Recognition of the actions of the investigator and the prosecutor as illegal by the refusal to admit a defense lawyer
The proceedings included the materials of the criminal case against R.E.E., born on September 16, 1996, 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. Where the suspect asked the judicial investigation authority for the appointment of R.S.A. on the basis of marriage certificate No. 217 dated 12.02.2023, she is the spouse of the suspect R.E.E.
According to art. 66, part 2 of the CPC of the Republic of Kazakhstan, a lawyer participates as a defender. With the participation of a lawyer in criminal proceedings as a defender, along with him, upon a written application from a witness entitled to defend, a suspect, accused, defendant, convicted, acquitted, one of the following persons may defend them: a spouse or a close relative. On the basis of the above and in accordance with Articles 66, Part 2, Articles 70, 99, of the Criminal Procedure Code of the Republic of Kazakhstan, I asked the investigator to Recognize R.S.A. as the defender of the suspect(s) R.E.E.
To respond within the time limits prescribed by law.
However, the investigator did not respond within the time limits prescribed by law and simply ignored the statement of the suspect R.E.E.
Having failed to receive a response within the established time frame, complaints were filed about the investigator's inaction to the Almaly district Prosecutor's Office against the investigator for late response to the petition. And 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.
Part 1 of Article 23 of the Criminal Procedure Code of the Republic of Kazakhstan establishes that criminal proceedings are conducted on the basis of the principle of competition and equality of the parties to the prosecution and defense.
On the basis of paragraph 2) of part 2 of Article 70 of the CPC, the defender has the right to collect and present objects, documents, information, as well as other data necessary for the provision of legal assistance, which are subject to attachment to the materials of the criminal case.
Thus, on the basis of the above-mentioned norms in the framework of this criminal case, the defense has repeatedly filed the following petitions:
A petition for attaching documents to the materials of the criminal case dated 05/15/2023, registered No. ZT-2023-00845271, to which the response was received on June 01, 2023;
Application for admission of a defender dated May 15, 2023, registered No. ZT-2023-00844949, to which the response was received on June 01, 2023;
A petition for the attachment of documents to the materials of the criminal case dated 05/18/2023, registered No. ZT-2023-00878648, to which there is still no response.;
A petition for the attachment of documents to the materials of the criminal case dated 05/18/2023, registered No. ZT-2023-00879589, to which there is still no response.;
A request for inspection with video recording of the assembly shop in the framework of the criminal case dated 05/21/2023, registered No. ZT-2023-00894995, which has not been answered to this day.;
A petition for the attachment of documents to the materials of the criminal case dated 05/21/2023, registered No. ZT-2023-00895031, to which there is still no response.;
A petition for the attachment of documents to the materials of the criminal case dated 05/21/2023, registered No.ZT-2023-00895034, to which there is still no response.;
A petition for the attachment of documents to the materials of the criminal case dated 05/21/2023, registered No.ZT-2023-00895046, to which there is still no response.;
Petition dated 05/21/2023, registered No. ZHT-2023-00948225 for recognition of R.S.A. IIN . the additional defender of the suspect, R.E.E., in the framework of the criminal case, which has not been answered to this day.;
On the basis of paragraph 2) of part 2 of Article 70 of the CPC, the defender has the right to collect and present objects, documents, information, as well as other data necessary for the provision of legal assistance, which are subject to attachment to the materials of the criminal case.
In accordance with the provisions of part 3 of Article 122 of the CPC, the defender has the right to obtain information necessary for the protection by requesting certificates, characteristics, and other documents from legal entities. Such documents may be requested by the defender from government agencies, public associations, as well as other legal entities.
According to part 4 of the same article of the CPC, the suspect, the accused, the defense attorney, the private prosecutor, the victim, the civil plaintiff, the civil defendant and their representatives, as well as any citizens and their representatives, are entitled to provide information both orally and in writing, as well as items and documents for attaching them as evidence in a criminal case. organizations.
Article 99 of the CPC of the Republic of Kazakhstan provides that participants in criminal proceedings have the right to apply to the person conducting the pre-trial investigation with requests for procedural actions or making procedural decisions to establish circumstances relevant during the criminal process, to ensure the rights and legitimate interests of the person who filed the petition or the person they represent. The application is subject to review and resolution immediately after its application. In cases where an immediate decision on the application is not possible, it must be resolved no later than three days from the date of the application.
102 of the Criminal Procedure Code of the Republic of Kazakhstan, complaints against the actions and decisions of an inquirer, body of inquiry, investigator, prosecutor, judge or court may be filed during the entire pre-trial investigation and trial. Complaints against the decision to terminate a criminal case at the pre-trial stage may be filed within one year from the date of the relevant decision of the criminal prosecution body or its approval by the prosecutor.
According to Article 105 of the Criminal Procedure Code of the Republic of Kazakhstan, complaints filed by persons defending their or represented rights and interests against the actions (inaction) and decisions of persons conducting a pre-trial investigation are submitted to the head of the investigative department, the head of the body of inquiry, the prosecutor or the court.
On the grounds of the above and in accordance with Articles 23, 70, 90, 122 of the Criminal Procedure Code of the Republic of Kazakhstan, the supervisory authority was asked to oblige the pre-trial investigation body to immediately respond to all sent petitions; To bring to disciplinary responsibility an official who committed a violation of the norms of procedural law; To provide an extract from the order on bringing to disciplinary responsibility an official who committed a violation of the rules of procedural law; Respond to the complaint within the prescribed time limits.
However, for reasons unknown to us, the Supervisory Authority forwarded our complaint to the Police Department.
Having disagreed with the redirection of our complaint, we filed a Complaint with the Specialized Interdistrict Investigative Court against the investigator for the late response to the lawyer's request, as well as the inaction of the Almaly District Prosecutor's Office to redirect the complaint to the Almaty City Police Department.
Accordingly, referring to the above, we submitted the above-mentioned petitions to the investigator for the conduct of procedural actions by the criminal prosecution authority. However, modern measures were not taken on these petitions, violating the norm of Article 99 of the Criminal Procedure Code of the Republic of Kazakhstan.
In addition, the pre-trial investigation body has not conducted any investigative actions since the suspect's arrest for two weeks In accordance with Part 1, Article 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.
Subsequently, on 06/03/2023, we filed a complaint with the Almaly district Prosecutor's Office of Almaty about the inaction of the senior investigator from the Almaly district Police Department, police Major A.J.T., where they asked to oblige the pre-trial investigation body to immediately respond to all sent petitions; To bring to disciplinary responsibility an official who violated the norms of procedural law;
However, according to the information of the system eotinish.kz , June 08, 2023, the prosecutor of the department - the Almaly District Prosecutor's Office T.K.K. reviewed and fully forwarded our appeal (Complaint) No.ZT-2023-01000425, which was received by the Almaly District Prosecutor's Office at the State Institution "Almaty City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" for consideration according to article 65 of the CPC RK. "Redirection of an appeal to an authorized administrative body, official 1. An appeal received by an administrative body or an official whose authority does not include consideration of this appeal is forwarded to the authorized administrative body or official within three working days from the date of its receipt, with simultaneous notification (notification) of the participant in the administrative procedure."
We do not agree with the indicated inaction of the Almaly District Prosecutor's Office, since our complaint is directly subject to consideration by the prosecutor's office as the supervisory authority for law enforcement over the criminal prosecution body.
We believe that my client's actions are not objectively qualified. There are agreements and decisions of the civil court on this fact and, accordingly, it is necessary to conduct investigative actions, which we indicated in the Petitions.
We believe that my client's actions are not objectively qualified. There are agreements and decisions of the civil court on this fact and, accordingly, it is necessary to conduct investigative actions, which we indicated in the Petitions.
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.
When considering a complaint, the court, without evaluating the evidence available in the case, must find out whether all the circumstances indicated by the applicant in the complaint have been verified and taken into account by the inquirer, investigator, prosecutor. At the same time, the court, without making conclusions about the proof or lack of proof of guilt, the admissibility or inadmissibility of the collected evidence, must verify the presence or absence of substantive and procedural grounds for making a decision on the case.
In accordance with paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 27, 2012 No. 3 on consideration by courts of complaints against actions (inaction) and decisions of the prosecutor, criminal prosecution authorities (Article 106 of the Criminal Procedure Code of the Republic of Kazakhstan) (hereinafter referred to as the resolution) where it is stipulated that the law does not prohibit the filing of complaints against actions (inaction) and decisions of the bodies of inquiry, preliminary investigation, prosecutor also during the consideration of a criminal case in court. In such cases, the court considers complaints from the perspective of verifying the legality of the proceedings and the admissibility of evidence obtained as a result of the actions (inaction) or decisions being appealed, and makes an appropriate decision when evaluating evidence in the case under consideration.
Based on the above and in accordance with Articles 15, 24, 100, 106 of the Criminal Procedure Code of the Republic of Kazakhstan, the court was asked to recognize the inaction of the senior investigator from the Almaly district Police Department of Almaty, police Major A.Zh.T., on the late response to the lawyer's petition, as illegal; To recognize the action of the Prosecutor of Almaly district Almaty T.K.K., on redirection of the appeal (Complaint) under No.ZT-2023-01000425, received by the Almaly district Prosecutor's Office at the State Institution "Almaty City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" for consideration in accordance with Article 65 of the CPC of the Republic of Kazakhstan.- illegal; To assign to the prosecutor of Almalinsky and SO UP Almalinsky district of Almaty the responsibility to eliminate the violation of the rights and legitimate interests of R.E.E., in criminal case No. 237511031001537 to immediately respond to all sent petitions.
During the trial, all our arguments were supported by the court and all our demands were satisfied.
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