A criminal lawyer in Almaty, in determining the content of the perpetrator's intent in cases of crimes against the person, the court must proceed not only from the explanations of the accused, but also from the totality of all the circumstances of the crime committed.

By the verdict of the specialized interdistrict Criminal Court of the Karaganda region dated April 05, 2010, K. was sentenced under Part 1 of Article 96 of the Criminal Code to 13 years in prison to serve his sentence in a high-security penal colony. By the verdict of the court, K. was found guilty of murdering the victim S. because of the hostile relations that arose during the drinking of alcoholic beverages and a quarrel. By the decision of the Appellate Judicial Board for Criminal Cases of the Karaganda Regional Court dated May 25, 2010, the verdict of the court remained unchanged. By the decision of the Cassation judicial Board of the Karaganda Regional Court dated April 09, 2013, the verdict of the court and the decision of the appellate board against K. were changed: the actions of convicted K. were reclassified from Part 1 of Article 96 of the Criminal Code to Part 3 of Article 103 of the Criminal Code, with a sentence of 9 years imprisonment to be served in a correctional colony of general regime. In the petition, the victim S. Requests to cancel the decision of the cassation judicial board and leave unchanged the verdict of the court and the decision of the appellate judicial board, arguing that when stabbing a vital organ and leaving the victim in a closed apartment without assistance, convicted K. acted with the aim of murder, and the cassation instance incorrectly applied the law and unreasonably reduced the punishment.

After examining the materials of the criminal case and the arguments of the victim's petition, the supervisory judicial board of the Supreme Court concluded that the law had been applied incorrectly against K., which led to an incorrect qualification of his actions and a discrepancy between the severity of the crime and the personality of the convicted person. In this case, it was established that on June 26, 2009, at about 22 o'clock, while drinking alcoholic beverages in S.'s apartment, a quarrel arose between K. and S., during which K. He took a kitchen knife from the table and stabbed it into a vital organ - the victim's stomach. S. died at the scene of the crime as a result of his bodily injury. According to the conclusion of the forensic medical examination, S.'s death occurred from a penetrating stab wound to the abdomen with damage to the mesentery of the large intestine and a branch of the superior mesenteric vein, complicated by acute anemia of the internal organs. The Court of cassation, having agreed with the established factual circumstances of the case, at the same time recognized the conclusions of the court of first instance and the court of appeal on K.'s finding guilty of murdering the victim S. out of personal hostility as unfounded. In deciding to reclassify K.'s actions from Part 1 of Article 96 of the Criminal Code to Part 3 of Article 103 of the Criminal Code, the court of cassation pointed out that the arguments of the convicted K. about the absence of intent to murder had not been refuted, and that K.'s single stabbing in the abdomen of S., which resulted in the death of the victim, and the subsequent departure from the apartment were not evidence of K.'s intent . to deprive S. of his life, and confirm the intent to cause serious harm to health and negligent guilt in relation to the consequences that have occurred – the death of the victim.

The stated conclusions of the court of cassation contradict the provisions of Articles 20, 21, 22 of the Criminal Code on forms of guilt and are based on an erroneous interpretation of the explanations of the Supreme Court in the regulatory decision. In accordance with paragraph 30 of the normative resolution of the Supreme Court of the Republic of Kazakhstan No. 1 dated May 11, 2007, with subsequent amendments, "On the qualification of certain crimes against human life and health", it is necessary to distinguish unlawful intentional infliction of death on a person from other intentional crimes involving serious harm to health, resulting in death by negligence, to determine the intent of the perpetrator, his subjective attitude to the results of their actions - the death of the victim. When determining the subjective side of a crime and the form of guilt, it is necessary to proceed from the totality of all the circumstances of the crime committed, take into account, in particular, the nature of the relationship between the perpetrator and the victim, the method of commission and the instrument of the crime, the number, nature and localization of wounds and bodily injuries, the reason for the termination of illegal actions by the subject of the crime, etc., as well as his behavior before and after the commission of a crime. In this case, when discussing the question of whether a person intended to take a person's life, the court of cassation, contrary to the requirements of the law, did not proceed from the totality of all the circumstances, did not take into account the behavior of the perpetrator, the weapon used and the nature and localization of the bodily injuries inflicted on the victim. As can be seen from the case file, K. stabbed in the abdomen with damage to the mesentery of the large intestine and a branch of the superior mesenteric vein, complicated by acute anemia of the internal organs, that is, in the places where vital organs are located.

To strike, convict K. used a knife with a length of 22.4 cm and a knife blade with a length of 12.5 cm. The damage was penetrating, classified as serious, life-threatening at the time of infliction. The depth of the wound canal is 10 cm. These circumstances, which are of great importance for resolving the issue of the direction of the perpetrator's intent, were not assessed by the court of cassation and the decision does not contain convincing evidence as to why it did not take them into account. Meanwhile, stabbing a vital organ, the force of the blow, the instrument of committing a crime, which, obviously for the perpetrator, may lead to the death of the victim, and indeed caused his death at the scene, by the nature of the actions indicates the presence of intent to take life, as well as the fact that the perpetrator was aware of the inevitability of the victim's death. that is, the intent to commit murder, and not to cause grievous bodily harm. The motives given in the decision of the court of cassation instance that "the behavior of the convicted person, who, after stabbing the victim in the stomach, saw that he fell on his back to the floor, threw the knife and went into his house, indicate the presence of intent to cause serious harm to health and negligent guilt in relation to the consequences - to the death of the victim" cannot be considered justified.  In making such an assessment, the court of cassation ignored the specific circumstances of the case, characterizing the subjective attitude of convicted K. to the deed. In the current situation, the actions of the perpetrator, who, after stabbing the victim in the stomach, left the victim in a closed apartment without attempting to rescue or assist him, and moreover, informed his relatives about the murder of a man, confirm that his consciousness encompassed the onset of the victim's death. In such circumstances, the conclusion of the court of cassation that K.'s intent It is aimed at causing grievous bodily harm, and not at depriving life, is erroneous, and therefore the decision taken by the court of cassation instance is subject to cancellation, leaving the verdict of the court and the decision of the appellate instance unchanged. The Supervisory Judicial Board of the Supreme Court overturned the decision of the cassation judicial board of the Karaganda Regional Court in respect of convicted K.. The verdict of the specialized interdistrict criminal court of the Karaganda region, the decision of the appellate judicial board for criminal cases of the Karaganda Regional Court remained unchanged. 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases