Complaint about violation of the Law during the appointment of a comprehensive commission additional re-examination
Attention! The Law and Law Law Company draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you in drafting any legal document that suits your situation. For more information, please contact a Lawyer/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
To the investigating judge_________________ district court of the city________________________
(court at the place of conducting the pre-trial investigation) address:_________________________
from the victim, the witness with the right to defense, the suspect, the accused _______________________,
(Your full name and date of birth) in criminal case no. ________________________
(specify the number of the criminal case) residing/being held in the institution____________
at the address: _______________________________ ( address, home and mobile phone number
(if you are deprived of liberty, only the address of the institution, the cell number)
complaint
A complaint under article 106 of the Criminal Procedure Code of the Republic of Kazakhstan for violation of the Law during the appointment/ conduct of a comprehensive/ commission/ additional/ re-examination. In the production of the investigator/inquirer _____________________________________ ( specify the full name, title of the investigator / inquirer and the body of the pre-trial investigation) there are materials of the criminal case on the fact___________________________________________ ( specify the article of the Criminal Code of the Republic of Kazakhstan specified in the resolution on the qualification of the act) "___" ______ 201__ G. investigator/inquirer _______________________________ ( Full name, title of investigator/ inquirer and pre-trial investigation body) issued an unjustified decision on the appointment of a comprehensive/ commission/ repeated/ additional forensic examination (hereinafter referred to as the resolution on the appointment of an expert examination). With the resolution _________________________________ on the appointment of an expert examination (specify the full name, title of the investigator / inquirer and the body of the pre-trial investigation) from _____________ 201__ G. I disagree, I consider the conclusion illegal on the following grounds: According to art. 281 CPC RK - a commission examination is appointed in cases where it is necessary to conduct complex expert research and is conducted by at least two experts of the same specialty (at least three experts are appointed to conduct a forensic psychiatric examination on the issue of sanity); during the commission of a forensic examination, each of the judicial experts independently and independently conducts a forensic examination in full The members of the expert commission jointly analyze the results obtained and, having come to a common opinion, sign the conclusion./
A complaint about a violation of the Law when appointing a comprehensive commission additional re-examination
Article 282 of the Criminal Procedure Code of the Republic of Kazakhstan - a comprehensive examination is appointed when, in order to establish circumstances relevant to the case, research is needed based on different branches of knowledge, and is conducted by experts of various specialties within their competence; a comprehensive examination may be conducted by one expert if he has the right to conduct research in various expert specialties.; the conclusion of the comprehensive examination should indicate which studies, to what extent each expert has conducted and what conclusions he has reached, each expert signs the part of the conclusion that contains these studies; based on the results of the studies conducted by each of the experts, they formulate a general conclusion (conclusions) about the circumstances to establish which An expert examination has been appointed; the general conclusion (conclusions) is formulated and signed only by experts competent in evaluating the results obtained.; if the final conclusion of the commission or part of it is based on the facts established by one of the experts (individual experts), then this should be indicated in the conclusion / Article. 287 of the Criminal Procedure Code of the Republic of Kazakhstan - additional examination is appointed if there is insufficient clarity or completeness of the conclusion, as well as if there is a need to resolve additional issues related to the previous study; additional examination It may be assigned to the same or another expert. 287 of the Criminal Procedure Code of the Republic of Kazakhstan - repeated examination is appointed to examine the same objects and resolve the same issues in cases where the previous expert opinion is insufficiently substantiated, or his conclusions are questionable, or the procedural rules on the appointment and conduct of an examination were significantly violated; the decision on the appointment of a re-examination should include the reasons for disagreement with the results the commission of experts is responsible for the previous expert examination; the re-examination is carried out by a commission of experts; the experts who conducted the previous examination may be present during the re-examination and provide explanations to the commission, however, they do not participate in the expert study and the preparation of the conclusion; when assigning additional and re-examinations, the expert(s) must be provided with the conclusions of previous examinations; if the second or subsequent examination is appointed for several reasons, one of them which relate to additional expertise, and others to repeated, such expertise is carried out according to the rules of repeated production.
However, the commission examination, contrary to Article 281 of the CPC of the Republic of Kazakhstan, was conducted by one expert (a forensic psychiatric examination on the issue of sanity was conducted by two experts); during the commission forensic examination, not each of the forensic experts conducted a full forensic examination, the members of the expert commission did not jointly analyze the results obtained and, both, did not They signed an opinion, which indicates that both experts did not come to a common opinion/ Contrary to art. 282 CPC RK - a comprehensive examination was conducted by experts of the same specialty and not within their competence; one expert did not have the right to conduct research in various expert specialties, since he had only one specialty; the conclusion of the comprehensive examination does not indicate which studies, to what extent each expert conducted and what conclusions he came to each expert did not sign the part of the report that contains these studies; based on the results of the research conducted by each of the experts, a general conclusion (conclusions) was not formulated about the circumstance for which the examination was appointed; the general conclusion (conclusions) was formulated and signed by experts who were incompetent in assessing the results; the basis for the final conclusion of the commission or part of it were the facts established by one of the experts (by individual experts), but this is not stated in the conclusion./ Contrary to art . 287 CPC RK - additional examination was not appointed due to insufficient clarity or completeness of the conclusion, as well as the need to resolve additional issues related to the previous study, since the conclusions of the previous examination were clear and fully answered the questions raised, and additional questions did not arise / Contrary to Part 3 of art. 287 CPC RK - a re-examination was ordered to examine the same objects and resolve the same issues, despite the fact that the previous expert opinion was justified and his conclusions were not in doubt, and 17 significant violations of the procedural rules on the appointment and conduct of the examination were not allowed; the decision on the appointment of a re-examination were not given the reasons for disagreement with the results of the previous examination; the commission of experts was not entrusted with the re-examination.; the experts who conducted the previous examination participated in the expert study and the preparation of the conclusion, which is confirmed by their signatures; when ordering additional and repeated examinations, the expert(s) were not provided with the conclusions of previous examinations, as indicated in the conclusion; the second or subsequent examination was appointed for several reasons, some of which relate to additional the examination, and others – for a second one, however, the examination was carried out according to the rules of additional examination.
In violation of Article 271 of the Criminal Procedure Code of the Republic of Kazakhstan, the examination was not assigned to an expert with special scientific knowledge, since the expert (full name of the expert) does not have the appropriate license to conduct (specify the type, philological, linguistic, handwriting, etc.) expertise, and therefore, the right to carry out such examinations. There was no need to appoint a commission/ comprehensive/ additional/ re-examination, since there were no grounds for conducting an examination, as indicated in Part 1 of Article 271 of the Criminal Procedure Code of the Republic of Kazakhstan, if it is necessary to establish in the case: 1) causes of death; 2) the nature and severity of the injury caused; 3) the age of the suspect, accused, victim, when it matters to the case, but age documents are missing or questionable; 4) the mental or physical condition of the suspect, accused, when doubts arise about their sanity or ability to independently defend their rights and legitimate interests. interests in criminal proceedings; 5) the mental or physical condition of the victim or witness in cases where doubts arise about their ability to correctly perceive circumstances relevant to the case and give evidence about them; 6) other circumstances of the case that cannot be reliably established by other evidence (note.
Complaint about violation of the Law during the appointment of a comprehensive commission additional re-examination
On the grounds listed in paragraphs 4) and 5) of Part 1 of this Article, an outpatient forensic psychiatric examination is appointed and conducted in respect of a suspect, accused, victim, witness. If the expert declares that it is impossible to give an opinion without conducting an inpatient forensic psychiatric examination and placing the subject for inpatient examination, an inpatient forensic psychiatric examination is appointed in the criminal case in accordance with the procedure provided for in Article 279 of this Code). Part 2 of art . 271 of the Criminal Procedure Code of the Republic of Kazakhstan - the appointment and conduct of a forensic psychiatric examination are mandatory if there are doubts about the mental state of a suspect accused of committing a crime for which the Criminal Code of the Republic of Kazakhstan provides for punishment in the form of death penalty or life imprisonment. Contrary to part 1 of art . 272 of the Criminal Procedure Code of the Republic of Kazakhstan, recognizing the need to appoint a forensic examination, the body conducting the criminal process, the investigating judge (full name and position of the person who issued the decision on the appointment of the examination) issued a resolution on this, however, the resolution did not specify: the name of the body that appointed the examination, time, place of appointment of the examination; type of examination; grounds for appointment expertise; objects sent for examination and information about their origin, as well as permission for the possible complete or partial destruction of these objects, changing their appearance or basic properties during the study; the name of the judicial examination body and (or) the surname, first name, patronymic (if any) of the person charged with judicial proceedings expertise. In violation of Part 3 of Article 272 of the Criminal Procedure Code of the Republic of Kazakhstan, judicial examination of the victim, witness, except for the cases provided for in paragraphs 2), 3) and 5) of Part 1 of art. 271 of this Code, was not carried out with their consent or the consent of their legal representatives, which are given by these persons in writing.
Contrary to Parts 4 and 5 of Article 272 of the Criminal Procedure Code of the Republic of Kazakhstan, the person who appointed the examination did not familiarize the suspect, the accused, his defense attorney, the victim, his representative, as well as the witness undergoing the examination, his legal representative, and did not explain to them the rights provided for in art. 274 of the Criminal Procedure Code of the Republic of Kazakhstan, which is confirmed by the absence of a protocol signed by the person who appointed the examination and the persons who were acquainted with the resolution/ or the protocol on familiarization with the resolution on the appointment of the examination was signed after a considerable time from the date of appointment of the examination, in connection with which the defense party (the injured party) could not achieve the appointment of an examination by the body who are conducting criminal proceedings on the initiative of the defense party (the injured party) by writing down and submitting to the body conducting the criminal proceedings the issues on which, in their opinion, an expert opinion should be given, indicating the objects of the study, as well as persons who could participate as an expert / the body conducting the criminal process refused to appoint an expert examination/ excluded questions, while the questions submitted for its resolution related to the criminal case or the subject of the forensic examination and the refusal to satisfy The person conducting the pre-trial investigation did not issue a reasoned decision within three days of receipt of the petition. Contrary to part 6 of art . 272 of the Criminal Procedure Code of the Republic of Kazakhstan, when deciding on the appointment of an expert examination in accordance with the procedure provided for in paragraph 7) of Part 2 of art. 55 of this Code, the investigating judge did not invite the defense to submit in writing the questions that need to be put before the expert, and did not listen to the opinion of the participants in the process on them./The defense party (the injured party) was unable to exercise the right to indicate which objects are subject to expert examination, as well as to whom the examination may be entrusted, as well as the right to challenge the expert/ When the investigating judge appointed an expert examination, the person conducting the pre-trial investigation did not provide the necessary items, materials, which are in its production, at the disposal of the expert.
In violation of Part 9 of Article 272 of the Criminal Procedure Code of the Republic of Kazakhstan, the participant in the trial, on whose initiative the examination was appointed, presented objects and documents as objects of expert study, however, the body conducting the criminal trial did not exclude them from the list by a reasoned resolution. Contrary to part 10 of art . 272 CPC RK, having considered the submitted issues, the body conducting the criminal proceedings rejected the issues related to the criminal case or the subject of the forensic examination, did not find out whether there were grounds for challenging the expert, and issued a resolution on the appointment of an expert examination in violation of the requirements specified in Part 1 of art. 272 CPC RK. In violation of Article 273 of the Criminal Procedure Code of the Republic of Kazakhstan, the forensic examination was not commissioned: 1) employees of the judicial examination bodies; 2) persons carrying out forensic activities on the basis of a license; 3) on a one-time basis to other persons in the manner and on the terms stipulated by law; 4) to a person from among those proposed by the participants in the process. 19 Moreover, in violation of Article 274 of the Criminal Procedure Code of the Republic of Kazakhstan, the witness with the right to defense/ the defense party / the injured party, when appointing the examination and its production, could not: 1) before conducting the examination, familiarize themselves with the decision on its appointment and receive an explanation of their rights, about which a protocol should have been drawn up; 2) challenge the expert or request the removal of the judicial examination body from the examination.; 3) apply for the appointment of the persons indicated by them or employees of specific judicial examination bodies as experts, as well as for an expert examination to be conducted by a commission of experts; 4) apply for additional questions to be posed to the expert or clarified; 5) attend the examination in accordance with the procedure provided for in Article 278 of the Criminal Procedure Code of the Republic of Kazakhstan, with the permission of the body conducting the criminal process 6) to get acquainted with the expert's opinion or a message about the inability to give an opinion in accordance with the procedure provided for in art. 284 CPC RK/ The examination of victims and witnesses, as well as the person who suffered from the commission of a criminal offense, and the person against whom the issue of recognition as a suspect was being resolved, was not carried out with their written consent/ Despite the fact that the petition of the witness with the right to defense / the defense / the injured party was granted, as there is a corresponding resolution, the body conducting the criminal process has not changed or supplemented its resolution on the appointment of an expert examination./ Having refused to satisfy the petition, the investigator/inquirer did not issue a reasoned decision., which was announced against receipt to the person who filed the petition. Contrary to Article 275 of the Criminal Procedure Code of the Republic of Kazakhstan, during the forensic examination of living persons, the prohibition on: 1) deprivation or restriction of their rights guaranteed by law (including through deception, torture, ill-treatment, violence, threats and other illegal measures) in order to obtain information from them; 2) the use of these persons as subjects of clinical research of medical technologies, pharmacological and medicinal products; 3) the use of research methods involving surgical intervention.
The person in respect of whom the forensic examination was conducted was not informed in an accessible form by the body that appointed the forensic examination about the methods of forensic research used, including alternative ones, about possible pain and side effects/ The person placed in a medical organization was not given the opportunity to file complaints and petitions/ Complaints and petitions submitted in the manner prescribed by the CPC of the Republic of Kazakhstan were not sent by the administration of the medical organization to the addressee within 24 hours and are not subject to censorship./ Forensic examination, activities carried out against a person with his consent were not terminated at any stage on the initiative of the said person. As follows from Article 15 of the Criminal Procedure Code of the Republic of Kazakhstan, the body conducting criminal proceedings is obliged to protect the rights and freedoms of citizens participating in criminal proceedings, create conditions for their implementation, and take timely measures to meet the legitimate demands of participants in criminal proceedings. The damage caused to a citizen as a result of violation of his rights and freedoms during criminal proceedings is subject to compensation on the grounds and in accordance with the procedure provided for by the CPC of the Republic of Kazakhstan. In art . 24 of the CPC of the Republic of Kazakhstan defines that the court, prosecutor, investigator, inquirer are obliged to take all measures provided by law for a comprehensive, complete and objective investigation of the circumstances necessary and sufficient for the proper resolution of the case. 20 Article 31 of the CPC of the Republic of Kazakhstan proclaims the freedom to appeal against the actions and decisions of the criminal prosecution body. In addition, it is not allowed to file a complaint to the detriment of the person who filed the complaint or in whose interests it was filed. According to clauses 1 and 2 of art. 12 The Constitution of the Republic of Kazakhstan recognizes and guarantees human rights and freedoms, human rights and freedoms belong to everyone from birth, are recognized as absolute and inalienable, determine the content and application of laws.
Complaint about violation of the Law during the appointment of a comprehensive commission additional re-examination
By me "___" _______ 201__ G. a complaint was filed with the Prosecutor's Office _____________ cities ________________, However, I have not received a response to the complaint. (however, the Prosecutor's office did not find any violations of the CPC norms). In accordance with Part 1 of art . 106 of the Code of Criminal Procedure of the Republic of Kazakhstan, a person whose rights and freedoms are directly affected by the action (inaction) and decision of the prosecutor, investigative and inquiry bodies, has the right to file a complaint with the court about a violation of the law when making a decision (on the appointment of an expert examination) at the location of the body conducting the criminal process within fifteen days from the date of familiarization with the decision, which the person does not agree with. Because in accordance with Part 2 of art . 56 of the Code of Criminal Procedure of the Republic of Kazakhstan, conducting a review of complaints against the actions and decisions of the investigator is mandatory, and it is also necessary to investigate the circumstances relevant to making a legitimate and reasonable decision, I ask the investigating judge to consider the complaint within ten days in a closed court session with my participation. Based on the above, in accordance with Articles 31, 53, 54, 55, part 6 of art. 56, 64, 65, 78 and 100, 101, 106 of the Criminal Procedure Code of the Republic of Kazakhstan, please: 1.Resolution/ Actions of the investigator/inquirer _________________________ about (FULL name of the investigator and the pre-trial investigation body) appointment/conduct/ commission/ comprehensive/additional/re-examination from __________201__ - recognize as illegal and oblige to eliminate the violation.
To issue a private resolution to the pre-trial investigation body in connection with the admission of violations of the Law by the pre-trial investigation body. Appendix: a copy of the appealed decision filed by the defense party / injured party of the petition (if any).
________________ FULL NAME, ____________ signature, "____"______________201___ G.
(Submit one copy of the application through the office of the institution, and keep the other with a stamp or registration certificate.) (Write down the outgoing number and the date of the complaint if you are incarcerated).
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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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