The totality of reliable and acceptable evidence
By the verdict of the Arshaly District Court of the Akmola region dated May 8, 2019: A., who had no previous convictions, G., who had no previous convictions, were found innocent under paragraph 3) of part 2 of Article 191, paragraph 1) of part 2 of Article 120 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) and acquitted for lack of evidence of participation in the commission of criminal offenses. A. and G. were recognized as having the right to rehabilitation and compensation for material and moral damage caused by illegal actions of bodies conducting criminal proceedings. The procedural costs in the amount of 2,094,408.96 tenge were attributed to the state. The fate of the physical evidence is resolved in accordance with part 3 of Article 118 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC). By the verdict of the court, A. and G. were found innocent and acquitted due to the lack of evidence of their participation in the rape of victim K. by a group of persons by prior agreement, as well as the open theft of mobile phones totaling 20,000 tenge belonging to the victim. The verdict was upheld by the decision of the Judicial Board for Criminal Cases of the Akmola Regional Court dated June 26, 2019. In the protest, the Prosecutor General points out that the judicial acts are illegal, since the court's conclusions do not correspond to the actual circumstances of the case, and the judicial authorities have not properly assessed the testimony of the victim and prosecution witnesses. The verdict is based on contradictory statements by G. and A., which are refuted by the conclusion of the forensic molecular genetic examination, the testimony of the victim, and the conclusion of the forensic medical examination, according to which K. had injuries in the form of bruises of the upper extremities. Considers that the consistency and stability of the victim's testimony, their consistency with the expert's conclusion, and the nature of the injuries found do not raise any doubts, on the contrary, they prove the guilt of A. and G. in committing rape of the victim K.
The totality of reliable and acceptable evidence
Requests that the judicial acts against A. and G. be annulled. The criminal case should be sent for a new judicial review to the Court of appeal of the Akmola Regional Court. The conclusions of the judicial authorities about the absence of evidence of G. and A.'s guilt in the acts they are accused of are based on comprehensively, fully and objectively researched evidence, analyzed and compared with each other. All the evidence in the case under consideration, in accordance with article 125 of the CPC, was examined for its reliability, admissibility and relevance. So, G. and A. The charges were brought that, while intoxicated, they raped the victim K. against her will, by a group of persons by prior agreement, using violence and threatening to use it, and also committed open theft of mobile phones belonging to the victim, causing her material damage in the amount of 20,000 tenge. The charges are based on the testimony of the victim K.; the conclusion of the forensic medical examination No. 181 in relation to K., according to which the latter had injuries in the form of bruises of the upper extremities.; the conclusion of the forensic molecular genetic examination, according to which a DNA mixture was detected from a tampon with contents in the victim's vagina. The sperm fraction probably belongs to K., G. and an unknown man. However, the prosecution's arguments were not objectively confirmed at the hearing, since indisputable evidence of G. and A.'s guilt in committing these crimes was not provided to the court. An analysis of victim K.'s testimony showed that they were unstable and contradictory. So, during the initial interrogation on August 31, 2018, K. explained that A. and G. forcibly put her in the car, O. was in the front seat. Then they drove to the steppe, where A. forced her to drink vodka, and G. forcibly undressed her, after which A. raped her, while G. first held her hands, and then left. O. was in the front passenger seat at that time. Then they drank more vodka, she tried to call her mother, but A. took away her phones. During the additional interrogation on September 4, 2018, the victim K. testified that A. had forcibly put her in the car, O. was in the front passenger seat. Then they drove to the steppe, where A. forced her to drink vodka. Some time later, G. drove up there When she wanted to call her mother, A. took the Lenovo phone from her, G. began to undress her forcibly, during which a Samsung cell phone fell out of her pocket, which G. handed to A., after G. undressed her, he got out of the car, and A. raped her. At the hearing, the victim, K., explained that she had been forcibly put in the car of A. and O., forced to drink vodka, which made her drunk. Then G. drove up and he and A. raped her in turn. At the same time, during the confrontation with G. and A., the victim kept silent about the rape of her G.
At the hearing, the victim, K., explained that she had been forcibly put in the car of A. and O., forced to drink vodka, which made her drunk. Then G. drove up and he and A. raped her in turn. The instability and inconsistency of her testimony was explained by the victim's poor memory and alcohol intoxication at the time of the crimes against her. However, the victim's testimony is refuted by the testimony of the acquitted A. and G. that on August 30, 2018, they did not have sexual intercourse with K. and did not steal her cell phones. The testimony of the acquitted is confirmed by the testimony of witnesses K., O., V., N., A., I., B. and others. G., being questioned during the pre-trial investigation as a witness entitled to defense, explained that he had previously had sexual intercourse with K. about 3-4 times, the last time sexual intercourse with K. it was committed about a week ago. It follows from the conclusion of the forensic molecular genetic examination No. 4100 that the DNA mixture identified from the sperm fraction probably belongs to K., G. and an unknown man. Expert Zh. She explained to the court that male DNA in the vagina can be detected up to seven days after sexual intercourse, this period may vary depending on the individual characteristics of the woman. Thus, the conclusion of the above-mentioned examination and the expert's testimony confirm G.'s testimony that sexual intercourse with K. took place a few days before the alleged act, and refute the victim's testimony that she was raped by G. and A. on August 30, 2018. Regarding the conclusion of the forensic medical examination, which established the presence of bodily injuries to the victim, the courts came to the correct conclusion that the discovered injuries in the form of bruises of the upper extremities could have formed under other circumstances, such as the actions of her brother K., who, having seen her at 5:30 p.m. on August 30, 2018 in In A.'s car, intoxicated, he scolded her and forcibly dragged her out of the car, putting her in his car. These circumstances were confirmed at the hearing by witnesses K., A., O., explaining that the victim had not complained about anything, her mood was normal, and her clothes were in good condition. Meanwhile, the victim K. did not mention this fact either during the pre-trial investigation or at the court hearing, explaining this with a poor memory. According to the testimony of these witnesses, it was established that the victim K. At about 17 o'clock, she was already with A. and O. on the shore of Lake Shalkar, which allows us to refute the victim's testimony that she was forcibly put into a car at 20 o'clock and taken to the steppe. The testimony of K. The fact that A. hit her on the head several times when she resisted is not consistent with the conclusion of the forensic medical examination, which established the presence of bodily injuries to the victim in the form of bruises of the upper extremities. The prosecutor's arguments about the illegality of the acquittal of G. and A. according to paragraph 3) of part 2 of Article 191 of the Criminal Code, they cannot be taken into account, since during the court session in the debate the prosecutor refused to charge in this part, which, in accordance with paragraph 12 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 13 "On the practice of considering criminal cases on appeal" It is not included in the subject of the review and is not a reason for the cancellation or amendment of the verdict. Thus, the court evaluated and analyzed all the evidence examined in court, presented by the prosecution and the defense in their entirety in accordance with the requirements of Article 125 of the CPC, checked, compared them with each other, and evaluated each of them in terms of relevance, admissibility and reliability.
The totality of reliable and acceptable evidence
During the appeal hearing, the prosecution's arguments were checked for the legality and validity of the verdict, and no violations of the law were found. In accordance with paragraph 2 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On judicial verdict", courts should keep in mind that a verdict is lawful if it is issued by a lawful composition of the court in compliance with the rules of jurisdiction, in strict accordance with the requirements of the Criminal Procedure Law on the procedure of judicial proceedings based on the principle of competition and equality of the parties, ensuring their access to the examination of evidence on equal grounds, subject to the correct application of the rules of law. The validity of the verdict means that it is based on evidence that has been collected in compliance with the requirements of the law, and has been fully, objectively and comprehensively investigated directly at the court session, analyzed and properly evaluated, and the court's conclusions are motivated. The judicial authorities complied with these requirements of the law, and the verdict was based on evidence obtained in compliance with the norms of the criminal procedure law. Based on the above, the judicial Board for criminal Cases of the Supreme Court upheld the judicial acts of the local courts in respect of A. and G. The protest of the Prosecutor General of the Republic of Kazakhstan and the petition of the victim K. left without satisfaction.
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