On re-qualification due to the absence of signs of the composition of the criminal offense

The Republic of Kazakhstan, having established itself as a democratic, secular, legal and social state, its highest values are man, human life, rights and freedoms (paragraph 1 of Article 1 of the Constitution).

At the same time, everyone has the right to protect their rights and freedoms by all means that do not contradict the law and receive qualified legal assistance (paragraphs 1 and 3 of Article 13 of the Constitution).

 Your production is considering the materials of the criminal case No. 255143031000056 against E. K. Abilov on the signs of the composition of the criminal offense provided for by Part 2 of Article 174 of the Criminal Code of the Republic of Kazakhstan.  

During the investigation, E. K. A was detained on March 2, 2025 in accordance with Article 131 of the Criminal Code of the Republic of Kazakhstan for intentional acts aimed at inciting religious discord, insulting national honor and dignity or religious feelings of citizens, and was arrested in a temporary detention center of the Police Department of Maktaaralsky district, and then arrested in a pre-trial detention center, sanctioned by the investigative court.

You can find the following information in a criminal case of your own production: “suspect E. A. from 01.07.2024 to 01.01.2025 his acquaintance was a resident of the House No. 11b, Kazakhstan Street, Atakent Village, Maktaaral district, born on 23.06.1991. In the group "Atakent brethren" and "Brethren" on the social network "watsap", which includes 40 people, "Dilmurat Abu-Muhammad" Mahamatov Dilmurat "and"Nazratullah Abu-Mariam", which are prohibited by law to promote the religion of a negative orientation, deliberately committed crimes related to the property of a serious category by causing religious discord." "you're right."

On March 6, 2025, the actions of the MCI were differentiated under Part 2 of Article 174 of the Criminal Code of the Republic of Kazakhstan.

Article 31 of the code of criminal procedure. As for the concept of” criminal liability for criminal offenses committed by a group", then the code recognizes a criminal offense committed by a group of persons if two or more performers jointly participate in the commission of a criminal offense without prior collusion. - it is said

It is said that if a criminal offense involves persons who have previously agreed to commit it jointly, it is recognized as a criminal offense committed by a group of persons by preliminary conspiracy.

In order to comprehensively investigate these motives, at the request of the defense counsel of 20.04.2025, an additional interrogation was received in my defense E. K. A. as a result of the interrogation, as well as based on the answers of other suspects, the assumption of the investigation that the members of the group committed their actions in a preliminary consultation and collusion did not find its place.

In particular, it was found that members of the group "Atakent brethren" and "Brethren" in the social network "watsap", each consisting of 40 people, sent sermons from the Open Social Network "Dilmurat Abu-Muhammad" Mahamatov Dilmurat and "Nazratullah Abu-Mariam"to the group on the social network watsap voluntarily, voluntarily, not at the request or suggestion of any member of the group.

So, based on these arguments, we believe that the actions of the MCI do not contain the composition of the crime under Part 2 of Article 174 of the Criminal Code of the Republic of Kazakhstan, and it is necessary to re-qualify under Part 1 of Article 174 of the Criminal Code of the Republic of Kazakhstan.

Factual data inadmissible as evidence in accordance with Article 112 of the CPC, if they are obtained in violation of the requirements of this code, contribute or may contribute to the reliability of factual data obtained during a pre-trial investigation or trial of a case by depriving the participants in the process of rights guaranteed by law or by: Factual data obtained in violation of Criminal Procedure Law shall be recognized as inadmissible data as evidence and shall not be subject to prosecution, nor shall they be used in proving any circumstances specified in Article 113 of this code.

In accordance with Section 3 of Article 60 of the Criminal Code of the Republic of Kazakhstan, the investigator is obliged to carry out criminal prosecution by taking all measures for a comprehensive, complete and objective study of the circumstances of the case.

Participants in criminal proceedings have the right to apply to a person conducting a pre-trial investigation in accordance with Article 99 of the Criminal Procedure Code of the Republic of Kazakhstan with a request to establish circumstances relevant in the criminal process, conduct procedural actions or make procedural decisions to ensure the rights and legitimate interests of the person who applied with the petition. It must be satisfied if the petition contributes to a comprehensive, complete and objective study of the circumstances of the case, ensuring the rights and legitimate interests of participants in the process or other persons.

The petition is subject to consideration and resolution as soon as it is declared. In cases where it is not possible to make a decision on the application immediately, it must be resolved no later than three days from the date of its application.

In accordance with Article 24 of the Criminal Code of the Republic of Kazakhstan, the investigator, Inquirer is obliged to take all measures provided for by law for a comprehensive, complete and objective study of the circumstances necessary and sufficient for the correct resolution of the case.

Based on the above and in accordance with articles 24, 99, 112, 210, 211 of the Criminal Code of the Republic of Kazakhstan, please:

* Re-qualification of the actions of a suspected MCI under Part 1 of Article 174 of the Criminal Code of the Republic of Kazakhstan;

* Respond to this request within the time limits established by Article 99 of the Criminal Code of the Republic of Kazakhstan.

   "31 ""April" in 2025, the senior investigator of the Maktaral APB, Police Captain D. Zhaksylyk, considered and determined the materials of the criminal case number No. 255143031000056:

During the investigation of the criminal case number 255143031000006 in the production of maktaaral APB, it was found that during the examination of the mobile phone of a citizen M. B. E. in the vatsap social network "Atakent brothers" and "Brothers" groups named A. E. K, G. F. A. as a group of Citizens published audio and video recordings that provoked social, National , Tribal, racial, family-group or religious discord.

On this fact, the MAKTAARAL APB initiated a pre-trial investigation of the number No. 255143031000056 under Part 2 of Article 174 of the Criminal Code of the Republic of Kazakhstan on 28.02.2025.

On 29.04.2025, the lawyer of the Almaty City Bar Association Sarzhanov Galymzhan Turlybekovich, who has a license No. 20015783 to engage in advocacy under the name of the suspect E., wrote an application through the e-application portal under the number ZT-2025-01413865.

In this letter of appeal, the suspect asked to re-qualify the actions of the name E. In Part 1 of Article 174 of the Criminal Code of the Republic of Kazakhstan.

The claim of the defense lawyer Sarzhanov Galymzhan Turlybekovich is subject to satisfaction due to the absence of obstacles to the objective and comprehensive conduct of pre-trial investigation.

Based on the above, guided by articles 67, 66 and 198 of the Criminal Code of the Republic of Kazakhstan,

RESOLUTION ЕТТІМ:                            

1.in the criminal case No. 255143031000056, the application letter of Sarzhanov Galymzhan Turlybekovich with the number ZT-2025-01413865 should be satisfied.

2 send a copy of the resolution to the prosecutor of Maktaaral district.

3.inform interested persons about the decision taken. 

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