Attempted premeditated murder, that is, as an unlawful intentional infliction of death on another person, not completed due to circumstances beyond the control of the person, is based on contradictory and unacceptable factual data, does not comply with the constitutional principle of presumption of innocence.

By the verdict of the specialized inter-district Criminal Court of Astana dated August 19, 2016, K., who had no previous criminal record, was sentenced under part 1 of Article 107 of the Criminal Code to 1 year of restriction of liberty with the establishment of probation control. By a court verdict, K. was found guilty of intentionally causing moderate harm to the health of victim J. By a decision of the Appellate Judicial Board for Criminal Cases of the Astana City Court dated October 4, 2016, the court's verdict against K. was overturned, and a new sentence was passed. By the appeal verdict of K. He was found guilty under part 3 of Article 24, part 1 of Article 99 of the Criminal Code, and was sentenced to 8 years in prison, to be served in a high-security penal colony. The conclusions of the court of appeal on the qualification of K.'s actions under Part 3 of Article 24, part 1 of Article 99 of the Criminal Code as attempted premeditated murder, that is, unlawful intentional infliction of death on another person, not completed due to circumstances beyond the control of the person, are based on contradictory and unacceptable factual data and do not comply with the constitutional principle of presumption of innocence. Paragraph 4 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 1 dated May 11, 2007 "On the qualification of certain crimes against human life and health" states that attempted murder should be recognized as intentional acts in which the perpetrator was aware of their social nature, acted with the aim of unlawfully causing death to the victim, foresaw its occurrence and desired However, due to circumstances beyond his control, death did not occur.

Attempted premeditated murder, that is, as an unlawful intentional infliction of death on another person, not completed due to circumstances beyond the control of the person, is based on contradictory and unacceptable factual data, does not comply with the constitutional principle of presumption of innocence.

At the same time, an attempted murder on the subjective side is characterized only by direct intent. If the crime was interrupted before its completion, then it is necessary to clarify why the perpetrator stopped his actions, whether it depended on his will, whether he had a real opportunity to continue committing the crime, what circumstances prevented the onset of socially dangerous consequences. So, according to the materials of the criminal case, including the testimony of the convicted K., with the victim Zh. He was on friendly terms, and the conflict between them occurred because of the money that P. owed him earlier. Subsequently, P. explained that he had transferred the debt to J., and the money should have been taken from him. Therefore, K. came to the victim's house. In the apartment between him and the victim Zh. There was an argument that turned into a fight. During the fight, K. stabbed the victim, who was wearing outerwear, with a small penknife only 3-4 cm long. At the same time, he did not aim to kill him. He struck randomly and did not think that this knife could kill a person. During the fight, J. He ran out of the apartment, and he immediately closed the door behind him. When J. I started knocking to get back in, but he wouldn't let him in. Victim Zh. testified that with K. He had previously known and was on friendly terms. On January 17, 2016, at about 5 p.m., the last one arrived at his house, they smoked "weed" (marijuana) together, then he took a laptop and started playing a computer game. When he was sitting on the couch, K., having turned up the volume on the TV, suddenly attacked him from behind, using obscene words against him. At the same time, he saw K. in his hands. the knife, which he brandished, struck him several times in the chest, left shoulder and back of the head. J. began to resist, defend himself, trying to pull the knife out of his hands, grabbed the blade and cut his fingers. When he asked about the reason for his aggression, K. replied that he was aware of this reason.

Next, K. I held him on the balcony for a while. But he pushed K. away and managed to leave the apartment. When he wanted to go back in, K. did not open the door. After that, he went to the Lampochka store located in their house, where an ambulance was called for him. According to the conclusion of the forensic medical examination, the victim has Zh. There were multiple non-penetrating stab wounds to the occipital region, the tragus of the left auricle, a through stab wound to the lower lip, incomplete dislocation of 3.2 teeth, non-penetrating stab wounds to the chest, left upper limb, which were formed from exposure to an object with piercing and cutting properties and which qualify as minor harm to health. Incised wounds of the palmar surface of the right hand with damage to the flexor tendons of 3, 4, 5 fingers, formed from exposure to an object with cutting properties, are classified as harm to health of moderate severity. The examined evidence suggests that K.'s intent to cause the death of J. not proven. The latter's injuries are non-penetrating stab wounds and, according to their severity, are classified as minor injury to health, while incised wounds to the palm of the right hand are classified as moderate injury. Blows to the vital organs of the victim K. they were not applied. About K.'s lack of intention to deprive J. This is also evidenced by the fact that after the latter left the apartment, he locked himself in from the inside, closing the door with a latch, although he had the opportunity to catch up with J. and kill. K. did not respond to the latter's demands to open the door and call an ambulance. These circumstances were confirmed by K. and Zh. in the main court proceedings. At the same time, K. He testified that if he had had an intention to kill Zh., he would have let him back into the apartment in order to commit the murder, but he was not motivated by such an intention. The case materials established that the weapon of the crime, the knife with which K. had stabbed the victim, had not been seized. It follows from K.'s testimony that at the time of the conflict he used a small pocket knife, the blade of which was no more than 3-4 cm long. The conclusions of the court of appeal on the parameters of the knife with a blade length of 10-11 cm are taken from the testimony of Zh., given by him during the pre-trial proceedings in the case. However, in the main trial, Zh. testified that the knife was small and collapsible. This is also confirmed by the testimony of witnesses M. and P. In the court of cassation, J. In his petition, he stated that K. had no intention of killing him. He believes that if K. had wanted to kill him, he could have done so with such an intention. Therefore, he asked to cancel the judicial acts of the appellate instance, not to deprive K. freedom. In accordance with paragraph 30 of the above-mentioned regulatory decree of the Supreme Court of the Republic of Kazakhstan "On the qualification of certain crimes against human life and health", it is necessary to distinguish the 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 his actions – death of the victim. Determining the subjective side of the crime and the form of guilt, it is necessary to proceed from the totality of all the circumstances of the crime committed, taking 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 other 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 after committing a crime.

Thus, the available evidence in the case established that K. prior to the incident, he was on friendly terms with Zh. and at the time of his commission of the crime, the latter's life was not in real danger, he did not want him dead. These circumstances prove that K. had no intention of causing Zh's death. But the chaotic stabbing of the latter's body, which did not result in penetrating wounds, indicates his intent to harm the health of J. In this regard, the conclusions of the Court of appeal on K.'s intent. to commit the murder of J. they are untenable. The Court of first instance, on the basis of the evidence gathered, reliably established that K. intentionally caused moderate harm to the health of J. and reasonably came to the conclusion that he was guilty of committing a criminal offense under part 1 of Article 107 of the Criminal Code. The Judicial Board also concluded that the Law of the Republic of Kazakhstan "On Amnesty in connection with the twenty-fifth anniversary of Independence of the Republic of Kazakhstan" dated December 13, 2016, should be applied to K.. Paragraph 1 of article 2 of the above-mentioned law provides for the release from punishment of a person convicted of minor crimes. According to article 11 of the Criminal Code of K. convicted of a minor crime. The Judicial Board for Criminal Cases of the Supreme Court overturned the decision of the Appellate Judicial Board for Criminal Cases of the Astana City Court and the appeal verdict of the same court against K. and changed the verdict of the specialized inter-district Criminal Court of Astana, which sentenced him to 1 year of restriction of freedom under part 1 of Article 107 of the Criminal Code. Applied to K. paragraph 1 of Article 2 of the Law of the Republic of Kazakhstan "On amnesty in connection with the twenty-fifth anniversary of Independence of the Republic of Kazakhstan" and he was released from punishment. The lawyer's petition has been granted. 

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