№ -7-/34328
September 20, 2022
Regarding Vadim Samyko's communication to the United Nations Human Rights Committee № 3180/2018
Guided by a Joint Order, the Interdepartmental Working Group, having considered the message V.Samyko No. 3180/2018, reports the following.
А. The composition of the offense
By the verdict of the specialized inter-district Criminal Court of Almaty dated February 25, 2011, with the participation of jurors, V.Samyko convicted under the Article 179 P.2 (brigandage), Article 96 P.2 (murder), Article 324 P.2 (theft or damage of documents, stamps, seals), Article 187 P.2 (theft, fraud, misappropriation or embezzlement of other property), Article 181 P.3 (extortion), Article 58 P.4 (Imposition of punishment on a set of criminal infractions) of the Criminal Code of the Republic of Kazakhstan and sentenced to 18 years of imprisonment with confiscation of property personally belonging to him, with serving his sentence in a strict-regime correctional colony.
By the verdict of the jurors, V.Samyko was brought to criminal responsibility for committing a robbery and the subsequent murder of the victim A.S, kidnapping and destruction of official documents, intentional destruction of someone else's property by arson and extortion on a large scale.
V.Samyko did not admit guilt in the incriminated crimes in court. The guilty verdict is based on the testimony of the convicted A.O, the victim S.Z, witnesses K.Y, R.U, Z.I, and the results of operational search activities and other case materials.
The victim, S.Z. confirmed to the court that on August 12, 2010, she contacted the police about the disappearance of her son, A.S. On August 22, 2010, an unknown caller contacted her nephew, R.U., and demanded a ransom in the amount of 6,000 US Dollars for the freedom of A.S. Police officers showed her a photo of an unknown corpse in which she identified her son.
The witness, K.Y, during the pre-trial investigation testified that on August 3, 2010 V.Samyko and A.O. tied up the victim ,A.S, after beating him in her apartment.. It was V. Samyko who suggested A.O. the murder of the victim. V.Samyko and A.O. took the victim's cell phones for themselves, a subwoofer and a car radio were stolen from a car. According to the convicts, she learned that they had burned the victim's car. The details of the telephone conversations between K.Y. and A.S. objectively confirm K.Y.'s testimony regarding the fact that she, at the request of V.Samyko, called the victim and invited him to her home.
The above-mentioned testimony is also confirmed by the testimony of the convicted A.O., according to which the latter confirmed that together with V.Samyko he committed a robbery and murder of the victim A.S. A.O. confirmed his testimony and demonstrated it when checking and clarifying the testimony at the crime scene. In addition, during the investigative action, precisely according to the testimony of A.O., the property of the victim A.S. was found and seized in the apartment at the place of residence of K.Y.
Having examined the presented evidence, the court found them admissible, relevant and in aggregate sufficient to find V.Samyko guilty of committing the incriminated acts.
By the decision of the Cassation Judicial Board of the Almaty City Court of June 2, 2011, the verdict against V.Samyko was left unchanged.
On February 16, 2012, by the decision of the Cassation Judicial Board of the Almaty City Court, the petition of lawyer A.A. to initiate proceedings in view of the newly discovered circumstances in the criminal case against V.Samyko was satisfied. The materials of the criminal case were sent to the prosecutor for the investigation of the newly discovered circumstances set out in the lawyer's petition.
On April 1, 2013, the conclusion of the Almaty Prosecutor's Office denied the lawyer's request to initiate proceedings on newly discovered circumstances.
On April 29, 2013, the cassation Judicial Board of the Almaty City Court, initiated by the resolution of February 16, 2012, proceedings in view of the newly discovered circumstances in the criminal case against V.Samyko were terminated, the lawyer's petitions were denied.
The arguments of the defender that the victim A.S. is alive and was seen on the territory of Almaty were not confirmed on the following grounds.
During the investigation of the criminal case, B. (the mother of the deceased victim) was questioned. From the testimony of the latter, it follows that A.S. could not drive the “BMW 530” car license plate No.A935AOO from August to September 2010, because he changed this car back in June 2010 to a “BMW 325” car license plate No.B420NUN. The information that her son is allegedly alive is considered absurd and staged by the defense side in the interests of convict V.Samyko.
The criminal prosecution body B. presented a video of the documentary "Bambos Company", after viewing she explained that the depicted guy of European appearance looks like her son. She claims that her son died, while confirming the fact of identification of the corpse and the conclusion of a medical and forensic examination of the skull.
By the resolution of the Supervisory Judicial Board for Criminal Cases of the Supreme Court of July 1, 2013, it was refused to initiate supervisory proceedings in the interests of convicted V.Samyko.
В. The author's arguments about an unfair trial
The author's arguments about the violation of his rights to a fair trial are unacceptable in accordance with the requirements of Article 14 of the International Covenant on Civil and Political Rights. According to this norm, the right to a fair trial is recognized, i.e. this right provides the author with a fair and public hearing of the case by a competent, independent and impartial court established on the basis of law.
Justice in Kazakhstan is carried out only by the court. Judicial power belongs only to the courts represented by permanent judges. No other bodies and persons have the right to appropriate the powers of a judge or the functions of the judiciary.
The principle of independence of the court is reflected in national legislation, in particular in the Constitution of the Republic of Kazakhstan and procedural codes. In addition, a number of articles of the Code of Judicial Ethics are aimed at the impartiality of the court when considering cases and in relations with parties and other persons.
In response to the author's arguments about the non-representation of V.Samyko's lawyer, we note that during the pre-trial and judicial proceedings V.Samyko was provided with a professional defender, with whose participation all investigative actions were carried out. The arguments of the appeal about the illegal conviction and violations of the norms of the criminal procedure law were checked and refuted by the courts of higher instances.
The arguments that the court did not notify either the defender or the convicted person about the date and time of consideration of the comments on the minutes of the court session are untenable. It should be noted that according to Article 349 (consideration of comments on the protocol of the main trial) of the Code of Criminal Procedure of the Republic of Kazakhstan, comments on the protocol of the main trial, made on paper, are considered by the presiding judge, who has the right to call the persons who submitted them for clarification. That is, calling process participants is optional.
Regarding V.Samyko's arguments about the court's failure to take into account his statements about the use of torture against him during the judicial investigation, it is noted that on September 2, 2010, when the court considered the investigator's petition for the election of a preventive measure in the form of arrest, neither the accused nor the defense party declared the use of torture and other mental and physical actions against V.Samyko violence by law enforcement officers.
In addition, on December 9, 2010, V.Samyko filed a statement with the Department of Internal Affairs of Almaty about the use of torture by law enforcement officers against him. As a result, a criminal case was initiated under Article 308 (abuse of power or official authority) of the Criminal Code of the Republic of Kazakhstan, and on December 21, 2010, a procedural decision was made to refuse to initiate criminal proceedings No. 2751103242762 due to the absence of elements of a crime in their actions.
Thus, by virtue of Article 128 of the Code of Criminal Procedure of the Republic of Kazakhstan, the court recognized all the evidence presented as relevant, permissible and, in aggregate, sufficient to find V.Samyko guilty of committing the incriminated acts.
To date, by the Law of December 27, 2021 "On Amendments and additions to some legislative acts of the Republic of Kazakhstan on the implementation of a three-tier model with the separation of powers and areas of responsibility between law enforcement agencies, the Prosecutor's Office and the court" from July 1, 2022, the judge's right to single-handedly consider the petition and the right of the Chairman of the Supreme Court to make a submission abolished.
The previous procedure, when the judge alone decided to transfer the case to the cassation instance, was criticized by the public, lawyers and international experts.
This was regarded as an encroachment on the independence of the court. Therefore, in this part, appropriate amendments were made to the Criminal Procedure Law.
Now the preliminary examination of the cassation petition will be carried out by three judges of the Supreme Court in open court with the invitation of the parties.
In this regard, the convicted person in compliance with the requirements of Article 488 (the procedure for filing a petition, protest for review of the sentence, court decisions that have entered into force) Code of the Criminal Procedure has the right to appeal to the Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan in cassation with a request for review of judicial acts.
С. The author's arguments about the exhaustion of legal remedies
According to the Code of the Criminal Procedure of the Republic of Kazakhstan, a criminal case may be requested from the relevant court for review in cassation by the Chairman of the Supreme Court of the Republic of Kazakhstan, judges of the Supreme Court of the Republic of Kazakhstan, as well as the Prosecutor General of the Republic of Kazakhstan or on his behalf by Deputy Prosecutor General of the Republic of Kazakhstan, regional prosecutors and equivalent prosecutors. Thus, it is noted that the author has not exhausted domestic remedies provided by national legislation.
It should be noted that according to the information of the Supreme Court, this criminal case was not the subject of consideration by the cassation instance.
To date, the convicted person and his defender, in accordance with the requirements of the Code of the Criminal Procedure, have not filed petitions with the Prosecutor General's Office for disagreement with judicial acts. Thus, the author has not exhausted all the procedures provided for by law.
Taking into account all the arguments given, V.Samyko’s message, in accordance with Articles 2 and 5 of the Optional Protocol to the Covenant and in combination with the applicable practice of the UN Human Rights Committee, must be rejected, as it is unacceptable and unfounded.
In accordance with the rule 100 (1) of the Rules of Procedure of the UN Human Rights Committee, we propose to request that the said Committee consider this communication in the light of the information provided concerning both unacceptability and groundlessness, since V. Samyko has not exhausted the domestic remedies provided by the legislation of the Republic of Kazakhstan to date.
The Interdepartmental Working Group on consideration of requests and views of human rights treaty bodies whose competence has been recognized by the Republic of Kazakhstan