The suspect has the right to complain about the actions and decisions of the inquirer, investigator, prosecutor and court, as well as to defend his rights and legitimate interests.

By the verdict of court No. 2 of the Zyryanovsky district of the East Kazakhstan region dated November 14, 2014: M., who had no previous criminal record, was sentenced under part 2 of Article 351 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) (as amended in 1997) to 1 year in prison. Based on Article 63 of the Criminal Code, suspended with a probation period of 1 year with the establishment of probation control for the entire period. By the Court of M. He was found guilty of contacting the Prosecutor's office of the East Kazakhstan region on July 24, 2013 with a false statement that unlawful methods of physical and psychological influence were used against him by police officers of the Serebryansky district in order to obtain confessions from him in stealing money from D. The verdict was not considered on appeal. In the protest, the Prosecutor General asks the court's verdict against M. to be annulled with the termination of the criminal case for lack of evidence of a criminal offense. Indicates that the verdict of the court is subject to cancellation in connection with the incorrect application of the criminal law, which led to the conviction of an innocent person. He motivates his arguments by the fact that M., having the status of a suspect, exercised his right to protection in the form of statements about his torture by police officers of the OP of Serebryansk (hereinafter referred to as police officers). According to paragraph 1) of part 1 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force, specified in part one of Article 484 of this Code, are violations of constitutional rights and freedoms of citizens committed during the investigation or judicial review of a case, or improper application of criminal and criminal procedure laws that led to the conviction of an innocent person. In the present case, there is such a basis for the annulment of the verdict. In accordance with paragraph 6 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On judicial verdict" (hereinafter referred to as the regulatory resolution), a guilty verdict is issued if the court has indisputably established that a crime has been committed, this crime was committed by the defendant, he is guilty of its commission, his guilt is confirmed by evidence collected in compliance with the requirements of the law. According to paragraph 18 of the said regulatory decree, due to the presumption of innocence and in accordance with article 19 of the CPC, a guilty verdict cannot be based on assumptions and must be supported by a sufficient body of reliable evidence. Contrary to the requirements of the law, the conviction against M. is based on assumptions and is not substantiated by any evidence.

The suspect has the right to complain about the actions and decisions of the inquirer, investigator, prosecutor and court, as well as to defend his rights and legitimate interests.

Thus, it follows from the materials of the criminal case that on July 20, 2013, M. was detained by police officers on suspicion of having stolen money from D. On July 24, 2013, M. applied to the Prosecutor's office of the East Kazakhstan region with a statement about the use of illegal methods of physical and psychological influence by police officers in order to obtain confessions from him stealing money from D. According to the results of the investigation, the fact of torture against M. It was not confirmed by the police officers, and therefore, on July 27, 2013, the Zyryanovsky district prosecutor's office issued a decision on the refusal to initiate criminal proceedings due to the lack of corpus delicti in the actions of police officers provided for in part 4 of Article 308, part 1 of Article 141-1 of the Criminal Code (as amended in 1997). On October 23, 2013, the Prosecutor General's Office cancelled the above-mentioned resolution of July 27, 2013 and opened a criminal case against police officers under paragraph "a" of part 2 of Article 141-1 of the Criminal Code, which was terminated by a resolution of April 21, 2014 due to the absence of a crime event. In this regard, a criminal case was subsequently opened against M. for deliberately false denunciation. However, on January 16, 2014, the Zyryanovsky district court No. 2 opened a criminal case against M. in the commission of a criminal offense provided for in part 1 of Article 175 of the Criminal Code, proceedings were terminated on the basis of Article 67 of the Criminal Code for reconciliation of the parties. The mere fact that the criminal case was terminated upon M.'s statement about the use of illegal investigative methods against him cannot serve as a basis for finding him guilty of false denunciation. In addition, M.'s statement, filed during the pre-trial investigation about the use of illegal investigative methods against him, cannot be recognized as a deliberately false denunciation due to the fact that, in accordance with article 64 of the CPC, having the status of a suspect, he was entitled to put forward arguments and give evidence in order to ensure his defense, as well as to refuse to give evidence. to give evidence, to complain about the actions and decisions of the investigator, the inquirer, the prosecutor and the court, to defend their rights and legitimate interests in other ways that do not contradict the law. Thus, he used the statement against the police officers as a way of his defense.

However, the pre-trial investigation body in this criminal case, in violation of the above requirements, on November 29, 2013, unreasonably took away from M. a statement warning him of criminal liability for false denunciation under part 2 of Article 351 of the Criminal Code (as amended in 1997). M.'s exercise of his right to protection in the form of statements about the torture inflicted on him was an illegal basis for bringing him to criminal responsibility. According to article 13 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by resolution 39/46 of the UN General Assembly on December 10, 1984, each State Party ensures to any person who claims that he has been subjected to torture in any territory under the jurisdiction of this State the right to bring charges. complaints to the competent authorities of that State and for their prompt and impartial consideration of such a complaint. Measures are being taken to ensure that the plaintiff and witnesses are protected from any form of ill-treatment or intimidation in connection with his complaint or any witness testimony. In accordance with part 3 of Article 31 of the CPC, it is not allowed to file a complaint to the detriment of the person who filed the complaint or in whose interests it was filed. In such circumstances, M.'s actions lack the elements of a crime provided for in part 2 of Article 351 of the Criminal Code (as amended in 1997), therefore, the conviction is subject to cancellation with the termination of the proceedings on the basis of paragraph 2) of part 1 of Article 35 of the CPC.

According to the requirement of part 1 of Article 37 of the CPC, a person acquitted by a court, as well as a suspect, accused, or defendant, against whom a court or criminal prosecution authority has issued a decision to terminate a criminal case on the grounds provided for in paragraphs 1), 2), 5), 6), 7) and 8) the first part of article 35 They are subject to rehabilitation, that is, restoration of their rights, and may not be subject to any restrictions on the rights and freedoms guaranteed by the Constitution of the Republic of Kazakhstan. In accordance with part 1 of Article 39 of the CPC, having made a decision on the full or partial rehabilitation of a person, the body conducting the criminal process must recognize his right to compensation for harm. Based on the above, the judicial Board for Criminal Cases of the Supreme Court overturned the verdict of the court of first instance against M. and terminated the proceedings under part 2 of Article 351 of the Criminal Code on the basis of paragraph 2) of part 1 of Article 35 of the CPC for the absence of elements of a criminal offense in his actions. In accordance with the procedure provided for in Chapter 4 of the CPC, it was recognized for M. the right to rehabilitation and compensation for damage caused by illegal actions of bodies conducting criminal proceedings. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied. 

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