A court that did not have a criminal intention to intentionally kill a victim, without taking into account the answers of witnesses, without giving them an adequate assessment, sentenced the circumstances of the crime based only on the answers of the convicted person.

By the verdict of the Specialized Interdistrict court for criminal cases of Almaty dated September 18, 2013: K., previously sentenced on January 24, 2012 to 3 years of restriction of freedom by paragraphs "A, B" of Part 2 of Article 178 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) ; - the act is again differentiated from paragraph "I" of Part 2 of Article 96 of the Criminal Code to Part 3 of Article 103 of the criminal code, sentenced to 9 years in this article, 6 years in prison under Part 3 of Article 257 of the Criminal Code, 9 years in prison under Part 3 of Article 58 of the criminal code by transferring a lighter sentence to a more severe punishment, sentenced to a final sentence of 9 years and 6 months in prison under Part 1 of Article 60 of the criminal code. Serving the sentence in the general regime of the correctional colony is established. In the act of K., in accordance with Paragraph "B" of Part 2 of Article 13 of the Criminal Code, a recidivism of a crime is recognized. In this case, K. and ZH. convicted, but the case against them is not considered. By the decision of the Appellate Judicial Board of the Almaty city court on criminal cases dated November 11, 2013, the complaint of the victim M.'s comrade N. was left without consideration, since he was not a participant in the process. By the decision of the Judicial Board of Cassation for criminal cases of the Almaty city court dated December 09, 2013, the sentence was unchanged, and the protest of the prosecutor of Almaty was dismissed. In his protest, the prosecutor general of the Republic of Kazakhstan indicated that the conclusions of the court expressed in the verdict do not correspond to the actual circumstances of the case, that it is illegal to re-qualify his actions to Part 3 of Article 103 of the criminal code, that the punishment imposed does not correspond to the severity of the crime and the personality of the convicted person, and asked to cancel the court verdict against K. and the decision of the judicial collegium of Cassation and send the criminal case for a new judicial review.

A court that did not have a criminal intention to intentionally kill a victim, without taking into account the answers of witnesses, without giving them an adequate assessment, sentenced the circumstances of the crime based only on the answers of the convicted person.

Hearing the opinions of the prosecutor, the representative of the victim N., who supported the protest, the lawyer S. on leaving the judicial acts unchanged, studying the case materials, the supervisory judicial board considers these judicial acts to be subject to revision and violation. As it turned out from the case materials, K. and his acquaintances zh., K., N. and a relative brother K. on May 7, 2013, at 02.00 am, came to Cafe "A", located at the intersection of Rozybakiev and Kabanbay batyr streets in Almaty, drank alcohol, and at 03.30 am, zh. and K. went outside the cafe and went to their unfamiliar M. At this moment, T., J. and N. took out a knife from their pocket, saw it, T., J. and N. got scared and backed away, at this moment K., who left the cafe, came to their souls and hit J. twice on the side, K. ran up on the side of the road in front of Cafe "a" while fighting with his friend J., M., and knocked M. to the ground, without stopping with him, K. it was found that M. inflicted blows to the right chest and left shoulder with a knife in his hand, repeatedly beat him in the face and body using the fact that he was lying on the ground, strangers called an ambulance from where M. was bleeding along the street, at 04 hours 30 minutes the biological death of the victim was recorded in the hospital. The court of first instance came to the erroneous conclusion that K. did not have a criminal intention to intentionally kill the victim, he would have realized his thoughts during the fight if he had a goal to kill M. As indicated in the protest, this conclusion of the court described in the verdict does not at all correspond to the real circumstances of the case. As it turned out in the preliminary and judicial investigation, K., for insignificant reasons, committed the scandal initiated by J. with hooligan intentions, beat M. in groups and knocked him to the ground, after which, despite the fact that the victim did not actively resist, K. continued his hooligan intentions and severely beat M. in the chest with a knife in his hand.  As a result, forensic medical examination showed that the most important organ of the victim's health - the diaphragm of the right part of the liver-was damaged, and the hepatic artery was completely cut off, the depth of the wound channel was 12 cm. was. Therefore, it is established that K. was hit with a knife with great force, after this injury M. could not make any active movements, but K., Despite this, continued his criminal activity with stab wounds to the head and shoulders of the victim, his actions were stopped by K., who ran from the cafe.   It is noted that the arguments of the prosecutor in the protest that the indicated injuries prove that K. did not limit himself to a deep stab wound to the chest of the victim M., and then continued to inflict intentional blows with a knife in his hand are supported by the evidence in the case. Because K.'s actions against the law were carried out by K., who was with him in a cafe, forcibly pulled from the body of the convict with both hands, and then picked up the latter from the crime scene.  K., who answered as a defendant, confirmed the circumstances of the case, said that during the fight, M. came to the right side and stabbed him.  he pointed to the side of the cafe.

This answer was confirmed by The Witness K., who, as soon as he heard about the fight, ran out of the cafe into the street and said that K. and J. were hitting a guy in the form of an Asian, whom he did not know before, at a distance of 15-20 meters, K. saw a knife in his hand, picked it up and took it away from the scene.  According to N.'s response, when he and K. ran out of Cafe "A", K., K. and J. said that a previously unfamiliar guy, about 24-28 years old, was knocked to the ground and beaten.  At that moment, the beaten guy had blood on his head, and K.'s right hand was 7-9 cm long, which opened and closed. he pointed to the knife. According to the answers of witnesses, after the fight, K. stabbed the victim in the abdomen with a knife.  The conclusions in the protest that the victim from the wounds inflicted by K. with a knife in his hand stopped K. and N. from the criminal activity of M., who further beat him, despite the fact that he was unable to make any active movements, are legally subject to verification in court. The court, without taking into account the answers given by these witnesses, without giving them an adequate assessment, based the circumstances of the crime only on the answers of the convicted K., made a verdict. Therefore, on the basis of the above, the supervisory Judicial Board sent the case to the said court for consideration in a new composition. 

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