The legality of the sentence, without taking into account the significant violations of the law that occurred during the investigation of the criminal case, made the guilty verdict illegal
By the verdict of the Inder District Court of Atyrau region dated February 17, 2020: T. previously not convicted, sentenced to a fine of 50 monthly calculation indices – 126,250 tenge with deprivation of the right to drive a vehicle for 1 year by the first part of Article 345 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code). T. collected procedural costs in favor of the state in the amount of 25,417 tenge and a forced payment to the Victims ' Compensation Fund in the amount of five monthly calculation indices - 12,625 tenge. By the court verdict T. as a person driving a vehicle, he was found guilty of committing an act that resulted in a violation of the rules of road traffic, causing negligent damage to the health of victims of moderate severity. By the decision of the Judicial Board of the Atyrau regional court for criminal cases dated April 27, 2020, the verdict was left unchanged. In the submission of the chairman of the Supreme Court, the question is raised about the revision of judicial acts against T. convicted in connection with a significant violation of the norms of criminal and criminal criminal legislation. A significant violation of the Criminal Procedure Law in accordance with paragraph 3) of Article 494 and article 433 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code) is the basis for canceling the validity of the verdict of the court of First Instance and the appeal decision. Without taking into account the proven innocence of T. on the charges brought, judicial acts against him are subject to Cassation review on the basis of a significant violation of the norms of Criminal Procedure legislation during a pre-trial investigation of the case. T. a criminal offense provided for in the first part of Article 345 of the Criminal Code, recognized as guilty, is a criminal offense in accordance with the third part of Article 10 of this code. Pre-trial proceedings against T. were registered in the Unified Register of pre-trial investigations on August 8, 2019, and a number of forensic examinations were assigned to the case. In accordance with Article 5 of the CPC, criminal proceedings are carried out in accordance with the Criminal Procedure Law put into effect at the time of the performance of a procedural action, the adoption of a procedural decision.
The legality of the sentence, without taking into account the significant violations of the law that occurred during the investigation of the criminal case, made the guilty verdict illegal
In accordance with the requirements of the third part of Article 526 of the CPC, which was in force at the time of the occurrence of an event of a criminal offense recognized as guilty, the body of inquiry is obliged to draw up a protocol on a criminal offense within one day from the moment of receipt of the relevant opinion. But on the part of the pre-trial investigation body, this norm of the criminal code is seriously violated. In particular, judging by the data of the Institute of forensic expertise in Atyrau region (attached to the submission), the results of the judicial transport and tracological examination of the case dated August 29, 2019 No. 3045 were summed up by the senior inspector of the Makhambet District Police Department of Atyrau region-police captain M. despite the fact that it was signed directly from the said expert Center on September 12, 2019, false information was included in the case materials that this conclusion of the forensic examination was received by the said pre-trial investigation body only on October 8, 2019 under the incoming number 1358. Thus, this artificially extended the period of pre-trial investigation of the case of a criminal offense, violated the mandatory norms of the Criminal Procedure Law, and the protocol on a criminal offense against T. was drawn up only after 26 days from the date of actual receipt of the conclusion of the above-mentioned forensic examination. At the same time, in cases of such a category, if it is impossible to ensure a complete and comprehensive determination of the circumstances to be proved in the case within the time limits established by Article 526 of the CPC, in accordance with the requirements of part four of Article 189 of the CPC, the head of the body of inquiry had the right to appoint an inquiry within one day with notification of the prosecutor. However, despite the fact that the pre-trial investigation body is obliged to draw up a protocol on a criminal offense and send a case on a criminal offense to the court within one day from the moment of receiving the conclusion of a judicial transport and tracological examination in accordance with the requirements of part three of Article 526 of the Criminal Procedure Code, without assigning an inquiry form of investigation into the case, and the victim conducted a confrontation between U., witnesses I., R. and interrogated witnesses I., A., J. and D.. Consequently, in accordance with the first part of Article 50 of the CPC, all procedural actions committed by the pre-trial investigation body after the expiration of the term, including the protocol on a criminal offense drawn up after the expiration of the protocol form of the pre-trial investigation, must be declared invalid. In accordance with paragraph 5) of part one of Article 112 of the CPC, factual data must be recognized as inadmissible for use as evidence if they are obtained in violation of the requirements of this code, including in a significant violation of the procedure for conducting a procedural action.
In such a context of the case, procedural actions committed after the expiration of the protocol form of the investigation in the case of a criminal offense initiated in relation to T. with the first part of Article 345 of the Criminal Code are grounds for the cancellation of decisions made during the proceedings by the investigative body in accordance with the second part of Article 9 of the criminal code, or for the recognition of the materials collected in this context as having no evidential force or invalidating the proceedings in the case. In accordance with the requirements of part three of Article 10 of the CPC, violation of the law by the court, criminal prosecution bodies in criminal proceedings is not allowed and entails liability established by law, recognition of illegal acts as invalid and their cancellation. In such a situation, the court of first instance, without taking into account the above serious violations of the law, illegally issued a guilty verdict against T. At the same time, a significant violation of the norms of the Criminal Procedure Law was also ignored by the court of Appeal. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan canceled the judicial acts of local courts in relation to the convicted T. and terminated the criminal case. The proposal of the chairman of the Supreme Court of the Republic of Kazakhstan was satisfied.
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