Complaint against the decision of the judge of the Interdistrict Investigative Court of Almaty
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To the Almaty City Court
from the defender of the suspect S.L.K.
– lawyer Nigmetov S.D.
complaint against the decision of the judge of the Interdistrict Investigative Court of Almaty, M.S. Jarilgasova, dated July 18, 2023
On July 18, 2023, the judge of the Interdistrict Investigative Court of Almaty, M.S. Jarilgasova, considered a petition to authorize a change in the preventive measure in the form of bail for house arrest against the suspect S.L.K.
This resolution is illegal on the following grounds.
During the consideration of the petition, the defense stated that it considered it necessary and sufficient to apply a preventive measure in the form of a written undertaking not to leave.
According to article 140 of the Criminal Procedure Code of the Republic of Kazakhstan, "on the application of a preventive measure, the body conducting the criminal process issues a resolution indicating the criminal offense of which the person is suspected or accused, and the grounds for applying this preventive measure."
According to article 136 of the Criminal Procedure Code of the Republic of Kazakhstan: «1. If there are sufficient grounds to believe that the suspect or the accused will hide from the criminal prosecution authorities or the court, or will hinder the objective investigation of the case or its trial in court, or will continue to engage in criminal activity, and also to ensure the execution of the sentence, the body conducting the criminal process, within the limits of its powers, has the right to apply to these persons one of the preventive measures provided for in Article 137 of this Code.
1-1. When choosing a preventive measure against a suspect or accused, it is necessary to consider the possibility of applying a less severe preventive measure, if any."
According to part 3 of Article 140 of the Criminal Procedure Code of the Republic of Kazakhstan, when applying a preventive measure not related to detention, one or more of the following duties may be assigned to a suspect, accused, or defendant in order to ensure proper behavior:
1) appear before the person conducting the pre-trial investigation, the prosecutor or the court at the time set by them;
2) not to leave a permanent or temporary place of residence without the permission of the body conducting the criminal proceedings;
3) notify the person conducting the criminal proceedings, the prosecutor about the change of place of residence, place of work;
4) not to communicate with certain people and visit certain places;
5) undergo treatment for mental and behavioral disorders (diseases) related to the use of psychoactive substances;
6) Wear electronic tracking devices.
In the petition and resolution authorizing the change of the preventive measure in the form of bail for house arrest, these requirements of the Criminal Procedure Code of the Republic of Kazakhstan were completely ignored. The decision to grant the petition to replace the preventive measure in the form of bail with house arrest is not justified or motivated by anything.
Although it is reliably known from the materials of the criminal case that L.K. Sekbaeva is the mother of 6 young children, is currently pregnant, has no previous criminal record, and has strong social ties.
Changing the preventive measure to house arrest affects the rights and interests of minor children of S.L.K., for whom 3-hour walks are not enough for full development and growth. I also ask you to pay attention to the fact that house arrest has been established until September 18, 2023, that is, it will be in effect during the period when the school year begins in educational institutions. Considering that S.L.K. has 3 children of school age, this will create difficulties for her in the future, since the issue of accompanying children to school and home has not been resolved by the court. Also, the issue of using mobile communication with children by phone, as well as the mobile Internet for communication with children, is not allowed, which is impossible to imagine nowadays.
The ruling also did not take into account the fact that her husband is in custody and S.L.K. will have to leave the children alone in case of urgent need or invite people who are not members of her family home and thereby violate the court order.
According to paragraph 1) of part 3 of Article 77 of the Constitution of the Republic of Kazakhstan, when applying the law, a judge must be guided by the following principles::
1) a person is considered innocent of committing a crime until his guilt is recognized by a court verdict that has entered into legal force.
However, it seems from the ruling that L.K. Sekbaeva is guilty of committing a crime only on the basis that a criminal case has been opened against her. There is no real evidence of her involvement in the alleged act in the materials of the petition.
There are no grounds for making a decision to authorize a preventive measure in the form of house arrest in the text of the resolution.
Based on the above, please:
- to cancel the decision of the judge of the Interdistrict Investigative Court of Almaty, D.M.S., dated July 18, 2023.
Appendix: a copy of the notice of protection, a copy of the lawyer's certificate.
07/20/2023 Nigmetov S.D.
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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