Independent defense in court

Let us be your personal guide in traveling through the corners of Kazakhstan's judicial system.

If you were detained at a peaceful meeting, you are likely to get to know the law enforcement and judicial systems in the near future.
Under the circumstances, it is in your personal interest to fight in any way not contrary to the law, try to win or minimize potential damage and, of course, as a result, get an unforgettable and extremely useful experience.

An additional and perhaps most important result of your judicial adventure (provided that you go through all the stages of legal protection and public attention) will be a slow, gradual but crucial change in law enforcement practices that will never happen without your participation.

Since there are always few lawyers and defenders, and there are a lot of those who need help, we have prepared for you a detailed instruction on self-defense in the administrative process.

If you have concerns that as a result of your participation in a peaceful assembly you may be detained and start an administrative process, remember: everything that is written from your words in the police report and everything that you say in court may be used against you.

Think about what and how you say, and say only what will help you, not the system!

Detention

Detention is a measure of securing the proceedings of an administrative case, is registered on delivery to the police station, can not exceed 3 hours (if the offence charged to you as a sanction does not also provide for arrest).

If you are detained, a protocol must be drawn up.

Remember:

You must hand in a copy of the record (which must show the exact time (within one minute) of the actual detention).

Read the protocol carefully, make your comments, if any, and only then sign it.

If you do not agree with the content of the protocol, you have the right to refuse to sign it.

IMPORTANT!

The actual detention should be considered the moment when you were stopped by a police officer or a person in plain clothes and lost the opportunity to move freely.


The period of detention should not exceed 24 hours if the offence falls into the category of cases involving administrative detention. The general rule, however, is no more than 3 hours.

Place and time of the trial

You are required by law to be notified of the time and place of a case or an individual proceeding and to be summoned by notice(s) to a court or authority.

Do not forget that the time and place of consideration of a case may also be specified in the protocol on administrative offence.

A notification is sent:

1
By registered letter with the notice of its delivery
2
By telephonogram or telegram
3

Text message to the subscriber number of cellular communication

4
By e-mail
5
With the use of other means of communication that ensure the recording of a notice or call

Pay special attention to the following points:

1
The person, in respect of which the proceedings on the case about an administrative offence are carried out, confirms with his signature acquaintance with the fact that the indicated by him address of residence (location), place of work, subscriber number of cellular communication, e-mail address are authentic, and the notice (notice), directed to the indicated contacts, will be considered as appropriate and sufficient.
2
The person in respect of whom the case is initiated, as well as other participants of the case shall be provided with a coupon of consent to receive a notice of appearance in court through a text message to the cellular communication subscriber number, the expenses for which shall be paid at their expense.
3

A detachable part of the coupon shall be handed over together with a copy of the protocol on administrative offence.

4
If the addressee refuses to accept a notice (notice), the person delivering or delivering it shall make a corresponding mark on the notice (notice) which is returned to the court, the body (to the official).
5
The refusal of the addressee to accept the notice (notice) shall not be an obstacle to the examination of the case or performance of certain procedural actions.
Remember that a few days or a week may pass between the arrival of the case to the court and the appointment of the time of consideration. This time should not be wasted, but used to prepare for a trial.

Preparing for the trial

Preparing for a trial is the key to winning, and your level of training will decide whether you win or lose.

During your preparation, you should do the following:

1
Carefully examine all the documents that you received from the internal affairs authorities and note any errors or distortions in reality.
2
Prepare all motions (e.g., to call witnesses who can confirm your innocence, to bring in a specialist, to admit evidence, and other motions that may have a positive impact on the outcome of the case), and possibly file a number of motions before the trial (see chapter of the motion).
3

Prepare an explanation (your detailed account of what happened in court) in writing. Keep a close eye on the content: anything you say can be used against you.

4
Find witnesses to your detention (it is easier to do by using the potential of social networks).
5
Find pictures or (even better) video of your detention (also using the potential of social networks).
6
Record the photo or video evidence found on a USB stick or disk (yes, laser disks are still used in ships)
7
Prepare questions for the witnesses and police officers who detained you and prepared the report. Answering these questions should be a good way to highlight the circumstances of your detention.
8
Prepare a list of all violations that have been committed by police officers at the time of arrest and in the police department.

General progress of the court hearing and your rights

Congratulations - you have overcome all obstacles and appeared in court at the hearing of your own case!

By current standards, you are already a hero. Now you need to understand what will happen in court.

The session begins with the judge announcing which case is being heard. Then the judge must identify you (you will need to have an ID card with you) and then explain your rights and responsibilities.

You can find out what rights you have during the trial by clicking on the link.

The judge can then ask questions about possible mitigating circumstances. If you have them (for example, you are a single mother with many children and a salary below the minimum subsistence level), do not hesitate to report them.
Remember that under no circumstances may administrative detention be imposed on pregnant women and women with children under the age of fourteen, persons under the age of eighteen, persons with disabilities in groups 1 and 2, and women over fifty-eight, men over sixty-three, and men raising children under the age of fourteen alone.

If you are in this category, you should report to the court and provide supporting documentation (such as a copy of your disability certificate).

IMPORTANT!
You have the legal right to use the services of a defender. To do this, you must submit an appropriate application.

Lawyers are involved as defenders. Along with lawyers allowed as defenders of the spouse, close relatives or legal representatives of the person brought to administrative responsibility.

We strongly recommend that you use only lawyers with a good reputation or who you know personally.

Do not agree to the services of attorneys who are provided with free public assistance.
Before proceeding to review the case file, the judge will ask if you want to file motions. It is at this stage, you can enter into the process of defense counsel or declare a petition for familiarization with the materials of the case, if you have not familiarized with them earlier. At this stage, you may call witnesses (primarily those already in the court building).

IMPORTANT: If you have witnesses, they must come with you to the court on the day of the session and be outside the hall door when the session starts. If a potential witness is already in the courtroom, the judge will deny him witness status. The witness should have an identity card with him or her, and you and your lawyer should know exactly the name of the witness according to his or her passport details.

Finally, the court will familiarize itself with the case files. The judge will usually be quick to announce the most important parts of the documents he has. After that, the judge will ask you if you admit your guilt.
In no case do not admit your guilt! Say "no, I won't admit it".

Start making motions

(this is a written request to the court to carry out any procedural actions) concerning the disclosed materials of the case, namely, a request to attach additional materials to the case. Remember that at any time you can ask the judge to review any materials in the case again.

After that, the judge will give you the opportunity to describe the circumstances of what happened. You tell your side of the story - loud and clear - and ask for a written explanation that is prepared in advance.
Then comes the stage of interviewing witnesses
You and your lawyers have the right to ask questions about the essence of the case. If you or your witness have photographs or videos of your detention, you may request that they be included in the case at this stage. You can ask for evidence if you have not been able to get it yourself.

At the next step, you and your lawyer have the right to express your opinion about what you have heard, and to pay attention to contradictions or inaccurate details about witnesses' accounts, as well as facts that show that you are innocent.
You can specifically draw the court's attention to the materials you have included. You have the right to express your opinion about the indictment and justify its inconsistency by referring to the case file, witness statements, and the documents attached.

At the end of your speech, ask for the termination of the case for the absence of an event of offense.

This concludes the consideration of the case, and the judge adjourned to issue a ruling. The break may be prolonged for a long time, and then the judge announces the ruling.

Once the order has been announced, the court must prepare a copy, which is given to the defender and the person involved. You should wait until you receive a copy of the court decision and sign it.

Petitions

You may need different motions at different stages of your court proceedings.

Remember the main thing: motions are filed not only to be accepted, but also to be rejected - this will be a serious argument on appeal. Remember also that in administrative cases, court records are not kept, and anything you say in your voice may be ignored - communicate with the court in writing.

You can file a petition through the courtroom online, you must have an EDS (electronic digital key): https://office.sud.kz
Here is a list of the most needed motions:
1

Request to familiarize yourself with the case file

2
Request for acquisition of case materials
3

Request for admission of evidence in the case file

4
Request to call witnesses
5
Petition for the admission of the defender

Appeal

The appeal is the awkward stage when you lose and the system gives you a second chance.
In fact, at the appeal stage, the game is just beginning. Your chances to win greatly increase, and you can not lose - you have already lost. Most likely, after the court of first instance, you will fall into apathy, but do not betray it too long: to continue the game, you have only 10 days from the date of receipt of the court of first instance.

If you are taken into custody, you will have to write an appeal while you are serving your sentence, because the arrest is made immediately.

Please note that compiling an appeal

is the most important stage, and the composition of the complaint depends on how your case was considered in the court of first instance. We recommend that you consult with specialists (lawyers, attorneys, human rights activists) before filing a complaint.
We recommend that you file a motion to call witnesses and police officers for questioning, as well as other motions needed in your case, along with your appeal.
Complaint against the court order is filed within 10 days in writing or electronically through the court that examined the case. The period of appeal is calculated from the moment you are served with a copy of the court order.

Complaint is filed in one copy. It is desirable to have a second copy to put on it in the office of the court a mark of acceptance (includes a stamp of the office of the court, the position and name of the person who received the complaint, and the time and date of acceptance of the complaint).

The appeal shall be filed with a higher court.
The full name of the applicant and his place of residence shall be indicated in the complaint header. It is possible to attach additional evidence to the complaint and specify the data of witnesses, who should be summoned to court and questioned.
What are you complaining about

When preparing an appeal it is necessary to rest on the groundlessness of bringing to responsibility or on violation of the law and procedural rules when drawing up the minutes of the case in the IAB and consideration of the case in court, or both at the same time. Any of these facts, if confirmed, will lead to your victory - the cancellation of the first instance court order.

Consideration of complaint

The appeal instance examines the case from scratch, as if there was no first examination at all. But they are interested only in existing or absent procedural and other violations in the consideration of the case.
The court not only considers all the materials of the case anew, but also is open for consideration of additional evidence and explanations, which earlier you could not provide due to objective reasons.
In addition, at this stage, witnesses can clarify their testimony. With the help of additional explanations and evidence, you can refute the conclusions of the district court about your guilt and can indicate that the previous judge did not eliminate the existing contradictions by interviewing witnesses.

The court of appeal makes one of the following decisions:

Leaving the decision without change, and the complaint, appeal application - without satisfaction

Resolution Amending

Cancellation of the resolution and termination of the case if there are circumstances provided for in Articles 741 and 742 of this Code, as well as if the circumstances on the basis of which the resolution was issued are not proven

Overturning the ruling and issuing a new ruling in the case

I missed the deadline to file an appeal

You can try to restore the deadline for filing an appeal - the law allows this. As a rule, it is easy to restore the deadline for filing an appeal by the courts of first instance, since the case is then considered by other courts of second instance. There must be a valid reason to restore the deadline, but the laws do not contain a precise list of such reasons. The main thing is for the judge to consider the reason to be valid. Most often, judges are guided by the fact that it is better to give citizens the right to appeal the decision than to deprive them of this right, so even if there is no valid reason, try to appeal against the terms.

Examples of justifiable reasons:

1
You were not notified about the date and time of the first instance court.
2

The court made the decision longer than the due date or it was not sent to you

3

Disease or helplessness

4

Booking

5

Different family circumstances

6

Natural disasters and other causes

You can attach a variety of documents to your application that would support the reason you missed the deadline. Appellate immediately to the office of the court of first instance or send it by registered mail. If the application is granted, the court will send a complaint to the court of second instance.


In the preparation of this instruction partially used materials from the website ovdinfo.org

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The web-site reflects information on human rights activities launched by PF Wings of Liberty in 2015, aimed at human rights education.

Use of ErkindikQanaty.kz materials - only with a link to the resource.
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