Private complaint to the Criminal Appeals Board against a court order authorizing a preventive measure in the form of detention
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To the Criminal Appeals Board of the Almaty City Court
Almaty, 050000, Kazybek Bi street, 66.
0201@sud.kz
from: Defense attorney Galymzhan Turlybekovich Sarzhanov
Law and Law Law Firm
BIN 201240021767
79/71 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 978 5755; +7 708 578 5758.
In the interests of: suspect R.E.E.
………... year of birth
IIN ..............
Private complaint
on the court's decision to authorize a preventive measure in the form of detention for a period of 2 (two) months
May 25, 2023 The investigating judge of the Specialized Interdistrict Investigative Court of Almaty, A.A.A., with the participation of the prosecutor of the Almaly district Prosecutor's Office of Almaty, R.E.E., the suspect, R.E.E., the defense lawyer, G.T. Sarzhanov, having considered in open court through the Ministry of Internal Affairs, the petition of the investigator from the Almaly district Police Department of Almaty, Amitzhanov Zh.T. on the application of a preventive measure in In the form of detention for a period of 2 (two) months, the Court ruled – to satisfy the petition of the senior investigator from the Almaly district of Almaty, A.Zh.T., to satisfy.
To authorize the application of a preventive measure in the form of detention in respect of suspect R.E.E. for a period of 2 (two) months.
To refuse to grant a petition for the application of a preventive measure in the form of house arrest.
Prior to the start of the trial, the defense party sent to the court through the judicial cabinet a Motion to dismiss the application of a preventive measure in the form of detention for a period of 2 months, to which the court did not pay attention to the arguments given in it and did not examine the attached refuting evidence of the defense.
Article 19 of the Criminal Procedure Code of the Republic of Kazakhstan "Presumption of innocence" stipulates that everyone is considered innocent until his guilt in committing a criminal offense is proven in accordance with the procedure provided for in this Code and established by a court verdict that has entered into force. No one has to prove their innocence.
Irremediable doubts about the guilt of the suspect, the accused, the defendant are interpreted in their favor. Doubts arising in the application of criminal and criminal procedure laws should also be resolved in favor of the suspect, the accused, and the defendant.
We do not agree with the Court's Ruling, and we consider it illegal and unjustified due to the following circumstances:
In the proceedings of the SB UP of the Almaly district of the DP of Almaty, the Senior investigator, Police Major A.Zh.T., is investigating a criminal case registered in the ERDR for No. 237511031001537 dated May 13, 2023 under art. 190, Part 3, paragraph 4 of the Criminal Code of the Republic of Kazakhstan. Fraud against two or more persons is not repeated.
The arguments of the pre-trial investigation body that "In carrying out his criminal intent aimed at committing fraud, in June 2022, E.E. Raiskanov used three individual businesses:
1) IP "Raismut" registered in the name of the mother – A.F.S. .......... year of birth, IIN ............ with a legal address: Almaty, pr......
2) IP "Raiskanov" registered through the application of JSC "Kaspiy Bank" in the name of his brother – R.R.E........ year of birth IIN ........., with a legal address: 28/3 Baisheva St., office No. 80, Almaty;
3) IP "Raiskanov" registered through the application of JSC "Kaspiy Bank" in his name R.E.E. ........... year of birth IIN ..........., with a legal address: 86 Zhumalieva St., office 103, Almaty."
- we disagree as the use of several legal entities is widely used in entrepreneurial activity. In addition, the above-mentioned individual entrepreneurs are all registered to close people, that is, to my mother and siblings, and not to third parties whom the suspect R.E.E. did not know or had no relation to. According to these facts, we believe that the pre-trial investigation excessively exaggerates the guilt of my client in fraud.
The following arguments of the investigator that the suspect used a legally non-existent address of the production shop: Irgeli village, 2B Merey Street.
– it is not viable because this assembly shop was voluntarily provided by one of the victims, J.H., who on May 19, 2023, in the protocol of the confrontation, stated that he provided premises for the assembly shop. Subsequently, due to the remoteness of the location of the assembly shop, R.E.E. and his team of craftsmen moved to another assembly shop located at 32 Dostyk Street, Kaskelen, Karasai district, Almaty region. These arguments were given in the protocol of the interrogation at the suspect's office. In addition, a request dated 05/21/2023 was sent to the investigator by the defense to conduct a video inspection at the above address, but to this day the inspection of the communications assembly shop has not been carried out. We provide the court with photos and videos of the assembly shop.Koksai, 2B Merey Street and Kaskelen city, 32 Dostyk Street.
The pre-trial investigation body pays special attention to the fact that E.E. Raiskanov created an account called Izumrud_Mebel in the Instagram social network to attract more citizens, in which he posted photos of manufactured furniture, disguising his criminal intent aimed at repeatedly stealing other people's property by deception, abusing trust in civil law relations, he signed fictitious contracts with his own hand, without having a corresponding power of attorney from the owners of the sole proprietor, knowing full well, that these agreements would not have legal force within the framework of the legislation of the Republic of Kazakhstan, without intending to manufacture and install furniture, only carrying out measurements and calculations of work, stole money as an advance in the amount of 50-70% of the total amount, and spent the stolen money on his own needs.
-We also disagree with these arguments, since in today's realities it is not possible to create a successful development without the help of the social pages of the Internet space of the social network Instagram, why all the actions of R.E.E., on the part of the pre-trial investigation body are accepted as fictitious and fraudulent actions, whereas in fact R.E.E. He was engaged in entrepreneurial activities and during the interrogation sincerely told and provided the investigator with all information on clients. In total, since the beginning of the year, R.E.E., more than 100 clients have been served, of which he was unable to deliver goods to less than 40 clients, of which about 20 clients were refunded in full and or in part, as indicated in the protocols of the confrontation. These arguments are given.
The pre-trial investigation department notes that R.E.E. did not have a power of attorney to conduct business on behalf of other sole proprietors - we also consider them to be unfit, while the defense attached a power of attorney from R.R.E. to R.E.E. dated 04.10.2022 for a period of 3 years. Since basically all contracts were concluded for the sole proprietor of R. E. himself and his brother R.R.
In addition, all the victims' contracts currently have their own legal force and they have not been recognized as invalid and/or void by the victims in accordance with Articles 157, 158, 159 of the Civil Code of the Republic of Kazakhstan.
The pre-trial investigation body also bases its arguments on "Article 136, Part 1 of the Criminal Procedure Code of the Republic of Kazakhstan, if there are sufficient grounds to believe that the suspect(s) will hide from criminal prosecution or court authorities, or obstruct an objective investigation of the case or its trial in court, or will continue to engage in criminal activities, as well as to ensure the execution of the sentence A person conducting criminal proceedings, within the limits of his powers, has the right to apply to this person one of the preventive measures provided for in art. 137 of this Code.
- We consider the above arguments to be unsound, since R.E.E. himself fully provided the pre-trial investigation authorities with a list of debtors and a list of fulfilled obligations. Prior to the start of the investigation of the criminal case, R.E.E. was also called by other police departments of the Auyezovsky and Turksib districts, where R.E.E. always arrived without delay. In addition, during his stay under house arrest, R.E.E. did not violate the conditions of house arrest.
Dear Court, We do not agree with the charges against my client, as there are no grounds for detention. The defendant, R.E.E., is a certified specialist in the field of construction and design, graduated from KAZGAS in 2018, has no previous criminal record, has not been brought to criminal responsibility, has a permanent place of residence, and his identity has been established. R.E.E., I do not intend to hide from the criminal prosecution authorities or the court, or to obstruct an objective investigation of the case or its trial in court. Entrepreneurial activity to attract new customers has been completely stopped today and the last customers who showed patience and waited their turn are being finished off in the assembly shop.
In addition, R.E.E. has a minor child from his marriage to his spouse from R.S.A.:
E.A.E. ..........year of birth.
We also believe that the actions of the defendant are not qualified correctly. There are grounds for exemption from criminal liability and further detention in accordance with Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan, which stipulates that the proceedings are terminated on the grounds provided for in paragraphs 1) and 2) of part one of this Article, both if the absence of a criminal offense event or composition of a criminal offense is proven, and if their presence is not proven, if all possibilities for collecting additional evidence have been exhausted.
This is evidenced by the testimony of witnesses and victims that, in fact, my client was engaged in entrepreneurial activity and has an operating workshop for the manufacture of furniture and there are executed transactions on obligations. In addition, all victims have written Agreements and refunds have been made for many victims.
According to Part 2 of Article 138 of the Criminal Procedure Code of the Republic of Kazakhstan (Circumstances taken into account when choosing a preventive measure and establishing additional restrictions) In the absence of the grounds listed in Article 136 of the Criminal Procedure Code of the Republic of Kazakhstan (the defendant does not intend to hide from the criminal prosecution authorities or the court, or they will prevent an objective investigation of the case or its trial in court), the severity of the crime committed cannot be the only reason for choosing a preventive measure in the form of detention.
According to art.136 part 1-1 of the Criminal Procedure Code of the Republic of Kazakhstan. 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, provided for in art. 137, paragraph 1, paragraph 1.2.3.4.5.6.
Article 147 of the CPC of the Republic of Kazakhstan clearly stipulates that detention as a preventive measure is applied only with the approval of a judge and only in relation to a suspect, accused, or defendant in a crime for which the law provides for a penalty of imprisonment for a period of more than five years, if it is impossible to apply other, less stringent preventive measures. In exceptional cases, this preventive measure may be applied against a person suspected, accused, or accused of committing a crime for which the law provides for a penalty of up to five years' imprisonment if:
1) he does not have a permanent place of residence in the territory of the Republic of Kazakhstan;
2) his identity has not been established;
3) he violated a previously chosen preventive measure or a measure of procedural coercion;
4) he tried to escape or escaped from the authorities of criminal prosecution or court;
5) he is suspected of committing a crime as part of an organized group or criminal community (criminal organization);
6) he has a criminal record for a previously committed grave or especially grave crime;
7) there is evidence of his continued criminal activity.
The circumstance provided for in paragraph 1) According to the first part of this article, it cannot be the only reason for choosing a preventive measure in the form of detention.
The investigating judge argues that "he takes into account the severity and nature of the criminal offense of which R.E.E. is suspected and considers it necessary to authorize a preventive measure in the form of detention against him, since the suspect is suspected of 20 episodes of fraud, the material damage caused to the victims has not been compensated. In these circumstances, the investigating judge believes that the suspect may hide from the investigating authorities and the court in order to avoid punishment, thereby obstructing the pre-trial investigation."
The above-mentioned arguments of the court prove once again that
The arguments presented by the co-authors of the defense have not been studied and an appropriate legal assessment has not been given. The court formally approached the evidence provided by the defense and granted the Request for a pre-trial investigation.
According to art. 107, Part 2 of the CPC of the Republic of Kazakhstan, which provides that the decision of the investigating judge, issued in accordance with the rules of this article, within three days from the date of its announcement may be appealed by the persons specified in the first part of this article, as well as the prosecutor may bring a petition to the regional and equivalent the trial is conducted through the court, the investigating judge of which issued the decision.
Based on the above and in accordance with art. 107 of the Criminal Procedure Code of the Republic of Kazakhstan,
I ask the Court:
The court's decision on authorizing a preventive measure in the form of detention for a period of 2 (two) months dated May 25, 2023 - to cancel;
To issue a new resolution on the refusal to satisfy the petition of the investigator of the Almaly district Police Department of Almaty A.Zh.T. on the application of a preventive measure in the form of detention for a period of 2 (two) months;
Apply to R.E.E., a less strict measure of restraint (recognizance, house arrest) not related to isolation from society.
With respect,
defender: _________/Sarzhanov G.T.
"___"___________2023 G.
Attention!
The Law and Law Law Firm draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you with legal advice and drafting any legal document that suits your situation.
For more information, please contact a Lawyer/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases disputes Defense Arbitration Law Company Kazakhstan Law Firm Court cases
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.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
