The investigating judge of the Sverdlovsk District Court, A. Zh. Tumonov, stopped considering the complaint of attorney A. Sydykov against termination of the investigation of the fact of deatИюл 02.2021
The human rights Movement "Bir Duino Kyrgyzstan" and attorney Aidar Sydykov continue to protect the rights and interests of Khadicha Askarova after the death of human rights defender A. Askarov on 25 July 2020 in Penal Colony No. 47.
Today, on 1 June 2021, the Sverdlovsk District Court of Bishkek considered the complaint of attorney A. Sydykov in defense of the interests of Khadicha Askarova on the recognition of the decision of the senior investigator of the Investigative Department of the State Penitentiary Service under the Ministry of Justice of the KR, senior lieutenant of the armed forces A. Moldazhiev on the termination of pre-trial proceedings registered in the Automated Information System Unified Register of Crimes and Misdemeanours (AIS ERPP) under No. 03-860-2020-000152 on the death of Azimzhan Askarov to be illegal and unfounded.
Participants of the court session:
A. Zh. Tumonov, investigative judge of the Sverdlovsk District Court of Bishkek;
A. K. Azhibayeva, Secretary of the court session;
S. Toktogulov, Senior Assistant Prosecutor for supervision of compliance with laws in bodies and institutions of the penal enforcement system;
A. Moldazhiev, senior lieutenant of the armed forces;
A. Zh. Sydykov, attorney.
Unfortunately, the investigating judge of the Sverdlovsk District Court of Bishkek, A. Zh. Tumonov, stopped the production of judicial material on the complaint of attorney A. Sydykov. The investigating judge justifies his decision by the fact that the complaint against the decision to terminate the pre-trial proceedings was filed after the expiration of the appeal period on 28 June 2021, and the decision to terminate the pre-trial proceedings on the fact of A. Askarov's death was received by the lawyers on 16 June 2021.
The HRM "Bir Duino Kyrgyzstan" states that on 16 June 2021, the attorneys of the HRM "Bir Duino Kyrgyzstan" and attorney Aidar Sadykov received a copy of the resolution on the termination of pre-trial proceedings, as well as 2 volumes of materials of pre-trial proceedings.
In accordance with part 2 of Article 250 of the Criminal Procedure Code, "the appeal period is 10 days from the date of receipt of the decision to terminate the criminal case". This is confirmed by the attorney's statement about familiarization and the date of photographing the case materials and was not denied by the court.
However, the calculation of the terms should be carried out according to the rules of Article 141 of the Criminal Procedure Code of the KR:
2) when calculating the term in days, the day on which the term begins is not taken into account, i.e. in our case, the term is calculated from 17 June.
4) if the end of the term falls on a non-working day, the last day of the term is considered to be the first working day following a weekend or a holiday, except in cases of calculating the term during detention, imprisonment, home detention and being in a medical institution.
In this case, the last day of filing a complaint fell on 26 June, Saturday, i.e. a non-working day. Therefore, the last day of filing an application is 28 June 2021. The complaint was filed on the last day, since the case materials in 2 volumes required an in-depth study by experts. We also hoped to get an expert opinion on the conclusion of a forensic medical examination.
By his decision, the investigating judge A. Zh. Tumonov exceeded his powers, having stopped the pre-trial proceedings.
Also, it is important to note that the judge began to consider the case on the merits and retired to the deliberation room to make a decision, while the timeframe had to be taken into account before the consideration of the case on the merits.
In accordance with Article 262, the procedure for considering complaints against actions and decisions of pre-trial officials: "At the beginning of the court session, the investigating judge announces which complaint is subject to consideration, explains the rights and obligations to the applicant. The applicant, if he participates in the court session, substantiates the complaint, after which other persons who appeared at the court session are heard. The failure of a duly notified applicant and an official to appear in court is not an obstacle to consideration of the complaint." "3. The complaint cannot be considered, the proceedings on it are terminated if the complaint is filed by a person who does not have the right to file a complaint; if the complaint is not subject to consideration in this court; if the complaint is submitted after the expiration of the appeal period provided for by this Code, and the person who filed it does not raise the question of resuming this period or the investigating judge, at the request of the person, does not find grounds for its restoration; the complaint was previously considered on similar grounds or arguments."
1. We intend to file a complaint with the disciplinary commission of judges against the actions of the judge;
2. Appeal the decision on termination in Bishkek City Court.
Should you have any questions, please, contact the HRM "Bir Duino Kyrgyzstan" by phone: 0312 317671, 0550184095, attorney Aidar Sydykov: 0556161038.