts of local courts against O. The protest of the Prosecutor General of the Republic of Kazakhstan and the petition of the victim M. were left without satisfaction.
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