Causing serious harm to health when exceeding the limits of necessary protection
By the verdict of the Uyl District Court of Aktobe region dated January 28, 2019: t. previously not convicted, sentenced to 6 years in prison under Paragraph 1) of part two of Article 106 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code). The punishment imposed in accordance with Article 63 of the criminal code is considered conditional, and probation control is established for the entire term of the sentence imposed on it. Not to change the place of permanent residence, work, study, without notifying the authorized state body exercising control over the behavior of a person convicted of T. In accordance with part two of Article 44 of the Criminal Code; not to visit entertainment venues (cafes, clubs, restaurants); undergo a course of treatment for alcoholism; other duties that contribute to the correction of the convicted person and the Prevention of his commission of new criminal offenses are assigned. By the verdict of the court, T. was found guilty of intentionally causing serious harm to the health of two people. The criminal case was not considered on appeal. In the protest of the prosecutor general of the Republic of Kazakhstan, it is stated that the court verdict is subject to change due to improper application of the criminal law and incorrect imposition of punishment. Judging by the evidence in the case, in the actions of the convicted T. There was no intention to cause serious harm to the health of the victims, he defended himself from their beatings. Therefore, T.'s actions were re-differentiated from paragraph 1) of the second part of Article 106 of the Criminal Code to the first part of Article 112 of this code, assigning him a sentence of restriction of freedom for 6 months, forced labor in the amount of 50 hours, reducing the amount of forced payment to the Victims ' Compensation Fund to 24,050 tenge. As it turned out from the case materials, A. and K. in the village of Karatal, Uyl district, Aktobe region. On November 15, 2018, at about 20:00, a resident of the village, drunk with vodka, entered Sh. 's House and demanded that T., who was a guest in this house, go outside. When T. went outside, without a word, A. and K. hit him, hitting him with their fists in different parts of the body.
Causing serious harm to health when exceeding the limits of necessary protection
At the time when they were being interceded by M., T. ran into Sh. 's house again. A. and K., who followed him into the House, continued their blows with fists. At the same time, T. took a kitchen knife, which was on the stove in the kitchen room, and struck K. in the left chest and A. in the right chest. According to the conclusion of the forensic medical examination, the two caused serious damage to their health. In accordance with Article 32 of the criminal code, legal protection of the identity and rights of the defender and other persons, as well as the interests of society and the state protected by law, from socially dangerous encroachments, including by causing harm to the encroaching person, is recognized as necessary protection. As a result, the obvious inconsistency of protection with the nature of the encroachment and the degree of danger to society, in which the encroachment is caused to the encroachment, which is clearly excessive, not forced by the situation, is recognized as exceeding the limits of necessary protection. Such excesses entail criminal liability only in cases of intentional infliction of harm. In paragraph 3 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 2" on the application of laws on necessary protection", it is necessary to establish that in order to recognize a person as being in a state of necessary protection, a socially dangerous encroachment has been committed and this encroachment has caused him to commit actions In accordance with paragraph 11 of this normative resolution, the compliance of the defense with the nature and degree of public danger of the encroachment provides for taking into account the actual weight of the defense's own strength and the attacker's strength and preventing the infliction of more harm than necessary in repelling the encroachment, taking into account all circumstances. At the same time, it is stated that the inconsistency of the intentional harm caused to the defenders with the scope and nature of the harm caused or possible to the attacker entails criminal liability only when it is clearly clear that there is no need to cause such harm in order to exercise the right to defense. According to the materials of the case, the victims reported that A. and K. committed a dangerous attack on the Personality of T., and T., acting in order to protect themselves from the threat to themselves, acted as victims of A. I told K. that in the course of this action, he did not cause extreme harm to the victims, that is, he hit each of them in the chest with a knife found at the scene, went beyond the necessary defense, and he was supported by objective evidence.
In the response of the convicted T., At the time when he went to Sh. 's House and had dinner and alcohol, the villagers A. and K. came to the house, the last of whom asked him to go outside. Therefore, when T. went outside after them, A. and K. began to beat themselves without a word, did not understand what happened, ran inside the house, they chased after them and continued to beat inside the house, in order to protect themselves from them, they took a kitchen knife standing on the stove and beat A. and T. with it. The victims A. and K. from the House of this villager Sh. invited T. to the field. When the latter came out, without saying a word, the two of them hit him. That's when T. ran into the House. The victims followed him inside the house and hit T. again. At this time, T. could not stand it, took a kitchen knife lying on the stove and stuck it in the chests of the two of them. At the same time, according to the materials of the criminal case, T. had no extraneous thoughts, except for self-defense, when A. and K. caused serious harm to his health. Only after T., convicted in accordance with the above and the circumstances of the case, took a knife lying on the stove in a foreign House and struck the victims with the same knife, did the victims stop their illegal actions, that is, a group of people, for some time, dangerous encroachments on T.'s health, and left the scene. Hence the conclusion that if convicted T. did not use a knife to the victims in order to defend himself, they would not stop beating him. However, the judicial board believes that the use of knives by T. In relation to the victims does not correspond to the degree of threat. Taking into account the minor damage to the health of the convicted person as a result of the actions of the victims, it is concluded that there was no need for serious damage to the health of A. and K. on the part of T., as well as the use of a knife used as a high-risk tool. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan changed the verdict of the court of first instance in relation to the convicted T., and the actions of T. were again differentiated from paragraph 1) of the second part of Article 106 of the Criminal Code to the first part of Article 112 of this code. T. was sentenced to 6 months in prison, and was subjected to 50 hours of forced labor. The amount of forced payment to the Victims ' Compensation Fund was reduced to 24,050 tenge, and the rest of the sentence was left unchanged. The prosecutor general's protest was satisfied.
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