The Judgment Finding a Person Guilty of Distributing Sermons Prohibited by Law for the Purpose of Inciting Religious Discord Was Amended on Appeal

On 30 December 2025, the Maktaaral District Court of Turkestan Region rendered a judgment in criminal case No. 5143-25-00-1/47.

By the judgment of the court, B E M was found guilty under Part 2 of Article 174 of the Criminal Code of the Republic of Kazakhstan and was sentenced to 6 years of imprisonment.

B E M was ordered to serve the imposed sentence in a medium-security institution of the penal enforcement system.

Pursuant to subparagraph 2) of part 3 of Article 62 of the Criminal Code of the Republic of Kazakhstan, the period during which B E M was held in custody from 28 February 2025 until the judgment entered into legal force was credited towards the term of sentence at the rate of one day for one and a half days of imprisonment.

The measure of restraint in the form of “detention in custody” imposed on B E M was left unchanged, and the term of serving the sentence was calculated from 28 February 2025.

In particular, the court found defendant B. M guilty of repeatedly uploading and distributing sermons prohibited by law to his mobile phone for the purpose of inciting religious discord.

Article 9 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC) provides:

“Principles of criminal proceedings and their significance

1. The principles are the fundamental principles determining the general conditions for the exercise of the rights and duties of participants in criminal proceedings and the system and content of the stages, institutions and norms of criminal proceedings ensuring the resolution of the tasks facing criminal proceedings themselves.
2. Violation of the principles of criminal proceedings, depending on its nature and significance, entails recognition of a procedural action or decision as unlawful, cancellation of decisions made during such proceedings, or recognition of the materials collected in this regard as having no evidentiary force or recognition of the proceedings conducted in the case as invalid.”

Article 10 of the CPC provides:

“Legality

1. The court, prosecutor, investigator, body of inquiry and person conducting the inquiry shall, when conducting proceedings in criminal cases, strictly comply with the requirements of the Constitution of the Republic of Kazakhstan, this Code and other regulatory legal acts specified in Article 1 of this Code.”

Due to the gross violation of the requirements of the above-mentioned articles of the CPC, we consider the judgment of the Maktaaral District Court of Turkestan Region in respect of B E M unlawful and consider it necessary to quash it and render an acquittal judgment on the following grounds.

The court found B E M guilty of the charge brought against him and cited the following evidence in the judgment.

WITH REGARD TO THE FIRST EPISODE OF THE CHARGE, THE COURT ACCEPTED THE FOLLOWING TESTIMONY AS EVIDENCE:

· according to the protocol of seizure dated 1 October 2024, a mobile phone of the “Samsung Galaxy S10” brand, purchased on 1 October 2024 at 12:05 from a citizen named “C”, was seized from a citizen named “A”;

· the protocol and photographs of the inspection of items dated 1 October 2024 concerning the “Samsung Galaxy S10” telephone;

· it was established that the theologians of the Communal State Institution “Center for the Study of Religious Issues” of the State Institution “Department for Religious Affairs of Turkestan Region”, specialists A. Bolat, N. Abukhan and D. Ziyabek, identified more than 100 audio lectures, more than 30 YouTube and Instagram links, PDF books and 4 copies of the book “Three Foundations, Texts of Aqidah in Arabic” by preachers of a non-traditional movement prohibited in the territory of the Republic of Kazakhstan, Dilmuрат Abu Muhammad, Nazratullah Abu Maryam and Sheikh Fawzan, on a laptop, memory card, mobile communication telephones, books and notebooks seized from the house No. 11 on Kazakhstan Street in Atakent settlement, Maktaaral District, and from kiosk No. 5 “Mobil” selling telephone accessories at the central market of Atakent settlement.

Based on the totality of the evidence submitted to the court by the above-mentioned investigative authorities, the relevance, admissibility, reliability and sufficiency of the evidence for finding B. M guilty of inciting religious discord raise doubts.

First, pursuant to the requirements of part 3 of Article 97 of the CPC, restriction of access to information concerning a protected person may take place from the beginning of criminal proceedings upon the person’s application and consists in removing information about the person’s personal data from the materials of the criminal case and keeping it separately from the main proceedings, and in such person using an alias. The person conducting the pre-trial investigation shall issue a resolution on applying this measure, which shall state the reasons for the decision taken to keep confidential the data concerning the identity of the protected person, and shall indicate the alias and specimen signature used in the protocols of investigative actions conducted with the participation of the protected person. Procedural actions with the participation of the protected person shall, where necessary, be conducted under conditions preventing his or her identification.

Second, pursuant to the requirement of part 15 of Article 254 of the CPC, during a seizure, the items and documents to be seized shall be shown to the persons present, packaged and sealed at the place of seizure and certified by the signatures of the other persons participating therein.

However, the evidence confirming B.M’s guilt contained in the criminal case materials is subject to being declared unlawful. This is because the criminal case materials contain:

• no statement by the citizen named “A” (including a warning to the citizen named “A” of liability for making a false report);
• no interrogation protocol of the citizen named “A”;
• the protocol of seizure of the “Samsung Galaxy S10” mobile phone from the citizen named “A” contains no information concerning its packaging, sealing at the place of seizure and certification by the signatures of the other persons participating therein;
• no protocol for presenting B. M for identification to the citizen named “A” (or identification of B. M by photograph);
• the protocol of inspection of the “Samsung Galaxy S10” mobile phone contains no information concerning the discovery of the file named “d-lm-rat-bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” and its copying to a disk or other information storage device;
• there is no resolution recognizing as physical evidence the file named “d-lm-rat-bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” found on the “Samsung Galaxy S10” mobile phone (criminal case registered in the ERDR under No. 245143031000286);
• in the protocol of inspection of the “Samsung Galaxy S10” mobile phone dated 01.10.2024, investigator D. Zhaksylyk and forensic specialist A. Amzeev wrote that “audio recordings were identified”. However, neither what audio recordings nor their names were indicated. Moreover, the list of audio recordings was not photographed and included in the photo table.

In addition, the criminal case materials contain only identical statements by two persons named Fayziyev Yu.P. and Khan, with neither the date on which they were written or submitted nor registration marks indicated. Thus, information establishing the existence of the citizen named “A” was not registered in the criminal case materials.

Furthermore, during the main trial, the Maktaaral District Court of Turkestan Region did not interrogate the citizen named “A”.

Thus, it is obvious that any person could have inserted the file named “d-lm-rat-bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” into the memory of the “Samsung Galaxy S10” mobile phone.

Furthermore, the criminal case materials contain Expert Opinion No. 721 dated 07.04.2025 issued in Russian (Заключение эксперта №721 от 07.04.2025 г.). Particular attention must be paid to it. Since, in the resolution appointing the examination, the investigator asked the following questions: “Were the Samsung Galaxy S10, Samsung Galaxy A14, Samsung Galaxy A72, Samsung Galaxy A53 mobile phones connected to a FUJITSU laptop?” and “Were any files downloaded from the FUJITSU laptop onto the Samsung Galaxy S10, Samsung Galaxy A14, Samsung Galaxy A72, Samsung Galaxy A53 mobile phones?” (in brief), the Expert Opinion No. 721 dated 07.04.2025 issued in Russian does not provide specific answers to these questions (Заключение эксперта №721 от 07.04.2025 г.). Pursuant to subparagraph 2) of part 5 of Article 79 of the CPC, “the expert shall conduct a comprehensive, complete and objective examination of the objects submitted to him/her, and shall provide a reasoned and objective written opinion on the questions posed.” Thus, the Expert Opinion No. 721 dated 07.04.2025 issued in Russian (Заключение эксперта №721 от 07.04.2025 г.) is subject to interpretation in favor of B. M pursuant to Article 19 of the CPC.

Furthermore, according to the criminal case materials, an audio recording named “d-lm-rat- bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” was found in the memory of the mobile phones seized during the investigation. However, an audio recording named “Д лм рат бу Мухаммад - Бидагатка ерушилерди калай жек көремиз.mp3” was found in the memory of the “FIJUTSU” brand laptop seized during the investigation. In this regard, the question arises as to what relation the audio recording named “d-lm-rat- bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3”, stored on the mobile phones in Latin script, has to the audio recording named “Д лм рат бу Мухаммад - Бидагатка ерушилерди калай жек көремиз.mp3” stored on the “FIJUTSU” laptop in Cyrillic script. This is one issue.

Second, during the investigation, no comparative analysis was conducted between the audio recording named “d-lm-rat- bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” and the audio recording named “Д лм рат бу Мухаммад - Бидагатка ерушилерди калай жек көремиз.mp3”; the correspondence of their texts, the length of the recordings and the similarity of the voices were not established. Thus, the accusation that B. M distributed the audio recordings through the “FIJUTSU” brand laptop is completely disproved.

Pursuant to Article 112 of the CPC:

“1. Actual data shall be recognized as inadmissible as evidence if they are obtained in violation of the requirements of this Code, and if they have affected or may have affected the reliability of the actual data obtained by depriving or restricting participants in the proceedings of the rights guaranteed by law during the pre-trial investigation or consideration of the case in court, or by violating other rules of criminal proceedings, including:

2) through the use of the person’s misconception arising as a result of failure to explain, incomplete or incorrect explanation to a person participating in criminal proceedings of his or her rights and duties;

5) through a material violation of the procedure for conducting a procedural action;

6) from an unknown source or from a source that cannot be established at the court hearing;

1. through the use, during proof, of methods contrary to modern scientific knowledge.
2. Actual data obtained in violation of criminal procedure law shall be recognized as data inadmissible as evidence and may not form the basis of the accusation and may not be used in proving any of the circumstances specified in Article 113 of this Code.”

Thus, since the criminal case materials contain no statement of the above-mentioned citizen named “A”, no protocols concerning procedural actions involving the citizen named “A”, and no resolutions on the adoption of procedural decisions, the pre-trial proceedings in criminal case No. 245143031000286 registered in the ERDR should be declared completely unlawful.

Accordingly, the resolution appointing the examination dated 02.10.2024, Expert Opinion No. 98 (comprehensive) dated 01.11.2024, and the resolution dated 25.05.2025 on consolidation of criminal cases Nos. 245143031000286 and 255143031000056 registered in the ERDR are also subject to being declared unlawful, and they may not be included as evidence confirming B. M’s guilt in the criminal case.

In this regard, B E M should be acquitted of the charge under the first episode, namely, that on 31 August 2024 at approximately 12:00, for the purpose of inciting religious discord, at the “SMARTTEL” mobile phone repair center located at the central market on Ibrayev Street in Atakent settlement, Maktaaral District, while promoting the “Salafism” movement of the negative direction of Islam adhered to by him, he offered mobile phones displayed for sale to customers who came to purchase a mobile phone and, when a customer stated that he intended to purchase a mobile phone, distributed sermons of “Dilmutrat Abu-Muhammad” and “Nazratullah Abu-Maryam” prohibited by law by downloading them onto the mobile phone being sold through his “Fijutsu” brand laptop.

WITH REGARD TO THE SECOND EPISODE OF THE CHARGE, THE COURT ACCEPTED THE FOLLOWING TESTIMONY AS EVIDENCE:

· the protocol of processing and returning money dated 10 January 2025, i.e., at approximately 12:30 on 10 January 2025, four 5,000-tenge banknotes, totaling 20,000 tenge, were given to the person using the alias “Vasya”;

· the protocols of handing over a special device to the person using the alias “Vasya” and receiving the special device back dated 10 January 2025;

· according to the protocol of seizure of things and documents dated 10 January 2025, at 12:56 on 10 January 2025, a “Samsung A14” mobile phone, IMEL 355009522206830/01, 357237922206831/01, purchased from B.M by a citizen named “V”, and one 5,000-tenge banknote No. ГК 7852993 were seized;

· the protocol of inspection of physical evidence dated 25 February 2025 with the participation of theologians of the Communal State Institution “Center for the Study of Religious Issues” of the State Institution “Department for Religious Affairs of Turkestan Region”;

· the protocol of search of residential premises and auxiliary buildings dated 28 February 2025, which records that a search was conducted at the mobile phone repair kiosk at the central market of Atakent settlement;

· the protocol of search of residential premises and auxiliary buildings dated 28 February 2025, which records that a search was conducted at the address: Atakent settlement, 11B Kazakhstan Street;

· according to Expert Opinion No. 98 dated 1 November 2024 of the expert who conducted the forensic psychological-philological and forensic religious studies examination, a compact disc “SOKCK DVD+R 4.7 GB/120 min 1-16Х RW DVD+R” was submitted for examination, and the texts of the audio recording “d-lm-rat- bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” submitted for examination contained ideas of religious enmity of one religious group against another;

· according to Expert Opinion No. 7 dated 7 February 2025 of the expert who conducted the forensic psychological-philological and forensic religious studies examination, a compact disc “SOKCK DVD+R 4.7 GB/120 min 1-16Х RW DVD+R” was submitted for examination, and the texts of the audio recording “d-lm-rat- bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” submitted for examination contained ideas of religious enmity of one religious group against another;

· according to Expert Opinion No. 61 of the forensic religious studies expert dated 21 April 2025, two “DVD+R” compact discs seized from B.M’s telephone were submitted, and it was established that the materials submitted for examination contained ideas preaching religious enmity and discord of one religious group (supporters of Salafism) against another group (Jews and Christians, ahl al-bid‘ah, Shiites, Rafidites and Sufis).

The above-mentioned totality of evidence submitted to the court by the investigative authorities raises doubts as to its relevance, admissibility, reliability and sufficiency for finding B. M guilty of inciting religious discord.

First, pursuant to the requirements of part 3 of Article 97 of the Criminal Procedure Code, restriction of access to information concerning a protected person may take place from the beginning of criminal proceedings upon the person’s application and consists in removing information about the person’s personal data from the materials of the criminal case and keeping it separately from the main proceedings, and in such person using an alias. The person conducting the pre-trial investigation shall issue a resolution on applying this measure, which shall state the reasons for the decision taken to keep confidential the data concerning the identity of the protected person, and shall indicate the alias and specimen signature used in the protocols of investigative actions conducted with the participation of the protected person. Procedural actions with the participation of the protected person shall, where necessary, be conducted under conditions preventing his or her identification.

Second, pursuant to the requirement of part 15 of Article 254 of the CPC, during a seizure, the items and documents to be seized shall be shown to the persons present, packaged and sealed at the place of seizure and certified by the signatures of the other persons participating therein.

However, the evidence confirming B.M’s guilt contained in the criminal case materials is subject to being declared unlawful. This is because the criminal case materials contain:

• the statement of the citizen named “Vasya” contains no information concerning the date of its submission and no registration mark;
• no interrogation protocol of the citizen named “Vasya”;
• the protocol of seizure of the “Samsung A14” mobile phone from the citizen named “Vasya” dated 10.01.2025 contains no information concerning its packaging, sealing at the place of seizure and certification by the signatures of the other persons participating therein;
• no protocol for presenting B. M for identification to the citizen named “Vasya” (or identification of B. M by photograph);
• the protocol of inspection of the “Samsung A14” mobile phone contains no information concerning the discovery of the file named “d-lm-rat-bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” and its copying to a disk or other information storage device;
• there is no resolution recognizing as physical evidence the file named “d-lm-rat-bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” found on the “Samsung A14” mobile phone (criminal case registered in the ERDR under No. 255143031000006);
• there is no protocol of inspection of the “Samsung A14” mobile phone.

In addition, no audio-video recording filmed by the special device (“Атк Амулет”) (video camera) handed over to the citizen named “Vasya” was seized or examined, and no forensic habitoscopic, dactyloscopic or other examinations were appointed to establish B. M’s identity as the person who committed the crime. Therefore, the question arises as to why the special device “Атк Амулет” was handed over to the citizen named “Vasya”. Furthermore, 20,000 tenge was handed over to the citizen named “Vasya” for the purchase of the mobile phone, but in the protocol of seizure the citizen named “Vasya” stated that he had purchased the mobile phone for 33,000 tenge; moreover, the citizen named “Vasya” returned 5,000 tenge. How could the citizen named “Vasya” purchase a mobile phone worth 33,000 tenge and return 5,000 tenge when he had only 20,000 tenge? There can be only one answer to this question – the citizen named “Vasya” was a dependent person whose rights were being restricted by the investigative authorities, and the investigative authority, taking advantage of the fact that the citizen named “Vasya” was dependent on the investigative authorities, attempted to provoke B. M into committing a crime through the citizen named “Vasya”. Pursuant to Article 112 of the CPC, such actions are recognized as unlawful.

Furthermore, during the main trial, the Maktaaral District Court of Turkestan Region did not interrogate the citizen named “Vasya”.

Thus, it is obvious that any person could have inserted the file named “d-lm-rat-bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” into the memory of the “Samsung A14” mobile phone.

Furthermore, the criminal case materials contain Expert Opinion No. 721 dated 07.04.2025 issued in Russian (Заключение эксперта №721 от 07.04.2025 г.). Particular attention must be paid to it. Since, in the resolution appointing the examination, the investigator asked the questions “Were the Samsung Galaxy S10, Samsung Galaxy A14, Samsung Galaxy A72, Samsung Galaxy A53 mobile phones connected to a FUJITSU laptop?” and “Were any files downloaded from the FUJITSU laptop onto the Samsung Galaxy S10, Samsung Galaxy A14, Samsung Galaxy A72, Samsung Galaxy A53 mobile phones?” (in brief), the Expert Opinion No. 721 dated 07.04.2025 issued in Russian did not provide specific answers to these questions (Заключение эксперта №721 от 07.04.2025 г.). Pursuant to subparagraph 2) of part 5 of Article 79 of the CPC, “the expert shall conduct a comprehensive, complete and objective examination of the objects submitted to him/her, and shall provide a reasoned and objective written opinion on the questions posed.” Thus, the Expert Opinion No. 721 dated 07.04.2025 issued in Russian (Заключение эксперта №721 от 07.04.2025 г.) is subject to interpretation in favor of B. M pursuant to Article 19 of the CPC.

Furthermore, according to the criminal case materials, an audio recording named “d-lm-rat- bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” was found in the memory of the mobile phones seized during the investigation. However, an audio recording named “Д лм рат бу Мухаммад - Бидагатка ерушилерди калай жек көремиз.mp3” was found in the memory of the “FIJUTSU” brand laptop seized during the investigation. In this regard, the question arises as to what relation the audio recording named “d-lm-rat- bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” stored on the mobile phones in Latin script has to the audio recording named “Д лм рат бу Мухаммад - Бидагатка ерушилерди калай жек көремиз.mp3” stored on the “FIJUTSU” brand laptop in Cyrillic script. This is one issue. Second, during the investigation, no comparative analysis was conducted between the audio recording named “d-lm-rat- bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” and the audio recording named “Д лм рат бу Мухаммад - Бидагатка ерушилерди калай жек көремиз.mp3”; the correspondence of their texts, the length of the recording and the similarity of the voices were not established. Thus, the accusation that B. M distributed the audio recordings through the “FIJUTSU” brand laptop is completely disproved.

Pursuant to Article 112 of the CPC:

“1. Actual data, if obtained in violation of the requirements of this Code, shall be recognized as inadmissible as evidence if they have affected or may have affected the reliability of the actual data obtained by depriving or restricting participants in the proceedings of the rights guaranteed by law during the pre-trial investigation or consideration of the case in court, or by violating other rules of criminal proceedings, including:

2) through the use of the person’s misconception arising as a result of failure to explain, incomplete or incorrect explanation to a person participating in criminal proceedings of his or her rights and duties;

5) through a material violation of the procedure for conducting a procedural action;

6) from an unknown source or from a source that cannot be established at the court hearing;

1. through the use, during proof, of methods contrary to modern scientific knowledge, shall not be permitted to be used as evidence.
2. Actual data obtained in violation of criminal procedure law shall be recognized as data inadmissible as evidence and may not form the basis of the accusation, nor may they be used in proving any of the circumstances specified in Article 113 of this Code.”

Thus, since the criminal case materials contain no statement of the above-mentioned citizen named “Vasya”, no protocols concerning procedural actions involving the citizen named “Vasya”, and no resolutions on the adoption of procedural decisions, the pre-trial proceedings in criminal case No. 255143031000006 registered in the ERDR should be declared completely unlawful.

Accordingly, the resolution appointing the examination dated 14.01.2025, Expert Opinion No. 7 (comprehensive) dated 07.02.2025, and the resolution dated 03.03.2025 on consolidation of criminal cases Nos. 255143031000006 and 255143031000056 registered in the ERDR shall also be declared unlawful, and they may not be included as evidence confirming B. M’s guilt in the criminal case.

Pursuant to the requirement of subparagraph 6) of part 1 of Article 112 of the CPC, Expert Opinion No. 98 dated 01.11.2024 and Expert Opinion No. 61 dated 21.04.2025 are subject to being declared unlawful, since the objects submitted to the expert for examination were obtained from an unknown source or from a source that cannot be established at the court hearing. Furthermore, pursuant to the requirement of part 3 of Article 116 of the CPC, the expert’s opinion is not binding upon the body conducting the criminal proceedings.

In this regard, B E M should be acquitted of the charge under the second episode, namely, that on 10 January 2025 at approximately 12:50, for the purpose of inciting religious discord, repeatedly, at the “SMARTTEL” mobile phone repair center located at the central market on Ibrayev Street in Atakent settlement, Maktaaral District, while promoting the “Salafism” movement of the negative direction of Islam adhered to by him, he offered mobile phones displayed for sale to customers who came to purchase a mobile phone and, when a customer stated that he intended to purchase a mobile phone, distributed sermons of “Dilmutrat Abu-Muhammad” and “Nazratullah Abu-Maryam” prohibited by law by downloading them onto the mobile phone being sold through his “Fijutsu” brand laptop.

Pursuant to part 3 of Article 393 of the CPC, a conviction may not be based on assumptions and may be rendered only where the guilt of the defendant in committing a criminal offense is confirmed by the totality of the evidence examined by the court during the trial.

How the files named “d-lm-rat- bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” were found on the mobile phones by the investigative authority, by what method and using what device the files named “d-lm-rat- bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” were copied from the mobile phones to the discs, why the investigator did not interrogate the citizens named “A” and “Vasya”, and if the defendants did not admit the charges brought against them, why did the public prosecutor not summon the citizens named “A” and “Vasya” to the main trial, and why was the audio-video recording filmed by the special device “Атк Амулет” (video camera) handed over to the citizen named “Vasya” not examined at the court hearing? These issues raise doubts concerning the legality of the evidence obtained by the investigative authority.

The investigative authority did not submit to the court irrefutable evidence proving that B E M repeatedly downloaded files named “d-lm-rat- bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” from his “Fujitsu” brand laptop onto mobile phones for the purpose of inciting religious discord.

Pursuant to paragraph 6 of Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan dated 20 April 2018 “On the Judgment” (hereinafter – the RR):

“If the court indisputably establishes that a criminal offense has been committed, that the defendant committed this criminal offense, that he is guilty of committing it, and that his guilt has been confirmed by evidence collected in compliance with the requirements of the law, a conviction shall be rendered... Only if the court, guided by the presumption of innocence, directly examines all evidence and resolves all unresolved doubts in favor of the defendant within the framework of the appropriate legal procedure, while answering all questions provided for by Article 390 of the CPC, shall the person’s guilt of committing a criminal offense be considered proven.”

Pursuant to the requirement of paragraph 16 of the RR:

“Furthermore, the reasoning part of the judgment shall state the testimony of the victim and witnesses, the testimony placed for safekeeping and examined at the court hearing, the protocols of procedural actions and the contents of the case materials. When referring to the protocols of procedural actions and other materials, the volumes and pages of the criminal case must be indicated.”

The text of the judgment of the Maktaaral District Court of Turkestan Region contains no reference to a document establishing that the file named “d-lm-rat- bu-muhammad-bida-ft-a-erush-lerd-flay-zhek-r-rem-z.mp3” was identified in relation to the two episodes.

Article 433 of the CPC provides:

“Grounds for quashing or amending a judgment

The following:

1. one-sidedness or incompleteness of the judicial investigation;
2. inconsistency of the conclusions stated by the court in the judgment or resolution with the actual circumstances of the case;
3. material violation of criminal procedure law;
4. incorrect application of criminal law;
5. failure of the punishment to correspond to the gravity of the criminal offense and the personality of the convicted person shall constitute grounds for quashing or amending the judgment of the court of first instance.”

The judgment of the Maktaaral District Court of Turkestan Region in respect of B. M is subject to being quashed on the grounds provided for in subparagraphs 1), 2), 3) and 4) of Article 433 of the CPC.

It is also necessary to note the following circumstance. Paragraph 4 of Regulatory Resolution No. 11 of the Supreme Court of the Republic of Kazakhstan dated 25 December 2006 “On Qualification of Repeated Commission and Concurrence of Criminal Offenses” provides:

“It is necessary to distinguish repeated commission of criminal offenses from continuing criminal offenses. The commission by a person, with a single intent and a common united purpose, of two or more criminal acts that are similar in terms of the method and object of committing the criminal offense, characterized by material elements and uniformity of the consequences caused, does not constitute repeated commission of a criminal offense. In such cases, all acts committed should be recognized as a continuing criminal offense as a whole and qualified under one article or part of an article of the CC providing for liability for the commission of this criminal offense.”

However, despite the fact that the Maktaaral District Court of Turkestan Region charged B. M with committing two crimes similar in terms of the method and object of committing the criminal offense, characterized by a single intent and a common united purpose, material elements and uniformity of the consequences caused, the court found B. M guilty under part 2 of Article 174 of the CC, i.e. the court unlawfully qualified B. M’s actions as “repeated”.

Pursuant to part 2 of Article 19 of the CPC, “No one is obliged to prove his or her innocence.”

Based on the above grounds, we ask the judicial panel:

• to quash the judgment of the Maktaaral District Court of Turkestan Region dated 30 December 2025 in respect of B E M and render an acquittal judgment on the grounds provided for in subparagraph 2) of part 1 of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan, due to the absence of elements of a criminal offense in B E M’s acts;
• pursuant to Chapter 4 of the CPC, to grant B E M the right to compensation for harm caused by unlawful actions of the body conducting the criminal proceedings and restoration of his rights.

On 24 February 2026, the judicial panel for criminal cases of the Turkestan Regional Court, composed of: presiding judge – Chairperson of the panel R. Khasenov, judges A. Irzhanov and T. Ongarbayev, with the participation of prosecutors D. Tolebergen and A. Bekmurzayeva, convicted person B. M, defense counsel E. M, attorneys G. Sarzhanov and S. Nigmetov, in an open court hearing examined the criminal case received on the appeals of defense counsel E. M and attorney G. Sarzhanov against the judgment of the Maktaaral District Court dated 30 December 2025 in respect of B E M, according to which:

B E M, born on 23 June 1991 in Turkestan Region, citizen of the Republic of Kazakhstan, previously not convicted, was found guilty under part 2 of Article 174 of the Criminal Code of the Republic of Kazakhstan (hereinafter – CC) and sentenced to 6 years of imprisonment.

B E M was ordered to serve the sentence in a medium-security institution of the penal enforcement system. Pursuant to subparagraph 2) of part 3 of Article 62 of the CC, the period of B E M’s detention in custody from 28 February 2025 until the judgment entered into legal force was credited towards the term of sentence at the rate of one day for one and a half days of serving the sentence of imprisonment.

The measure of restraint in the form of “detention in custody” imposed on B E M was left unchanged, and the term of serving the sentence was calculated from 28 February 2025.

Procedural costs in the amount of 753,834.02 tenge and 2 tiyn incurred for the examination conducted by the expert institution were recovered from B E M and Esen Kanatbekovich A jointly, in the general procedure, to state revenue.

A mandatory payment in the amount of 78,640 tenge, equivalent to twenty monthly calculation indicators, was recovered from B E M to the Victims Compensation Fund.

By the same judgment, Esen Kanatbekovich A was found guilty under part 1 of Article 174 of the CC and was sentenced under this article to 4 years of restriction of liberty.

The issue of physical evidence was resolved in accordance with the requirements of Article 118 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC).

By the judgment of the court, B E M was found guilty of repeatedly uploading and distributing sermons prohibited by law to his mobile phone for the purpose of inciting religious discord.

Defense counsel E. M and attorney G. Sarzhanov, disagreeing with the judgment of the court, filed appeals.

Guided by subparagraph 1) of part 1 of Article 431, Articles 443, 444 and 486 of the CPC, the judicial panel

HEREBY RESOLVED:

The judgment of the Maktaaral District Court dated 30 December 2025 in respect of B E M shall be amended.

B E M’s criminal act shall be reclassified from part 2 of Article 174 of the CC to part 1 of Article 174 of the CC. B E M shall be found guilty of committing the criminal offense provided for by part 1 of Article 174 of the CC and shall be sentenced to 4 (four) years of imprisonment.

The following part shall be removed from the descriptive part of the judgment:

“Continuing his criminal intent, on 10 January 2025 at approximately 12:50, for the purpose of inciting religious discord, repeatedly, at the ‘SMARTTEL’ mobile phone repair center located at the central market on Ibrayev Street in Atakent settlement, Maktaaral District, while promoting the ‘Salafism’ movement of the negative direction of Islam adhered to by him, he offered mobile phones displayed for sale to customers who came to purchase a mobile phone and, when the customer stated that he intended to purchase a mobile phone, distributed sermons of ‘Dilmutrat Abu-Muhammad’ and ‘Nazratullah Abu-Maryam’ prohibited by law by downloading them onto the mobile phone being sold through his ‘Fijutsu’ brand laptop.”

The following part shall be removed from the reasoning part of the judgment:

“the defendant B.M repeatedly uploaded and distributed sermons prohibited by law to his mobile phone for the purpose of inciting religious discord.”

The remainder of the judgment shall remain unchanged.

Standardize names, initials, and aliases 

 

 

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