Complaint against the Prosecutor's decision to dismiss the complaint

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To the Specialized Interdistrict Investigative Court of Almaty

Almaty, md. Orbit2 house 20a 2. 8727 (333)-14-60

Defender: Sarzhanov Galymzhan Turlybekovich Law Firm

Law 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: Zh.A.E. IIN ....... Almaty, Nauryzbay district, mkr. ..., ul...., 19.

 

Claim

on the decision of the Prosecutor of the Bostandyk district of Almaty on the refusal to satisfy the complaint

. The reason for our appeal to you was the blatant injustice and lawlessness of the pre-trial investigation of the criminal case No. 217514031003083 against J.A.E., based on the elements of a criminal offense under art. 190 of the Criminal Code of the Republic of Kazakhstan. On December 20, 2021, B.E.M., according to the present material of the pre-trial investigation under art. 190, Part 3, paragraph 4 of the Criminal Code of the Republic of Kazakhstan, was recognized as a suspect by the Investigator of the SB UP of the Bostandyk district of the DP of Almaty. The victim of this material of the pre-trial investigation is IP "..." represented by a representative of gr. Zh.N.M., the amount of material damage caused is 4,400,000 tenge. On 11/20/2021, the criminal cases registered in the ERDR for No. 217514031002739 and No. 217514031003081 were combined into one proceeding, and the main case number No. 217514031003083 was assigned to the combined criminal cases. However, having disagreed with your above-mentioned resolution, we filed a motion to terminate the criminal case in part, namely at the request of IP "..." on the following grounds: Between IP "..." and LLP "..." represented by Zh.A.E.. a one-time contract for the supply of goods was concluded for No. 6/9/21 dated 09/06/2021 of the year. According to p. 1.1, p. 1 of the Contract, the supplier undertakes to transfer the ownership of the buyer of Wally Plastik nitrile gloves in a total amount of 100,000 pairs at a price of 19 tenge per 1 unit of goods. The buyer made the payment in full in the amount of 1,900,000 tenge. The parties also concluded a similar agreement in the amount of 2,500,000 tenge. As a result, the buyer, according to the agreements, paid 4,400,000 tenge to the seller. Subsequently, the seller entered into an agreement with suppliers for the supply of personal protective equipment with Xinjiang Aliema Industrial Equipment Import & Export Co., Ltd., represented by Director MAHATI MAOJIKE (hereinafter referred to as suppliers from China). However, the supplier did not fulfill the contract requirement and the goods were not delivered on time due to the pandemic caused by the coronavirus, that is, due to restrictions on the delivery of medical goods from the territory of the People's Republic of China.

Complaint against the Prosecutor's decision to dismiss the complaint

Due to the non-fulfillment of contractual obligations by the seller of Pharm-plus LLP, the buyer appealed to the Specialized Interdistrict Economic Court of Almaty with a statement of claim for recovery of the amount owed. On December 27, 2021, the Judge of the Specialized Interdistrict Economic Court of Almaty, Nurbekov A.B., having considered the materials of the civil case No. 7527-21-00-2/10331 on the claim of the individual entrepreneur "..." to the limited liability company "...." for the recovery of the amount of debt, the Judge Decided - The claims of the individual entrepreneur "..." Zh.N.M. - to satisfy in full. The above arguments were given in the protocol of the suspect's interrogation dated 12/21/2021. On December 27, 2021, the investigator received a Decision to dismiss the petition of the lawyer of the law firm Law and Law Sarzhanova G.T. The investigator in the decision on refusal indicates that criminal case No. 217514031003081 relates to a number of serious crimes and is not subject to termination. However, we do not agree with the decision to dismiss the petition dated 12/27/2021, we consider it illegal and unfounded, since the lawyer petitioned for the termination of the criminal case in part, namely at the request of IP "TG Group" and all the arguments in the petition are substantiated and proven. According to art . 8 CPC RK: The objectives of the criminal procedure are the suppression, impartial, prompt and full disclosure, investigation of criminal offenses, exposure and prosecution of those who committed them, fair trial and proper application of criminal law, protection of individuals, society and the state from criminal offenses.

The procedure established by law for criminal proceedings should provide protection from unjustified charges and convictions, unlawful restrictions on human and civil rights and freedoms, and in the case of unlawful charges or convictions of an innocent person, his immediate and complete rehabilitation, as well as contribute to strengthening law and order, preventing criminal offenses, and fostering respect for the law. According to 179 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Code), which stipulates that applications, reports or reports of a criminal offense on violations based on non-fulfillment or improper execution of civil law transactions made in writing and not recognized by the court as invalid, imaginary or pretended are not subject to registration. According to art. 35, part 1, paragraph 2 of the Criminal Procedure Code of the Republic of Kazakhstan, which stipulates that a criminal case is subject to termination for the absence of elements of a criminal offense in the act. According to Part 1, art. 192 of the Code, which stipulates that the pre-trial investigation must be completed within a reasonable time, taking into account the complexity of the criminal case, the scope of investigative actions and the sufficiency of the investigation of the circumstances of the case, but not more than the statute of limitations of criminal prosecution established by the Criminal Code of the Republic of Kazakhstan.

Accordingly, referring to the above, we filed a motion to the investigator to terminate the criminal case at the stage of the pre-trial investigation. Subsequently, we filed a complaint with the Prosecutor's Office of the Bostandyk district of Almaty against the action of the investigator from the UP of the Bostandyk district of the DP of Almaty, E.M. Begadilov, who was asked to give written instructions to the investigator on the partial termination of criminal case No. 217514031003081 (namely, at the request of the IP "TG Group") at the stage of the pre-trial investigation. On January 13, 2022, the Prosecutor of the Bostandyk district Almaty O.E.K., having considered the complaint of lawyer Sarzhanov G.T. in the interests of Zh.A.E. in accordance with Article 105 of the CPC, Decided - To dismiss the complaint of lawyer Sarzhanov G.T. in the interests of Zh.A.E., filed in accordance with Article 105 of the CPC. Dear Court, the actions of the defendant are not objectively qualified. On this fact, there are contracts for the supply of goods and decisions of the civil court (copies of the contracts and copies of the court decision are attached). We also inform you that negotiations are underway with IP "TG Group" regarding the conclusion of mediation in the framework of a criminal case. And to date, we have sent a proposal to the IP "TG Group". 106 of the Criminal Procedure Code of the Republic of Kazakhstan, a person whose rights and freedoms are directly affected by an action (inaction) and a decision of the prosecutor, investigative and inquiry bodies has the right to file a complaint with the court against the refusal to accept an application for a criminal offense, as well as violation of the law at the beginning of a pre-trial investigation, commission of other actions (inaction) and decision-making. Based on the above and in accordance with Articles 15, 24, 100, 106 of the Criminal Procedure Code of the Republic of Kazakhstan,

I ask you to:

To recognize the action of the investigator of the SB UP of the Bostandyk district of the DP of Almaty, Begadilov E.M., in issuing a decree recognizing Zh.A.E. as a suspect dated December 20, 2021, as illegal;

To recognize the action of the Prosecutor of the Bostandyk district of Almaty, O.E.K., in issuing a decision to dismiss the complaint dated 01/13/2022 as illegal;

To cancel the Resolution of the investigator of the SB UP of the Bostandyk district of the DP of Almaty, Begadilov E.M., on recognizing a person as a suspect, J.A.E., dated December 20, 2021;

To cancel the Decision of the Prosecutor of the Bostandyk district of Almaty, O.E.K., on the refusal to satisfy the complaint dated January 13, 2022;

Assign to the prosecutor of the Bostandyk district of Almaty, O.E.K., the responsibility to eliminate the violation of the rights and legitimate interests of J.A.E., in criminal case No. 217514031003083 (namely, at the request of IP "..") at the stage of pre-trial investigation;

Sincerely, Lawyer:                                                                                              __________/Sarzhanov G.T. "___" __________ 2021 g

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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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