Examination of evidence The evidence collected in the case is subject to a comprehensive and objective examination. The study includes analyzing the evidence obtained, comparing it with other evidence, collecting additional evidence, and verifying the sources of evidence.
By the verdict of the Kazybekbiysky District Court of the city of Karaganda dated July 22, 2020: K., who had no previous criminal record, was found not guilty on points 1), 3), 8), 9) of Part 2 of Article 126 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) and was acquitted due to the absence of elements of a criminal offense in his actions. U, previously not convicted, found not guilty on charges 1), 3), 8), 9) part 2 of Article 126, paragraph 1) of part 2 of Article 194 of the Criminal Code and was acquitted due to the absence of elements of a criminal offense in his actions. A., who had no previous criminal record, was found not guilty according to the counts 1), 3), 8), 9) S., who had no previous criminal record, was found innocent under paragraphs 1), 8) of part 2 of Article 126 of the Criminal Code and acquitted due to the absence of elements of a criminal offense in his actions. J., who had no previous criminal record, was found not guilty under paragraphs 1), 3), 8) of part 2 of Article 126 of the Criminal Code and acquitted due to the absence of elements of a criminal offense in his actions. A., who had no previous criminal record, was found not guilty under paragraphs 1), 3), 8) of part 2 of Article 126 of the Criminal Code, part 1 of Article 104 of the Criminal Code and acquitted due to the absence of elements of a criminal offense in his actions.
N., who had no previous criminal record, was found innocent under paragraphs 1), 3), 8) of part 2 of Article 126 of the Criminal Code and acquitted due to the absence of elements of a criminal offense in his actions. The right to rehabilitation and compensation for harm caused by unlawful criminal prosecution is recognized for those who are justified. The civil claim of the victim I. for recovery of material damage and moral damage was left without consideration. The fate of the physical evidence is resolved. The procedural costs are attributed to the State. By the pre-trial investigation authorities K., U., A., S., J., E., N. They were accused of unlawfully depriving the victim of his liberty. in a group of persons by prior agreement, out of mercenary motives, K., U., A., S., A., N. - also with the use of violence dangerous to life and health, K., U., A. - with the use of material or other dependence of the victim during the period from April 18 to July 21, 2017 in in various rented apartments in Almaty and Karaganda, in the back room of the Jam club, located at 5/2 Ryskulova St. in Karaganda. U. was also accused of extorting money from a group of people by prior agreement from Ts.I.'s mother. in the amount of 2,000 euros on May 29, 2017, when the he was in a rented apartment at 12 No. 3 N. Abdirova Ave. in the city of Karaganda, of which I. transferred 100 euros, which U., K., A. disposed of at their discretion. E. was also accused of causing the death of TS. Inadvertently, on July 21, 2017, in the back room of the Jam club, when he pushed Ts with both hands. The latter, falling, hit his head on the table and lost consciousness, and died a short time later. The court ruled an acquittal on the grounds that there was no reliable and indisputable evidence of Ts.'s imprisonment, extortion of money, violence and causing death by negligence, as well as significant violations of the criminal procedure law, which led to the recognition of individual evidence as inadmissible. By the decision of the judicial Board for Criminal Cases of the Karaganda Regional Court dated October 12, 2020, the verdict of the court remained unchanged.
In the protest, the prosecutor considers the judicial acts to be unfounded and subject to cancellation due to the inconsistency of the court's conclusions set out in the verdict with the factual circumstances of the case and the improper application of the criminal law. In support of the petition, the prosecutor points out that the guilt of the acquitted is confirmed by the evidence provided by the pre-trial investigation authorities, namely: the initial testimony of K., U., A., S., J., E., N., witnesses, experts, and written case materials. The court did not assess the circumstances of the fact that the corpse of Ts. It was discovered based on the confessions of Zh. and S. The testimony of I., who witnessed how K. and A. beat the victim, was also not evaluated. Separate procedural documents were unreasonably recognized as inadmissible evidence, and the fact of causing death by negligence by Ts. was questioned, since the circumstances were established by the testimony of E., Zh., R. He asks to cancel the judicial acts and send the criminal case for a new judicial review to the court of appeal. He also asks for the cancellation of private rulings of the courts of first instance and appeal. In accordance with article 124 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the evidence collected in the case is subject to a comprehensive and objective study. The study includes analyzing the evidence obtained, comparing it with other evidence, collecting additional evidence, and verifying the sources of evidence. These requirements of the law on the rules for examining evidence by the courts of the first and appellate instances have not been properly complied with. The court admitted the one-sidedness and incompleteness of the judicial investigation, and the conclusions of the court on the episodes of the incriminated K., U., A. charges by sub-paragraphs 1), 3), 8), 9) Parts 2 of Article 126 of the Criminal Code and E. under part 1 of Article 104 of the Criminal Code do not correspond to the factual circumstances of the case. The court found that Ts. During the period imputed to the defendant, he crossed the border with Kyrgyzstan twice, was twice brought to administrative responsibility for drinking alcoholic beverages in a public place, and often attended an Orthodox church, which indicates his free movement, but there is no evidence that any of the defendants accompanied him during this time. In addition, it was found that Ts. He had his own laptop with Internet access, at which he worked and contacted his mother via Skype and partners to obtain a certificate. These circumstances indicate that the victim had the opportunity to contact law enforcement agencies and seek help. Meanwhile, K., U., and A. during the pre-trial investigation claimed a change in their relationship to the victim after O.'s detention on April 18, 2017 in Hong Kong. According to the indictment, it was during this period that these individuals set out to commit criminal intent aimed at unlawfully depriving the victim of liberty. It follows from the case file that during the interrogation, K. and U. admitted their guilt of unlawfully detaining Ts. in rented apartments in Almaty, causing bodily harm to him. Their initial statements about the details of the act they committed are consistent with each other, as well as with the testimony of witness I. regarding the illegal actions of K., U. and A. in relation to the victim. The testimony of K. and U. as suspects was given with the direct participation of professional defenders, confirmed by them at face-to-face meetings, when clarifying and verifying the testimony on the spot.
However, this evidence has not been properly verified or compared with other evidence, including the actions they objectively committed, confirmed during confrontations between them, with A., I. and I. regarding the restraint and infliction of bodily harm to Ts., as well as the protocol of the inspection of the scene of the rented apartment, where plastic pipes were found, recognized as material evidence. In such circumstances, the court prematurely declared as inadmissible evidence the testimony of K. and U., given by them as suspects, as well as the testimony of witness I. due to the lack of identification of her identity and contradictions in her testimony. Thus, the analysis of the collected information substantiates the legality of the criminal prosecution of K., U. and A., according to the sub-paragraphs 1), 3), 8), 9) part 2 of Article 126 of the Criminal Code, and the inconsistency of the acquittal in this part. The reference in the court's verdict to part 3 of Article 112 of the CPC stating that the evidence given by the suspect during his preliminary interrogation as a witness cannot be used as evidence, nor can the protocols of interrogations of these persons as suspects with the participation of professional defenders be considered inadmissible evidence. The indictment details the time and method of committing the criminal offense charged by him, provided for in part 2 of Article 126 of the Criminal Code from April 18, 2017. In this regard, the court's conclusions in this part are untenable. At the same time, the judicial board agrees with the court's conclusions that the body of the pre-trial investigation is the very fact of the forced imprisonment of S., Zh., E. and N. of the victim Ts. I did not find my confirmation directly in the building of the Jam club in the city of Karaganda, since the prosecution did not provide sufficient and reliable evidence of this. In this part, the court's conclusions that Ts. he moved freely and independently throughout the club building, including with visitors to the establishment, as well as into the kitchen, without any escort, while he did not address any of the club's visitors and club employees, correspond to the factual circumstances of the case, and refute the arguments of protest about the guilt of these persons in committing a crime, provided for by subitems 1), 3), 8) of part 2 of Article 126 of the Criminal Code. On the fact of extortion of funds by U., the court was also not provided with evidence of his commission of a crime under Article 194 of the Criminal Code. He did not admit guilt in this part and testified that Ts. he contacted his mother I. via Skype, from whom he asked for money for further residence. U. did not receive any money, did not demand it from I., but only informed her that her son C. He needed funds and announced the amount of expenses he actually incurred.
In this regard, the court's conclusions set out in the verdict of U.'s innocence according to the extortion episode, they are based on the evidence examined during the trial and correspond to them, as a result of which the judicial board cannot agree with the arguments of protest in this part. Regarding the accusation of E. causing the death of Ts. due to negligence, the case materials reliably confirmed the fact of causing bodily injuries that resulted in the death of the victim. This circumstance was not denied by E. himself during the pre-trial investigation and in court by the testimony of J. and R. The circumstances of Ts' injuries are also confirmed. The fact of his death and the time of his death were established by the testimony of acquitted persons and witnesses, which are consistent with the case materials, confirmed by the conclusions of forensic biological and forensic medical examinations and indicate the death of the victim directly at the Jam club. According to experts, due to putrefactive changes and burning of the corpse, it is not possible to determine the cause of death of the victim. Therefore, the court's conclusions that the indictment does not specify which part of the head and which part of the table Ts. hit when falling from the impact of E., are untenable. Since this does not refute the conclusions of the prosecution about causing the death of the victim by negligence. In this part, the court, in violation of the requirements of part 1 of Article 125 of the CPC, acquitted E. without examining and evaluating all the available evidence in their entirety, which is reasonably stated in the protest. This violation was not taken into account by the judicial board for criminal cases of the Karaganda Regional Court. In such circumstances, the judicial board considers that the judicial acts rendered by the courts of the first and appellate instances are subject to cancellation in respect of K., A. and amendment in respect of U. in terms of justification under the sub-paragraphs 1), 3), 8), 9) of part 2 of Article 126 of the Criminal Code, as well as in relation to E. in part 1 Article 104 of the Criminal Code, with the referral of the criminal case in this part for a new judicial review to the court of appeal. When reviewing a criminal case again, the court should ensure a full, comprehensive and objective investigation of the circumstances of the case, properly verify all the evidence presented, give them a proper assessment in aggregate and, depending on what is established, make a legitimate and informed decision. In connection with the partial cancellation of the verdict, a private decision of the court of first instance is subject to cancellation. Private decisions of the court of appeal have no effect on the merits of the new consideration of the case and are subject to leave unchanged. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court annulled the judicial acts of the local courts in respect of K. and A.
The same judicial acts in respect of U. and E. were amended and annulled in respect of U. in terms of acquittal on points 1), 3), 8), 9) parts 2 of Article 126 of the Criminal Code and E. – under part 1 of Article 104 of the Criminal Code. The case against K., A., U. on points 1), 3), 8), 9) Part 2 of Article 126 of the Criminal Code and the decision on part 1 of Article 104 of the Criminal Code were sent for a new review by the appellate instance. The acquittal and the decision of the appellate instance in respect of S., Zh., N. in full, in respect of U. under paragraph 1) Parts 2 of Article 194 of the Criminal Code and paragraphs 1), 3), 8) of part 2 of Article 126 of the Criminal Code remained unchanged. The private decision of the court of first instance has been cancelled. The rest of the judicial acts remained unchanged. The protest of the Acting Prosecutor General of the Republic of Kazakhstan was partially satisfied.
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