By using violence, humiliating human dignity, he led to a suicide attempt
By the verdict of the military court of the Akmola garrison dated June 28, 2019: J. was sentenced under part 2 of Article 451 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 5 years in prison, part 2 of Article 105 of the Criminal Code to 3 years of restriction of liberty, on the basis of part 3 of Article 58 of the Criminal Code by absorbing a less severe punishment with a more severe one. 5 years of imprisonment while serving a sentence in an institution of the medium-security penal system. The term of punishment was calculated from the moment of taking into custody. Zh. was stripped of the military rank of "captain". Recovered from J. in favor of T. as compensation for moral damage in the amount of 300,000 tenge, state duty – 1,263 tenge, procedural costs – 111,344 tenge, compulsory payment – 48,100 tenge to the Compensation Fund for Victims. Zh. was found guilty of the following. As a company commander, exceeding his authority, he systematically used violence, humiliated the human dignity of privates S. and T., which caused the latter serious harm to his health, and drove T., who was dependent on him, to attempt suicide. By the decision of the Judicial Board for Criminal Cases of the Military Court of the Republic of Kazakhstan dated August 28, 2019, the verdict remained unchanged.
In the protest, the Prosecutor General of the Republic of Kazakhstan, without disputing the evidence of guilt, asks to change the judicial acts against Zh., to cancel the conviction under part 2 of Article 105 of the Criminal Code as unnecessarily imputed and the application of part 3 of Article 58 of the Criminal Code. The guilt of J. the commission of the crime provided for in part 2 of Article 451 of the Criminal Code is confirmed by a set of reliable evidence. The interrogated victims T. and S. confirmed in court the facts of the systematic use of violence and humiliation by J. Their testimony contains a detailed description of all the circumstances of the commission of criminal acts, they are stable both during pre-trial and judicial proceedings. The testimony of the victims is consistent with the testimony of witnesses: D., O., S., K., Zh., B. In the note seized during the investigation, T. wrote the name Zh. before attempting suicide. By the conducted forensic medical examination of T. the presence of post-traumatic perforation of the eardrum, which is traumatic in nature, as well as bodily injuries qualified as serious harm to health: a double strangulation groove on the neck, a linear fracture of the hyoid bone on the right, accompanied by acute hypoxic encephalopathy, cerebral syndrome and life-threatening phenomena.
By using violence, humiliating human dignity, he led to a suicide attempt
The latter were formed as a result of compression of the neck organs with a noose during hanging. Psychiatric experts concluded that at the time of the suicide attempt, T. was not suffering from mental illnesses that could have influenced this decision, and was not prone to fantasizing or lying. Thus, there is a causal relationship between J.'s actions and T.'s suicide attempt. The actions of J. they are correctly qualified as abuse of power, which entailed grave consequences: causing serious harm to health, attempted suicide. At the same time, the qualification of the actions of J. according to part 2 of Article 105 of the Criminal Code, it is superfluous. According to paragraph 11 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated October 28, 2005 No. 6 "On judicial practice in cases of military criminal offenses", the concept of grave consequences is given in paragraph 4) of Article 3 of the Criminal Code. Such consequences are covered by the disposition of these articles of the Criminal Code and additional qualifications for other types of criminal offenses are not required. According to the same rule, abuse of power (part two of Article 451 of the Criminal Code) by a superior or official should be qualified, which entailed grave consequences for the life and health of the victim. Thus, in the event of serious consequences, the actions of the perpetrator should be qualified only under part 2 of Article 451 of the Criminal Code. The courts of the first and appellate instances, justifying the qualification of Zh.'s actions under two articles of the Criminal Code, proceeded from the fact that the suicide attempt was not listed as grave consequences in Article 3 of the Criminal Code.
However, the courts did not take into account the fact that serious harm to the victim's health occurred as a result of a suicide attempt, i.e., in fact, we are talking about the same consequence for the victim. In addition, this interpretation of the law is contradictory in itself. Based on the above arguments of previous judicial instances, in the case of suicide of the victim, actions are qualified under one article of the Criminal Code, and in the case of his attempt - under two articles, which is undoubtedly incorrect. Based on the above, part 2 of Article 105 of the Criminal Code is subject to exclusion as unnecessarily imputed. Along with this, it is necessary to exclude the application of the rules of part 3 of Article 58 of the Criminal Code. When appointing J. penalties under part 2 of Article 451 of the Criminal Code take into account the requirements of part 3 of Article 52 of the Criminal Code, mitigating circumstances are taken into account: no criminal record, positive characterization, the presence of a dependent minor child, and an aggravating circumstance - violation of the oath. In this regard, the minimum penalty provided for by the sanction of part 2 of Article 451 of the Criminal Code was imposed. There are no grounds for further reduction. The rules of part 2 of Article 55 of the Criminal Code are not applicable. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in relation to Zh. and excluded the conviction under part 2 of Article 105 of the Criminal Code and the application of the rules of part 3 of Article 58 of the Criminal Code. The rest of the judicial acts remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied.
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