The practice of changing the measure of restraint from detention to house arrest

Judge of the Specialized Interdistrict Investigative Court of Almaty Akynov Zh.B. with the participation of the prosecutor, the suspect Zh.E.. Her protector - lawyer Sarzhanov G., having considered at a court hearing through the VKS the petition of the investigator of the SB UP of the Bostandyk district of Almaty, agreed with the prosecutor of the Bostandyk district of Almaty, to authorize the use of a preventive measure in the form of detention for a period of 2 months in respect of ZHAE, born on June 26, 1990, a native of the East Kazakhstan region, a citizen of the Republic of Kazakhstan, Kazakh by nationality, with higher education, married, with three minor children, working as the director of LLP "" residing at the address: Almaty, mkr..., ul. , 19, previously convicted, suspected of committing a crime under Article 190, Part 3 of the Criminal Code of the Republic of Kazakhstan based on the materials of the pre-trial investigation. The criminal prosecution body suspects that, during the period from May 18 to November 29, 2021, while in Almaty, through deception and abuse of trust, under the pretext of selling medical supplies, she seized K.A.'s funds in the amount of 2,100,000 tenge, IP "Q." represented by a representative A.A. in the amount of 270,000 tenge, sole proprietor " ." represented by a representative of Zh.N. in the amount of 4,400,000 tenge. LLP "A." represented by A.R. in the amount of 4,900,000 tenge. This fact was registered in the ERDR of the UP of the Bostandyk district of Almaty for No..... 190, part 3, paragraph 4 of the Criminal Code. The remaining episodes are combined into one production. On 11/19/2021, at 5:30 p.m., the suspect, Zh.A.E., was detained in accordance with Article 131 of the CPC and placed in the IVS of the Almaty city police department (actually detained at 14.30 hours). The acts of the suspect Zh.A.E. are qualified under art. 190, part 3, paragraph 1.4 of the Criminal Code. 11/20/2021 Resolution of the investigator BE. on the application of a preventive measure in the form of detention agreed upon by the prosecutor and on the initiation of a petition before the court for the authorization of the said preventive measure. The investigating judge, having examined the materials provided from the criminal case, having listened to the opinions of persons participating in court sessions, without prejudging the question of the suspect's guilt, comes to the following conclusion. In accordance with Part 1 of art. 136 of the CPC RK, if there are sufficient grounds to believe that the suspect or accused will hide from the criminal prosecution authorities or the court, or obstruct the objective investigation of the case or its trial in court, or will continue to engage in criminal activity, and also to ensure the execution of the sentence, the body conducting the criminal process, within the limits of its powers, has the right to apply to these persons one of the preventive measures provided for in Article 137 of the Criminal Procedure Code of the Republic of Kazakhstan. In accordance with art . 138 Part 1 of the CPC, when deciding on the need to apply a preventive measure and which one, in addition to the grounds specified in Article 136 of the CPC, as well as the establishment of additional restrictions specified in Part 2, Article 137 of the CPC, the following must also be taken into account: the severity of the crime committed, the identity of the suspect, his age, state of health, marital status, in the family of dependents, the strength of social ties, the suspect's reputation, occupation, whether the suspect has a permanent place of work or study, property status, permanent residence, and others. Suspicion of J.A.E. the suspicion of committing a crime under the specified circumstances is justified. The court, without entering into the discussion of the issue of J.A.E.'s guilt and the assessment of evidence, found that there had been an event of a criminal offense, there were sufficient data indicating the presence of signs of a criminal offense, the likelihood of committing a crime J.A.E. J.A.E. is suspected of committing an intentional grave crime, for which the penalty is imprisonment for more than five years. In accordance with art . 147 Part 2 of the CPC, the person conducting the pre-trial investigation, in the decision to initiate a petition before the court for the sanction of detention, is obliged to substantiate the reasons for choosing this preventive measure and the impossibility of applying less stringent preventive measures. The investigator's decision indicates the severity of the suspicion, the possibility of hiding from the criminal prosecution authorities, obstructing the pre-trial investigation, and the possibility of continuing criminal activities as grounds for the use of detention.

 

In accordance with Article 138, Part 2 of the CPC, in the absence of the grounds provided for in Article 136 of the CPC, the gravity of the crime committed cannot be the only reason for choosing a preventive measure in the form of detention. There is no information in the submitted materials indicating that Zh.A.E. has absconded or may escape from the criminal prosecution authority, the court, obstruct the pre-trial investigation, or may continue criminal activities. In such circumstances, the severity of suspicion alone cannot be the only reason for applying the most severe preventive measure. The judge also took into account personal information, namely that Zh.A.E. has three dependent young children, has a permanent place of residence, has no previous criminal record, and has not been prosecuted. In this regard, there are no sufficient legal grounds for choosing the most severe preventive measure. At the same time, the judge, considering the severity and nature of the crime of which J.A.E. is suspected, namely causing multimillion-dollar damage, considers it inappropriate to set bail, and it is necessary to choose house arrest. In accordance with Article 146, Part 5 of the CPC, paragraph 3, Part 4.5 of the Rules for the Execution of a preventive measure in the form of house arrest, approved by the Joint Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated August 29, 2014 No. 564. Prosecutor General of the Republic of Kazakhstan dated September 2, 2014 No. 86, Chairman of the National Security Committee of the Republic of Kazakhstan dated September 4, 2014 No. 290, Minister of Finance of the Republic of Kazakhstan dated September 2, 2014 No. 394 and Chairman of the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption dated September 12, 2014 No. 4 place of detention The arrest is determined by the body conducting the criminal process. It can be a dwelling, a hospital, a clinic, a boarding house, other places and rented premises. It is allowed to provide the suspect, the accused, the defendant with housing by relatives and other persons during the criminal proceedings. When providing a suspect, accused, or defendant with housing by relatives and acquaintances, the body conducting the criminal process must have their written consent, as well as that of adults living with them. Based on the above, guided by Article 136. 138, 146, 147, 148, of the Criminal Procedure Code of the Republic of Kazakhstan, the investigating judge ruled: The petition of the investigator of the SB UP of the Bostandyk district of Almaty was granted. - refuse.To refuse to authorize a preventive measure in the form of detention in respect of Zh.A.E. To choose a preventive measure in the form of house arrest for a period of two months in respect of Zh.A.E.

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