Attempted murder, as well as in preparation for murder committed for hire, by a group of persons by prior agreement and repeatedly

By the verdict of the specialized Interdistrict Criminal Court of Astana dated August 19, 2014: B., who had no previous criminal record, was sentenced under part 3 of Article 24, under paragraphs "w, h, h" of part 2 of Article 96 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 11 years in prison, under part 1 of Article 24, under paragraphs "w, z, n" of part 2 of Article 96 of the Criminal Code to 10 years in prison. On the basis of parts 1, 4 of Article 58 of the Criminal Code, 11 years and 6 months of imprisonment were finally imposed on the totality of crimes, while serving the sentence in a high-security penal colony. K., who had no previous criminal record, was sentenced under part 3 of Article 24, under paragraphs "w, z, n" of part 2 of Article 96 of the Criminal Code to 10 years and 6 months in prison, under part 1 of Article 24, under paragraphs "w, z, n" of part 2 of Article 96 of the Criminal Code to 10 years in prison.. On the basis of parts 1, 4 of Article 58 of the Criminal Code, 11 years of imprisonment with serving the sentence in a high-security penal colony were finally imposed on the aggregate of crimes. The same verdict convicted H., in respect of which the verdict is not disputed. By the verdict of the court, B. and K. were found guilty of the attempted murder of Ts. and I., as well as in preparation for the murder of T., committed for hire, by a group of persons by prior agreement and repeatedly. By the decision of the Appellate Judicial Board for Criminal Cases of the Astana City Court dated November 19, 2014, the verdict against B. and K. remained unchanged. By the resolution of the Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan dated February 19, 2014, acts X. according to the episode of the attempted murder of Ts. They were reclassified under part 3 of Article 24, under paragraphs "w, z, n" of part 2 of Article 96 of the Criminal Code to part 1 of Article 24, under paragraphs "w, z, n" of part 2 of Article 96 of the Criminal Code, with a reduced sentence. In the protest, the Prosecutor General, without disputing the evidence of the convicts' guilt, believes that the judicial acts against B. and K. on the episodes of attempted murder of victims Ts. and I. are subject to change due to the incorrect qualification of their actions, which entails a reduction in their sentence and the abolition of the application of Article 58 of the Criminal Code in sentencing.

Attempted murder, as well as in preparation for murder committed for hire, by a group of persons by prior agreement and repeatedly

The guilt of the convicted B. and K. in the commission of the crimes they are charged with is confirmed by the totality of the evidence examined by the court, given in detail and analyzed in the indictment. At the same time, the actions of convicts B. and K. in terms of attempts to cause the death of victims C. and I. were qualified by the court under part 3 of Article 24, under paragraphs "w, z, n" of part 2 of Article 96 of the Criminal Code as attempted murder by a group of persons by prior agreement, for hire, repeatedly. However, the court, having correctly established the actual circumstances of the commission of a criminal offense, allowed the incorrect application of the rules of the Special Part in the legal assessment of the actions of convicts B. and K. upon the fact of preparing for the unlawful intentional infliction of death on victims of Ts. and I. According to part 3 of Article 24 of the Criminal Code, an attempt on a crime is recognized as actions (inaction) committed with direct intent, directly aimed at the commission of a crime, if the crime was not completed due to circumstances beyond the control of the person. An action directly aimed at committing a crime should be understood as the beginning or continuation of the objective side of the intended crime. However, no such circumstances have been established in this case. Thus, it follows from the case file that E., who was hired by B. and K. for a monetary reward as the perpetrator of the murder of victims Ts. and I., was not going to participate in the crime, but, on the contrary, stopped it by his actions and exposed the perpetrators, informing victim Ts about the planned murder. and to the law enforcement agencies, which decided to stage the murder. Further actions by E. They did not go beyond the imitation of the murders of Ts. and I. As a result of the staging of the murders of Ts. and I., the crime by the convicts B. and K. was not completed due to circumstances beyond their control. According to part 1 of Article 24 of the Criminal Code, preparation for a crime is recognized as the search for, manufacture or adaptation of means or instruments of a crime committed with direct intent, the search for accomplices in a crime, conspiracy to commit a crime or other deliberate creation of conditions for the commission of a crime, if the crime was not completed due to circumstances beyond the control of the person. In such circumstances, the actions of convicts B. and K. in the search for the perpetrator of the crime, they do not constitute an attempt on a crime, but are covered by preparation for a crime, since in this case there is He did not carry out and did not intend to carry out the objective side of the composition of premeditated murder. Consequently, the actions of B. and K. in the episodes of attempted premeditated murder of Ts. and I. are subject to reclassification from part 3 of Article 24, under paragraphs "w, z, n" of part 2 of Article 96 of the Criminal Code to part 1 of Article 24, under paragraphs "w, z, n" of part 2 of Article 96 of the Criminal Code, with the appointment of penalties subject to the rules of part 2 of Article 56 of the Criminal Code. As for the episode of preparation for the murder of the victim T., the actions of the convicts were correctly qualified by the court. According to paragraph 3 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 11 "On the qualification of repeated and cumulative criminal offenses", if repeated occurrence is indicated as a qualifying feature in the criminal law norm, then the commission by the same person of several identical criminal offenses is subject to qualification in general according to the relevant article (parts of the article) The Criminal Code, which provides for liability for the repeated commission of this criminal offense.

Attempted murder, as well as in preparation for murder committed for hire, by a group of persons by prior agreement and repeatedly

In this regard, the actions of convicts B. and K. should be definitively qualified only under part 1 of Article 24, under paragraphs "w, h, h" of part 2 of Article 96 of the Criminal Code. The application of the rules of Article 58 of the Criminal Code is subject to cancellation. In accordance with paragraph 3) of part 5 of Article 46 of the Criminal Code, men who are first sentenced to imprisonment for committing particularly serious crimes are assigned to serve their imprisonment in institutions of the maximum security penal system. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts and the actions of B. and K. According to the episodes concerning the victims, Ts. and I. were reclassified to part 3 of Article 24, according to paragraphs "w, h, h" of part 2 of Article 96 of the Criminal Code and on the basis of part 2 of Article 56 of the Criminal Code, each was sentenced to 10 years in prison. The application of parts 1, 4 of Article 58 of the Criminal Code was abolished and it was decided to consider B. and K. convicted under part 1 of Article 24, under paragraphs "w, z, n" of part 2 of Article 96 of the Criminal Code finally to 10 years in prison, with their detention in an institution of the maximum security penal system. In the rest of the sentence and the resolution are left unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied. 

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