Causing death by negligence as a result of criminal negligence intentional infliction of serious harm to health, resulting in the death of the victim by negligence

By the verdict of the Shuisky District Court of the Zhambyl region dated September 10, 2020: S., who had no previous criminal record, was sentenced under part 3 of Article 106 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 8 years in prison to serve his sentence in an institution of the medium–security penal system. A compulsory payment to the Compensation Fund for Victims in the amount of 20 MCI in the amount of 55,560 tenge and procedural costs to the state revenue in the amount of 4,565.51 tenge were collected from convicted S. By the verdict of the Court of S. He was found guilty of intentionally causing serious harm to health from hooligan motives, which negligently caused the death of the victim. By the decision of the judicial board for Criminal Cases of the Zhambyl Regional Court dated November 11, 2020, the verdict remained unchanged. In the petition, lawyer U., disagreeing with the judicial acts issued, points out a biased and incomplete study of all the evidence, believes that the prosecution is based only on assumptions, which led to the conviction of an innocent man. It draws attention to the fact that, according to the conclusions of the forensic medical examination, the possibility of bodily injury to the victim when falling from a height of his own height is not excluded. She believes that A. used threats and insults to force S. into a fight, but her client tried to calm him down and resolve everything peacefully. In addition, the court did not recognize the absence of a criminal record, positive characteristics and the presence of a permanent place of work as mitigating circumstances.

He requests to review judicial acts, to qualify S.'s actions under part 1 of Article 104 of the Criminal Code and to commute the measure of punishment. In accordance with paragraph 1 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 1 "On the qualification of certain criminal offenses against human life and health" (hereinafter referred to as the Regulatory Resolution), in order to ensure the correct application of criminal law in the qualification of criminal offenses against life and health and the imposition of fair punishment, it is necessary to establish the form of guilt, the type of intent, motives and purpose, method, setting and stage of the commission of a criminal offense, the severity of the consequences. According to paragraph 30 of the above-mentioned Normative Resolution, determining the subjective side of a criminal offense and the form of guilt, it is necessary to proceed from the totality of all the circumstances of the committed criminal offense, take into account, in particular, the nature of the relationship between the perpetrator and the victim, the method of commission and instrument of the criminal offense, the number, nature and localization of wounds and other bodily injuries, the reason for the termination of illegal actions by the subject a criminal offense, etc., as well as his behavior before and after committing a criminal offense. In accordance with paragraph 19 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On the court verdict", citing evidence in the reasoning part of the verdict, the court should not limit itself to listing and citing their contents, it is obliged to make a comprehensive analysis of them, evaluate all evidence, both incriminating and justifying the defendant., both confirming the court's conclusions and contradicting these conclusions. However, the court did not comply with these requirements of the law. Thus, it follows from the court verdict that on May 31, 2020, S., being near the Azamat store, noticed that a previously unknown A. was accosting citizens in a state of alcoholic intoxication and using obscene language, to which he made a remark. Victim A. invited him to step aside to sort things out and tried to strike. S. struck A. with his right hand in the face area, causing the latter to fall to the ground. Then, grabbing A. by the neck, he began to hold him down until he calmed down, and headed towards his house. At that time, A., having taken off his shirt, followed S., caught up with him near the building of Kazpost JSC, began to use obscenities against him again and tried to hit the latter. S. struck one blow to A.'s head, causing the latter to fall to the ground and subsequently died at the scene. During the main trial, convict S. did not admit guilt under part 3 of Article 106 of the Criminal Code and testified that A., after making remarks about himself, tried to hit him, and in response he hit him with the palm of his right hand, causing the victim to fall face down to the ground. Then S. grabbed him by the neck and asked him to calm down. When he and his friends were heading home, A. caught up with them near the Kazpost building, began to use obscene words and throw himself at him. He struck the victim once in the face with his right hand, causing A. to fall to the ground. Approaching the victim, he touched his neck, made sure that A. was breathing, and went home. S.'s arguments about the circumstances of the incident are supported by the testimony of witnesses I., O., D., B., video footage from surveillance cameras and other case materials. According to the conclusion of the forensic medical examination on the body of the victim A. The following injuries were found: on the anterolateral surface of the frontotemporal region on the right with a transition to the zygomatic region, on a section of 17.0 x 6.5 cm, there are many abrasions of various geometric shapes measuring 0.3 x 2cm to 4.5 x 1.3 cm, covered with a sinking brown crust.

Similar abrasions were found on the lateral surface of the lower jaw on the right, in the projection of the lower jaw body, measuring 8.5 x 2.7 cm. Death occurred as a result of a closed craniocerebral injury accompanied by traumatic hemorrhage under the dura and soft meninges, contusion of the brain substance, complicated by edema and swelling of the brain substance, the external manifestation of which is hemorrhage on the musculoskeletal flap of the head, hemorrhage in the right temporal muscle and abrasions of the head and face, which could have formed from exposure to solid blunt objects and caused serious harm to health, on the basis of danger to human life at the time of injury, and they are directly causally related to the onset of death. These injuries could have been caused by blunt, hard objects shortly before death. Given the nature and location of the above-mentioned injuries, the possibility of their formation during a fall from a height of one's own height is not excluded. The expert M. In the main trial, he confirmed the conclusion of the forensic medical examination and explained that he did not exclude the possibility of bodily injury to the victim when falling from a height of his own height, as well as when hitting solid protruding objects during the fall. C. both during the pre-trial investigation and in the main trial, he gave stable, consistent testimony about the absence of he intended to cause serious harm to the victim's health. His arguments in court were not refuted by anything. According to the conclusion of the forensic medical examination of S. Injuries were found in the form of abrasions to the trunk and left upper limb, which could have been caused by the impact of blunt hard objects and caused minor harm to health due to a short-term disorder. By virtue of the presumption of innocence, all irremediable doubts about the defendant's guilt, as well as doubts arising from the application of criminal and criminal procedure laws, are interpreted in his favor. According to the law, murder committed for hooligan motives, causing serious or moderate harm to health only in connection with their commission in a public place or in the presence of outsiders, if the motive for their commission was, for example, jealousy, revenge, hostile relations and other motives that arose on the basis of personal relationships., as well as the illegal behavior of the victim who initiated the quarrel or fight. By virtue of what is indicated in S.'s actions, there is no qualifying feature: the commission of a crime for hooligan motives. There is also no evidence in the case file that the perpetrator's actions were motivated by intent to cause death or serious harm, and that the serious harm to health that caused the victim's death was caused directly by the convict's blow. Neither the previous crime, nor the subsequent behavior of S., nor the number of blows inflicted indicate the direction of his intent to cause serious harm to A.'s health, resulting in his death. After delivering one blow and the victim's subsequent fall to the ground, S. did not use any violence against him.

Thus, in this case, there are no grounds to classify the actions of the convicted person as intentional infliction of serious harm. In connection with the above, the board considers that S., striking the victim with one hand in the face area, did not foresee the possibility of the victim's death, although with due care and prudence he should have and could have foreseen that the drunk A. would fall from the blow, hit his head on a hard surface and would be harmed or lose his life. In this case, taking into account the provisions of Article 21 of the Criminal Code and the clarifications of paragraph 27 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," S.'s actions should be regarded as causing death by negligence as a result of his criminal negligence. Based on the above action, S. must be reclassified from part 3 of Article 106 of the Criminal Code to part 1 of Article 104 of the Criminal Code. The term of punishment should be imposed in accordance with the rules of Articles 52 and 55 of the Criminal Code. In accordance with paragraph 1 of part 5 of Article 46 of the Criminal Code. He is to serve his sentence in an institution of the minimum security penal system. Based on paragraph 3) of part 3 of Article 62 of the Criminal Code, the time spent by S. in custody from June 1 to November 11, 2020, should be counted as the term of serving his sentence at the rate of one day for two days of serving his sentence of imprisonment in a minimum security facility. On the basis of the above, the judicial board of the Supreme Court for Criminal Cases changed the judicial acts of the local courts in relation to S. Actions of S. they were reclassified from part 3 of Article 106 of the Criminal Code to part 1 of Article 104 of the Criminal Code and sentenced to 1 (one) year and 6 (six) months of imprisonment to be served in an institution of the minimum security penal system On the basis of paragraph 3) of part 3 of Article 62 of the Criminal Code. The time of S.'s detention from June 1 to On November 11, 2020, the term of serving a sentence was calculated at the rate of one day for two days of serving a sentence of imprisonment in a minimum security facility. The rest of the judicial acts remained unchanged. The petition of lawyer U. satisfied. 

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