By preliminary conspiracy of a group of people, he was repeatedly found guilty of an attack that was accompanied by a threat to the life and health of the victims with the use of dangerous force
By the verdict of the Specialized Interdistrict court for juvenile affairs of the city of Shymkent dated June 11, 2019: E. previously sentenced to restriction of freedom for 1 year by paragraphs 1), 2), 3) of the second part of Article 191 of the Criminal Code of the Republic of Kazakhstan dated April 18, 2018, – guilty by paragraphs 1), 2) of the second part of Article 192 of the criminal code, sentenced to deprivation of freedom for 5 years without confiscation of property. The decision of the Court of Kyzylorda City No. 2 of the Kyzylorda region on the early parole of E. from serving a sentence of restriction of freedom for 1 year has been canceled on November 27, 2018, which has been replaced by an indefinite term of 6 months and 23 days of imprisonment. In accordance with Article 60, part four of the Criminal Code, a sentence of 5 years and 2 months of imprisonment is established with the partial inclusion of punishments in the totality of sentences and serving the sentence in a medium-safe institution of the penitentiary system for the detention of minors. From the convicted legal representative of E. D., 4,081 tenge was collected for conducting a forensic examination in favor of the state and 48,100 tenge was collected for the Fund for compensation to victims. By the verdict of the court, E. was found guilty of an attack by a group of people, which was repeatedly accompanied by a threat to the life and health of the victims with the use of dangerous force.
By preliminary conspiracy of a group of people, he was repeatedly found guilty of an attack that was accompanied by a threat to the life and health of the victims with the use of dangerous force
In particular, in a preliminary conspiracy with convicted criminal accomplice E. zh., on October 23, 2018, from 07:30 to 08:30 in the morning, he met a minor A. near the garage, showed him a knife, beat him, threatened to "kill him with this knife", threatened to use violence dangerous to his health and life, attacked, openly seized a mobile phone "Samsung DUOS" worth 5 000 tenge and fled from the scene. Further E. and ZH. on October 23, 2018 at 12:00 on the second floor of the trading house "Shymkent Plaza" on October 23, 2018, a citizen named "Nursultan" repeatedly met a minor, E. showed him a knife, threatened "if you do not leave your mobile phone, the value will be one knife", threatened to use violence dangerous to health and life, attacked, openly seized the mobile phone" Iphone 5S " worth 130,000 tenge and left the scene he ran away. As well as E. and ZH. by conspiracy, on October 23, 2018, at 16:00 in a cafe, he met a minor D., showed him a knife, threatened "now the phone is ours", threatened to use violence dangerous to his health and life, attacked, openly seized a mobile phone worth 35,000 tenge "LG K8" and fled from the scene. By the decision of the Judicial Board of the Shymkent City Court for criminal cases dated August 2, 2019, the court verdict was left unchanged. Lawyer M. in the petition, without questioning the proof of guilt of the convicted E., the court verdict stated that his criminal actions were not properly qualified, he did not intend to commit robbery, took mobile phones from the victims by deception and threatened their life and health with the use of non-dangerous force, therefore, Article 191 of the criminal code, re-categorized in Paragraphs 1), 2), 3) of the second part of the Criminal Code, asked to impose a punishment that does not deprive him of freedom in connection with reconciliation of the convicted with the victims, compensation for material damage. Having thoroughly examined the evidence in the criminal case, the lawyer listened to the words of M., The legal representative of the convicted D. in support of the arguments specified in the petition, the opinion of the prosecutor S. that the judicial acts against the convicted E. were legitimate and justified, asked to leave them without their own, and the petition was dismissed, discussed the arguments of the petition and considered that the judicial acts against the convicted E. are subject to leave unchanged on the basis of the following circumstances. The guilt of the convicted E. in committing criminal offenses in the circumstances set out in the sentence, accumulated during the pre-trial investigation, thoroughly studied in the main trial, confirmed by objectively evaluated evidence that does not raise any doubts in terms of consistency and is not challenged by the lawyer who defended his interests. Judicial acts concerning the convicted E. adopted in accordance with the norms of criminal and criminal criminal legislation.
The judicial board considers that there is no reason to satisfy the petition of the lawyer M., who requested to re-qualify the actions of the convicted E. from paragraphs 1), 2) of the second part of Article 192 of the Criminal Code to paragraphs 1), 2), 3) of the second part of Article 191 of the criminal code. During the pre-trial investigation and the main trial, E. fully admitted the charges against him on all three criminal manifestations, did not dispute and did not deny that there was no knife in the course of the crime. At the same time, in each criminal scene, in order to seize the property of the victims, the convicted E. and his criminal accomplices committed an attack with a threat of violence dangerous to human life or health, that is, they threatened to use a knife that was not identified during the investigation, threatened to stab the victims with this knife. According to the explanations of paragraph 27 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 8" on judicial practice in cases of misappropriation of other people's property", an attack for the purpose of appropriation of other people's property should be understood as the actions of the perpetrator of a violent nature, committed suddenly for the victim and accompanied by threats of violence dangerous to human life and health or direct use of such violence. In the absence of circumstances aggravating the criminal law violation, it is necessary to differentiate the actions of the perpetrator in connection with the attack committed for the purpose of acquiring property, which at the time of application posed a real threat to the life and health of the victim, even if it did not cause harm to health, under the first part of Article 192 of the criminal code.
That is, when the victims began to demand the return of their mobile phones, convicted E. and his accomplice J. suddenly took out a knife made of gray iron metal, which was not identified during the investigation that they had, and committed actions that were accompanied by threats to use it directly. In this regard, the court correctly differentiated the criminal offense act of E. by paragraphs 1), 2) of the second part of Article 192 of the criminal code and gave a correct legal assessment by this article. The punishment assigned to the convicted E. in accordance with the crime committed by him, including taking into account criminal liability and mitigating circumstances, the correct punishment is established within the framework of the law. Therefore, the judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan left the judicial acts of local courts in relation to the convicted E. unchanged, and the petition of the lawyer M. was dismissed.
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