Admissibility and reliability of evidence in criminal proceedings
By the verdict of the specialized interdistrict criminal court of the Akmola region dated May 12, 2016: B., who had no previous convictions, was acquitted under part 1 of Article 149 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) for the absence of elements of a criminal offense in his actions, and was sentenced under paragraph 3) of part 2 of Article 99 of the Criminal Code to 15 years in prison freedom while serving a sentence in a high-security penal colony. In accordance with paragraph 4) Compulsory treatment for alcoholism was prescribed in part 1 of Article 91, part 2 of Article 98 of the Criminal Code. Collected from B. the state receives the procedural costs in the amount of 378,763 tenge. By the verdict of the court, B. was found guilty of murder, that is, unlawfully intentionally causing the death of the victim P., committed against a person who was obviously helpless for the perpetrator. The verdict was upheld by the decision of the Judicial Board for Criminal Cases of the Akmola Regional Court dated June 15, 2016. In the petition, lawyer N. indicates that the actions of the convicted person were incorrectly qualified by the court. The convict obviously did not know about the possibility of finding the victim in a helpless state. The convict himself could not clearly tell how and under what circumstances he struck the victim. B.'s intent has also not been clarified. He believes that the victim was not in a helpless state. He requests that the judicial acts against B. be reviewed and that his advanced age, the presence of a number of chronic diseases and his positive characterization at the place of serving his sentence be taken into account when sentencing him. Based on the results of studying the materials of the criminal case and the arguments of the petition, the judicial board came to the following conclusion. Thus, the court motivates the victim's being in a helpless state by her old age and being intoxicated.
Admissibility and reliability of evidence in criminal proceedings
According to the clarifications of paragraph 7 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 1 "On the qualification of certain crimes against human life and health", the victim's helplessness at the time of causing death must be carefully checked and evaluated by the court. At the same time, it should be borne in mind that the elderly age of the victim, his being in a state of intoxication, does not in all cases indicate his helpless state, therefore, these circumstances are subject to assessment taking into account the specific circumstances of the case. In the descriptive part of the new indictment and the verdict of the court, it is stated that the convicted B. and the victim P. drank alcohol together. The victim offered the convict to have sexual intercourse. After that, B. took off his trousers, but as a result of alcohol intoxication and due to his age, he was unable to perform sexual intercourse. To which P. began to reproach the convict that he could not do anything, insulting him, hurting his male pride, humiliating his honor and dignity. B., unable to withstand the insults from the victim, deliberately stabbed three times in the chest area of the victim. This fact is confirmed by the protocol of examination of the corpse, which shows that the victim was lying with her dress raised, there was no underwear on the lower part of the body, as well as the testimony of witness B. that the victim's dress was pulled up and she covered her with a blanket. From B.'s testimony during the pre-trial proceedings of February 20, 2016, it follows that, at the suggestion of the victim, he and his daughter-in-law drank vodka together. Victim P. invited him to have sexual intercourse. However, due to his age and being intoxicated, it did not work out, to which the victim began to insult and hurt his male pride. He got angry. He doesn't remember how he took the knife. When he came to himself, he saw that the victim was lying in blood on the floor. In court, B. supported these statements. It follows from the testimony of the convicted person that the victim was in adequate verbal contact, could perform actions and was not in a helpless state. In addition, according to the testimony of the representative of victim Z., witnesses V., V., K., victim P. During her lifetime, she was very active, she ran the farm herself, milked cows, fed chickens, and weeded the garden. The victim was not ill, she was only worried about "varicose veins".
It follows from the conclusion of the forensic medical examination that the victim P. was moderately intoxicated. The totality of evidence indisputably testifying to the fact that the victim was in a helpless state at the time of the commission of the crime by the convicted person, which was covered by B.'s intent, has not been established. Qualifying the actions of B. Like the murder of victim P., who was obviously helpless for him, the court did not establish the subjective side of the crime, that is, it did not assess the behavior of the convicted person, did not find out whether he was aware of the victim's helplessness at the time of the murder. According to article 19 of the Criminal Procedure Code of the Republic of Kazakhstan, irremediable doubts about the guilt of the defendant are interpreted in his favor. A guilty verdict cannot be based on an assumption and must be supported by a sufficient body of acceptable and reliable evidence. Thus, the judicial board considers that the judicial acts against B. are subject to change, the qualifying feature provided for in paragraph 3) of part 2 of Article 99 of the Criminal Code - "murder of a person who is obviously helpless for the perpetrator", is subject to exclusion. The actions of convicted B. are subject to reclassification from paragraph 3) of part 2 of Article 99 of the Criminal Code to part 1 of Article 99 of the Criminal Code. Taking into account the reclassification of the convicted person's actions to a less serious crime, the term of punishment is also subject to reduction. B.'s actions They were reclassified from paragraph 3) of part 2 of Article 99 of the Criminal Code to part 1 of Article 99 of the Criminal Code, which imposed a sentence of 12 years in prison to be served in an institution of the maximum security penal system. The rest of the judicial acts remained unchanged. The lawyer's petition was partially satisfied.
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