Preliminary court hearings in the case of the former minister of Health of Kazakhstan Yelzhan Birtanov and his deputy Olzhas Abishev ended with the court returning the criminal case to the Prosecutor General’s Office to eliminate violations of the Code of Criminal Procedure.
As ACCA has already reported, the trial of Birtanov and Abishev began on January 26 in the Sary-Arka District Court No.2 of the city of Nur-Sultan. Both ex-officials are suspected of abuse of power when adopting the non-working “Platform for Informatization and Interoperability of Health Information Systems”, developed by the Croatian company Ericsson Nikola Tesla.
At the second meeting of the preliminary hearings, the defendants, their lawyers and public defenders petitioned for the termination of the criminal case due to the absence of corpus delicti in it, as well as due to gross violations committed by the investigation and supervisory authorities.
“I really want this court to hear all the facts confirming the absence of elements and events of the crime, as well as the absence of any malicious intent and damage to the state, since for almost two years the public of our country has been misled about the crime allegedly committed by me and Olzhas Abishev. I declare again that there was no crime,” Birtanov said, addressing the court with petitions.
Meanwhile, during the court session, it became known that a pre-trial investigation is underway in Kazakhstan against the administration of the Croatian company Ericsson Nikola Tesla on suspicion of fraud. At the same time, the Prosecutor’s Office put this case into a separate proceeding. However, the defendant Birtanov didn’t agree with this.
“The first and most important violation is the division of the case and the separation of a separate case against Ericsson Nicola Tesla and employees of the Ministry of Health. I think it’s just a crime. What’s the deal? What employees of the ministry and for what violations is the Financial Monitoring Agency going to prosecute? For signing acts of commission members, for disrupting the launch of the Platform, and for some other actions? We don’t know. I think if you schedule a major trial, we might want to question the ENT and MoH staff. And what will they tell us? We cannot do this, because this case is different and has nothing to do with Abishev and Birtanov. This is absurd. I think this is a gross violation,” he said.
In turn, the brother of Yelzhan Birtanov, Yeszhan Birtanov, who today holds the post of Deputy Chairman of the National Bank of Kazakhstan, also spoke about this.
“It’s urgent to protect the economic and social interests of Kazakhstan, which are at risk due to unlawful investigative actions. It’s urgent to resolve the civil law conflict between the Ministry of Health and Ericsson company provoked by the investigation, as well as the diplomatic tension with the Republic of Croatia. Otherwise, our country will find itself at the epicenter of not only an international scandal, but also a defendant in an obviously losing international arbitration. This threatens with huge budgetary losses. According to current estimates, the costs of the Ministry of Health for the preparation and conduct of arbitration proceedings will be comparable to the amount of the dispute itself. The cost of arbitration can incur costs in excess of one million dollars. Ericsson CEO Ms. Kovacevic warned about this on September 9, 2021 in a letter to the President of Kazakhstan, Kassym-Jomart Tokayev,” Yeszhan Birtanov said.
Another defendant, Olzhas Abishev, emphasized in his speech that the investigating authorities had been accusing him and Yelzhan Birtanov of embezzlement of budget funds for a long time, and when they failed to prove this, the case was reclassified as abuse of power.
“If there was a person, there would be an article for him! Fourteen months they couldn’t prove the false accusation, and they decided to change the article. This is some kind of bestial attitude towards citizens who didn’t break the law,” Abishev said.
Defense lawyers also provided the court with a long list of various violations committed by the investigation and the Prosecutor’s Office and requested that the case be dismissed or that it be returned to the Prosecutor’s Office to eliminate the violations.
However, representatives of the Prosecutor’s Office didn’t agree with the petitions and asked the court to reject them.
However, Judge Ibragim Alkenov, presiding over the trial, having returned from the deliberation room, decided to refuse the motion to dismiss the criminal case against the accused, since “such a motion is subject to consideration only after the court has accepted the criminal case into its proceedings and during the main trial”.
As for violations, here the judge met half-way.
Having considered the petitions of the defenders in the preliminary hearing, the court came to the conclusion that it is necessary to return the criminal case to the prosecutor in order to eliminate significant violations of the Code of Criminal Procedure. The pre-trial investigation body didn’t provide defense counsel with the opportunity to appeal against the decisions of the pre-trial investigation body on the basis of the submitted petitions based on the results of familiarization with the materials of the criminal case. According to the regulation, these violations are significant and cannot be eliminated in court. The court found that the violations of the law committed by the pre-trial investigation body prevent the appointment of the main trial in the case,” Alkenov stated.
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