COMPLAINT TO THE PROSECUTOR'S OFFICE AGAINST THE RESOLUTION ON TERMINATION OF THE PRE-TRIAL INVESTIGATION
To the Prosecutor's Office of Almaty Region
13 Zhambyl Street, Konaev City
8 (72772) 2-34-55
From legal consultant:
Kenesbek Islam Mukhameduly
IIN 970103300774
Law Office “Zakon i Pravo”
BIN 201240021767
79 Abylai Khan Avenue, Office 304, Almaty
+7 708 971 78 58
Acting in the interests of the victim: A.I.S.
IIN 771206301763
3 Zhanadariya Street, Almaty
COMPLAINT
AGAINST THE RESOLUTION ON TERMINATION OF THE PRE-TRIAL INVESTIGATION
PURSUANT TO ARTICLE 105 OF THE CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF KAZAKHSTAN
On 22 September 2026, Acting Inquiry Officer of the Department of Police of Almaty Region A.N. Mukishev issued a resolution terminating pre-trial investigation No. 261900031000268 pursuant to subparagraph 2) of part 1 of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan, on the grounds of absence of elements of a criminal offence in the act.
On 24 September 2026, the said resolution was approved by N. Serikuly, Deputy Prosecutor of Almaty Region.
The grounds for termination stated that civil-law relations arising from a loan had been established between A.I. Ayym and B.N. Zau, and that no objective evidence allegedly establishing B.N. Zau's initial intent to misappropriate funds through deception or abuse of trust had been identified. At the same time, the investigator effectively treated the existence of receipts as a circumstance excluding the fraudulent nature of B.N. Zau's actions.
We disagree with these conclusions and consider them premature, inconsistent with the actual circumstances of the criminal case, and made without a comprehensive, complete and objective examination of the circumstances relevant to the proper criminal-law assessment of B.N. Zau's actions.
Pursuant to Article 24 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – the “CPC”), the criminal prosecution authority is obliged to take all measures provided by law to comprehensively, fully and objectively examine the circumstances necessary and sufficient for the proper resolution of the case.
Pursuant to part 1 of Article 190 of the Criminal Code of the Republic of Kazakhstan (hereinafter – the “Criminal Code”), fraud means the misappropriation of another person's property or the acquisition of a right to another person's property through deception or abuse of trust.
According to paragraphs 2 and 3 of Regulatory Resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 29 June 2017 “On Judicial Practice in Cases of Fraud”, deception in fraud consists in deliberately misleading the owner of property by communicating knowingly false information that does not correspond to reality, or by concealing true facts that should have been disclosed, as a result of which the victim develops a mistaken belief as to the legality of transferring the property. Abuse of trust consists in the offender using a relationship of trust for the purpose of unlawfully obtaining another person's property.
In the present case, the pre-trial investigation authority effectively examined only the existence of a debt obligation, while failing to properly assess the manner in which A.I.S. was induced to transfer the funds.
On 30 December 2024, B.N. Zau received KZT 5,000,000 from A.I.S., undertaking to repay the said amount within the period specified in the receipt and, in the event of inability to repay it, indicating that he would transfer two machines for the production of metal mesh as security for performance of the obligation.
During the confrontation, Zau himself confirmed the existence of such an arrangement. At the same time, in response to a direct question from the victim's representative regarding the documents relating to the said machines, Zau stated that he had no documents for them and merely referred to a certain person named Dulat.
Thus, the accuracy of the information concerning Zau's ownership of the property offered by him as security for repayment of a substantial loan amount was not properly verified by the investigation authority.
Even more significant circumstances were established in relation to the second loan.
On 28 January 2025, B.N. Zau received a further KZT 3,000,000 from A.I.S., providing the original title documents to an apartment as security for repayment of the funds.
During the confrontation, Zau expressly confirmed that he had told A.I.S. that the apartment was effectively owned by him and that his relative was merely the formal owner.
However, during Zau's supplementary interrogation on 16 September 2026, an entirely different circumstance was established. Zau admitted that the owner of the apartment was I.M.A., that he was not the owner and had no right to dispose of the apartment independently.
Moreover, the owner of the apartment was unaware that the documents had been transferred to A.I.S., had not given Zau consent to sell or re-register the apartment, and had not granted him any corresponding authority.
This circumstance is of fundamental importance for the legal classification of Zau's actions.
The issue here is not that Zau was subsequently unable to perform a civil obligation for objective reasons. Rather, before receiving the funds, he had already used third-party immovable property as security, while knowing in advance that the owner was unaware of such use, had not consented to the use of the property as security, and that Zau had no legal ability to dispose of the apartment.
Consequently, the impossibility of realizing the proposed security did not arise subsequently – it already existed at the time the funds were received and was known to Zau himself.
Furthermore, Zau's statements on this matter contradict one another. During the confrontation, he confirmed that he had represented the apartment to A.I.S. as being effectively owned by him, whereas during the supplementary interrogation he claimed that he had allegedly informed A.I.S. from the outset that the apartment belonged to his sister.
This material contradiction was not resolved by the investigation authority and received no assessment whatsoever in the resolution terminating the pre-trial investigation.
It is precisely these circumstances that should have been assessed in light of paragraph 10 of Regulatory Resolution No. 6 of the Supreme Court, according to which, in distinguishing fraud from civil-law relations, it must be established whether the intent to misappropriate another person's property through deception or abuse of trust existed before and/or at the time of entering into the agreement, and the deceptive acts must precede the transfer of the property.
Paragraph 11 of the said Regulatory Resolution No. 6 is also of particular importance. It provides that, in contractual obligations, the presence of intent to commit fraudulent misappropriation may be evidenced by a combination of circumstances, including the person's knowingly lacking a real financial or other material ability to perform the obligation undertaken, the use of false guarantees, concealment of information concerning debts or pledges of property, entering into knowingly unenforceable agreements, and other circumstances.
However, Zau's actual financial ability to repay the funds received was not effectively verified.
During the confrontation, in response to a question from the victim's representative as to what specific funds Zau intended to use to repay the loan, he stated that a certain man named Nikolai, whose full personal details were unknown to him, allegedly owed him KZT 6,000,000, and that Zau was relying on repayment of that amount.
In response to the following question, he admitted that there was no written agreement with Nikolai and that their relationship was allegedly based solely on an oral arrangement.
Despite the fact that Zau relied precisely on this circumstance to substantiate his alleged real ability to repay the loan, the investigation authority neither identified nor questioned Nikolai, nor verified the existence of the alleged KZT 6,000,000 debt, the grounds on which it arose, its repayment deadline, or the reality of the alleged arrangement itself.
Thus, Zau's key version concerning the existence of a source of funds for repayment of the loan remained completely unverified.
It was also unreasonable to treat the receipts as circumstances disproving fraud.
The resolution terminating the pre-trial investigation expressly states that the existence of receipts and the acknowledgment of the debt obligation demonstrate the civil-law nature of the relationship.
However, the mere fact that a receipt was executed does not exclude fraud where the transfer of funds was induced by prior deception concerning material circumstances, including the security for the obligation and the actual ability to perform it.
Any other interpretation would effectively mean that fraud could never be established in cases where the person receiving the money executes a receipt, which directly contradicts paragraphs 10 and 11 of Regulatory Resolution No. 6 of the Supreme Court.
Particular attention should also be paid to the fact that the actual purpose for which B.N. Zau obtained the funds was not examined by the pre-trial investigation authority.
A.I.S., both in his initial statement and during his interrogations, consistently explained that, when applying for the loan, B.N. Zau stated that he himself had been involved in a traffic accident in which he had allegedly struck a minor child, causing bodily injuries, and that he urgently needed funds to pay the parents of the injured child as compensation for the harm caused.
It was precisely these circumstances that B.N. Zau used to justify the necessity and urgency of obtaining the loan, thereby influencing A.I.S.'s trust and sympathy.
However, the inquiry officer did not establish whether the alleged traffic accident had actually occurred, when and under what circumstances it had occurred, whether B.N. Zau had actually been involved in it, whether the minor child had sustained bodily injuries, whether there had been an arrangement to pay money to the child's parents, or whether the funds received from A.I.S. had actually been used for the stated purposes.
These circumstances are directly relevant to determining whether the story concerning the traffic accident communicated by Zau was a means of initially misleading the victim for the purpose of obtaining funds.
Nevertheless, these circumstances were not examined and received no assessment whatsoever in the resolution terminating the pre-trial investigation.
Furthermore, during the investigation, the victim's side took measures to provide the criminal prosecution authority with additional evidence concerning Zau's initial intent.
On 4 September 2026, a motion was filed requesting the seizure of a “GERLAX” USB flash drive containing audio and video recordings of conversations between A.I.S. and B.N. Zau, with a request to inspect and examine the recordings and record their contents in the relevant procedural protocol.
The motion expressly stated that the recordings contained information concerning the circumstances in which the funds had been obtained, the ownership of the property offered as security, as well as Zau's statements concerning his initial intentions when obtaining the funds.
Despite the obvious relevance of this evidence to precisely the issue whose absence was subsequently relied upon as the basis for terminating the case, the motion was denied by a resolution dated 4 September 2026.
At the same time, the investigator expressly stated that the recording medium could be submitted for subsequent inspection, examination and attachment to the criminal case file pursuant to part 4 of Article 122 of the CPC.
However, when the USB flash drive was presented, the inquiry officer refused to accept it.
Thus, a procedurally contradictory situation arose: the investigation authority refused to examine evidence submitted by the victim's side specifically for the purpose of verifying the initial intent, and subsequently terminated the criminal case on the ground that there was no evidence of such initial intent.
Particular attention should also be paid to the incorrect determination of the amount of damage caused to the victim and, consequently, the premature classification of the act exclusively under part 1 of Article 190 of the Criminal Code.
A.I.S. consistently stated that Zau had received a total of KZT 8,000,000 from him under two loan transactions – KZT 5,000,000 and KZT 3,000,000.
In addition, the parties have an outstanding debt of KZT 2,000,000 for metal mesh received by Zau.
The victim reported this circumstance during the investigative proceedings, and, during the confrontation, when asked about A.I.S.'s statements, Zau stated that he agreed with them.
The victim's interrogation record separately records the KZT 2,000,000 debt for the goods.
Accordingly, the criminal prosecution authority was required to verify the circumstances of the misappropriation of the victim's property in the total amount of KZT 10,000,000, provide a legal assessment of all episodes, and determine whether the qualifying element of a large amount was present and whether the act should accordingly be classified under part 3 of Article 190 of the Criminal Code.
Instead, the resolution terminating the investigation begins with a factual description of an alleged misappropriation of only KZT 1,000,000, which in itself demonstrates a substantial discrepancy between the contents of the resolution and the actual materials of the criminal case.
Of particular significance is also the existence of another criminal case against the same B.N. Zau.
Upon the complaint of Sh.U. Baratova, the Inquiry Department of the Department of Police of Almaty Region is conducting pre-trial investigation No. 261900031000265 under part 1 of Article 190 of the Criminal Code against the same B.N. Zau.
In that case, the victim likewise alleges that Zau misappropriated her funds through deception and abuse of trust.
Moreover, by resolution of the Deputy Prosecutor of Almaty Region N. Serikuly dated 27 August 2026, approval of the termination of criminal case No. 261900031000265 was refused.
The Prosecutor's Office expressly stated that the conclusion that the parties were involved exclusively in civil-law relations was premature, since the amount of damage had not been established, the movement of funds had not been verified, the reality of Zau's activities relating to metal mesh had not been examined, the relevant persons had not been identified or questioned, and the partial repayment of funds by itself did not eliminate the need to verify the existence of initial fraudulent intent.
Thus, two criminal cases are being investigated practically simultaneously against the same person on analogous complaints by victims concerning the misappropriation of funds through deception. Nevertheless, these proceedings have not been joined and have not been examined in their interrelationship.
Pursuant to Article 43 of the Criminal Procedure Code of the Republic of Kazakhstan, criminal cases against one person who has committed several criminal offences may be joined in a single proceeding, as well as in other cases provided for by that provision.
In the present circumstances, the issue of joining proceedings No. 261900031000268 and No. 261900031000265 should have been resolved taking into account the fact that the same person was being investigated, the similar method of obtaining funds, and the need to verify the possible systematic nature of his actions.
Instead, the materials of criminal case No. 261900031000268 contain a record of the supplementary interrogation of Sh.U. Baratova as a victim, although she was recognized as a victim within the framework of another criminal proceeding, No. 261900031000265.
In the absence of a procedural decision to join the criminal cases, such mixing of materials from two separate proceedings raises questions as to compliance with the procedure for forming the criminal case file and additionally indicates inadequate organization of the investigation.
The totality of the above circumstances – the use of property over which Zau had no right of disposal; the absence of the apartment owner's consent; the absence of documents confirming ownership of the machines; Zau's contradictory statements concerning the apartment; the unverified version concerning a KZT 6,000,000 debt allegedly owed by a person named Nikolai; the existence of another analogous criminal proceeding; the failure to establish the full amount of damage; and the refusal to fully examine the submitted audio and video recordings – did not permit a reliable conclusion that the elements of a criminal offence were absent.
Accordingly, application of subparagraph 2) of part 1 of Article 35 of the CPC was premature.
Termination of a criminal case in the presence of unresolved contradictions and unverified circumstances effectively means that doubts and gaps which the investigation authority was required to eliminate through investigative and procedural actions were instead used as grounds for terminating the proceedings.
Pursuant to part 2 of Article 104 of the CPC, when considering this complaint, the prosecutor is required to verify all arguments set out therein and, where necessary, request additional materials and written explanations.
Pursuant to Article 291 of the CPC, a terminated pre-trial investigation shall be resumed by cancellation of the resolution terminating it by the prosecutor or the court.
Based on the foregoing, and guided by Articles 100, 104 and 105 of the Criminal Procedure Code of the Republic of Kazakhstan,
I HEREBY REQUEST:
1. To cancel the resolution of A.N. Mukishev, Inquiry Officer of the Department of Police of Almaty Region, dated 22 September 2026, terminating pre-trial investigation No. 261900031000268;
2. To resume the pre-trial investigation in criminal case No. 261900031000268 pursuant to Article 291 of the CPC of the Republic of Kazakhstan;
3. To ensure a full pre-trial investigation with verification of all circumstances relevant to establishing the existence or absence of initial intent, including the circumstances provided for in paragraphs 10 and 11 of Regulatory Resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 29 June 2017.
Respectfully,
Representative under Power of Attorney:Kenesbek I.M.
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