Comment to Article 103. Intentional infliction of serious harm to health of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Intentional infliction of serious harm to health that is life-threatening or has resulted in loss of vision, speech, hearing or any organ, or loss of its functions, or has resulted in permanent disfigurement of the face, as well as other harm to health that is life-threatening and has caused a health disorder combined with significant permanent loss of general disability of at least by one-third, or with a known complete loss of professional ability for the perpetrator, or resulting in termination of pregnancy, mental disorder, drug addiction or substance abuse, -
is punishable by imprisonment for a term of three to seven years.
2. The same act committed by:
a) in relation to two or more persons;
b) in the relationship of a person and his relatives in connection with the performance of this person's official activities or the performance of a professional or public duty;
c) in relation to a person who is obviously helpless for the perpetrator, as well as involving kidnapping or hostage-taking;
d) with extreme cruelty;
e) an organized group;
f) for hire;
g) out of hooligan motives;
h) motivated by social, national, racial, religious hatred or enmity;
i) for the purpose of using the victim's organs or tissues;
j) repeatedly or by a person who has previously committed murder, with the exception of acts provided for in Articles 96 of this Code, -
is punishable by imprisonment for a term of four to eight years.
3. The acts provided for in the first or second parts of this Article, which negligently caused the death of the victim, -
is punishable by imprisonment for a term of five to ten years.
The public danger of this crime lies in the severity of the act itself, the consequences that have occurred, and, finally, in the prevalence of such acts. By committing this crime, the subject encroaches on one of the most valuable personal assets — her health, sometimes causing irreparable damage: incapacitating, making her disabled, thereby ending her professional career, often all this leads to death. Intentional infliction of serious harm to human health occupies a dominant place in the dynamics of crime.
The object of this crime is the health of another person. "Health is a state of complete physical, mental and social well-being, and not only the absence of disease or infirmity," health is defined in the Constitution of the World Health Organization, adopted on June 22, 1946. In the Law of the Republic of Kazakhstan "On Public Health Protection" dated July 7, 2006, health is understood as a state of complete physical, spiritual (mental) and social well-being, and not only the absence of diseases and physical defects. Health protection is a complex of political, economic, medical, social and other measures aimed at ensuring the health of the population. K090000193_
The objective side of the crime under consideration is characterized by a socially dangerous act (action or omission), the consequences of unlawfully causing serious harm to another person's health, as well as the causal relationship between the criminal act and the consequences that have occurred.
When causing serious harm to health, both physical (blows, shots, etc.) and mental (threat or fright that caused mental illness) effects can be applied. The perpetrators may use various tools and devices, natural forces, sources of increased danger, animals, etc.
When harm is caused by inaction, the perpetrator does not commit actions that could have prevented harm to the health of another person, provided that he was obliged to commit and had the opportunity to do so (for example, the untimely delivery of medicine to the patient by medical personnel, which caused a disorder of his health). Harm to health is understood as a violation of the anatomical integrity of organs (tissues) or their physiological functions (bodily injuries), or diseases or pathological conditions that have arisen as a result of exposure to various environmental factors: mechanical, physical, chemical, biological, mental. Most of these consequences and disorders are established in the process of conducting a forensic medical examination (at the same time, the "Rules for the organization and conduct of a forensic medical examination" are in force, approved by Order of the Minister of Health of the Republic of Kazakhstan dated December 20, 2004 No. 875/1. V100006305_
A sign of serious harm to health is life–threatening harm to health, and in the absence of this sign, such consequences of harm to health as: loss of vision, speech, hearing; loss of any organ or loss of organs of function; permanent disfigurement of the face; health disorder associated with significant permanent loss of general disability for at least one third (33% and above); complete loss of professional ability to work; mental disorder (mental illness); termination of pregnancy; drug addiction or substance abuse.
Both bodily injuries and pathological conditions resulting from exposure to various external factors that may endanger the life of the victim should be considered life-threatening.
The prevention of deaths caused by medical care, self-help or mutual assistance, as well as a combination of accidental circumstances, should not be taken into account when assessing the danger to life. Life-threatening health hazards include:
- penetrating wounds to the skull, including those without brain damage;
- open and closed fractures of the bones of the arch and base of the skull, with the exception of isolated cracks only in the outer plate of the arch of the skull and fractures of the bones of the facial skeleton that are not part of the cerebral skull, fractures of parts of the latticed, sphenoid bones involved in the formation of the cerebral skull; - severe brain contusion, moderate brain contusion in the presence of symptoms brain stem lesions;
- epidural, subdural, subarachnoid, intracerebral and intraventricular hemorrhage in the presence of life-threatening conditions;
- wounds penetrating into the spinal canal, including without damage to the spinal cord;
- fractures-dislocations or fractures of the bodies, or bilateral fractures of the arches of the cervical vertebrae, as well as unilateral fractures of the arches of the first and second cervical vertebrae, including those without spinal cord dysfunction;
- dislocations of the cervical vertebrae; subluxations of the cervical vertebrae, accompanied by life-threatening conditions or impaired spinal cord function;
- closed spinal cord injuries in the cervical region, accompanied by a life-threatening condition and impaired spinal cord function;
- fracture or fracture dislocation of one or more thoracic or lumbar vertebrae with impaired spinal cord function or with the presence of clinically established severe shock and other life-threatening conditions;
- closed injuries to the thoracic, lumbar and sacral segments of the spinal cord, accompanied by severe spinal shock or impaired pelvic organ function;
- wounds penetrating into the lumen of the pharynx, esophagus, larynx, trachea, as well as open lesions of the thyroid and thymus glands;
- open and closed fractures of the cartilaginous larynx and trachea, accompanied by life-threatening conditions;
- chest wounds penetrating into the pleural cavity, pericardial cavity or mediastinal tissue, including without damage to internal organs (subcutaneous emphysema cannot be considered as a sign of a penetrating wound when there are no hemopneumothorax phenomena);
- abdominal wounds penetrating into the abdominal cavity (peritoneal cavity and retroperitoneal space), including without damage to internal organs;
- wounds penetrating into the cavity of the bladder, upper and middle parts of the rectum, as well as extensive open damage to all layers of the lower rectum, as well as extensive open damage to all layers of the lower rectum;
- open and closed injury (rupture) of the internal organ of the thoracic or abdominal cavities, or retroperitoneal space (kidneys, adrenal glands, pancreas), or diaphragm, or prostate gland, or ureter, or membranous part of the urethra;
- bilateral fractures of the posterior semicircle of the pelvis with rupture of the iliosacral joint and violation of the continuity of the gas ring, or double fractures of the pelvic ring in the anterior and posterior parts with violation of its continuity;
- open fractures of long tubular bones in the diaphyseal part (humerus, femur, tibia, both bones of the forearm);
- open fractures of the radius, ulna and fibula; the severity of injury to health in closed fractures of the humerus, femur and tibia, as well as closed injuries to large joints (shoulder, elbow, wrist, hip, knee, ankle) is determined depending on the danger to life caused by them, the duration of the disorder to health, or on the basis of persistent disability;
- damage to a large blood vessel: aorta, carotid (common, internal, external), subclavian, brachial, femoral, popliteal arteries or accompanying veins;
- damage to peripheral vessels (head, face, neck, forearm, hand, lower leg) is qualified depending on the specific danger to life caused by them (for example, massive blood loss, severe shock, and others);
- injuries resulting in life-threatening conditions: severe shock (3rd, 4th degree), coma of various etiologies; massive blood loss that caused a collision; acute cardiac or vascular insufficiency: collision: severe cerebral circulatory disorders; acute renal or acute liver failure: severe acute respiratory failure; purulent-sentic conditions; disorders of regional or organ circulation, leading to infarction of internal organs, gangrene of extremities; embolism (gas or fat) of cerebral vessels; thromboembolism; a combination of life-threatening conditions;
- third- and fourth-degree thermal burns with a lesion area exceeding 15 percent of the body surface; third-degree burns of more than 20 percent, second-degree burns of more than 30 percent of the body surface, as well as burns of a smaller area accompanied by life-threatening conditions (the consequences of burns should be assessed without taking into account plastic and reconstructive surgery);
- chemical burns (concentrated acids, caustic alkalis, and other toxic substances) that have caused, in addition to local, general toxic effects that are life-threatening;
- poisoning by chemical substances (poisons) or pathological conditions caused by biological agents and resulting in life-threatening conditions;
- compression of the neck and other types of mechanical asphyxia, accompanied by pronounced signs of life-threatening phenomena (cerebrovascular accident, loss of consciousness, amnesia, and others), if this is established by objective data.
Non-life-threatening injuries related to serious harm to health in terms of outcome and consequences are: loss of vision, speech, hearing or any organ, or loss of organ functions:
- vision loss should be understood as complete permanent blindness in both eyes or a decrease in visual acuity to light perception: loss of vision in a single eye;
- loss of vision in one eye entails the loss of an organ's function and therefore refers to serious harm to health: the loss of one healthy eye (sighted) eyeball is the loss of an organ and also refers to serious harm to health;
- damage to the blind eye, which required its removal, is assessed depending on the duration of the disorder, with mandatory indication of the indelibility of the damage.;
- loss of speech should be understood as the loss of the ability to express one's thoughts in articulate sounds understandable to others, or as a result of loss of voice;
- hearing loss should be understood as complete deafness or such an irreversible condition when the victim does not hear spoken speech 3-5 cm from the auricle. Hearing loss in one ear is assessed as a loss of organ function and therefore refers to serious harm to health.;
- the loss of an organ or the loss of an organ's functions should be understood as: the loss of an arm or leg, that is, their separation from the body or loss of their functions due to paralysis or other condition that precludes their activity (anatomical loss of an arm or leg should be understood as separation from the body of the entire arm or leg, and hands and feet);
- loss of productive capacity, consisting in loss of the ability to copulate, or loss of the ability to fertilize, conceive, gestate, procreate, and breastfeed;
- loss of one testicle, considered as organ loss;
- in case of facial injuries, the expert determines their severity in accordance with the signs contained in these rules: in addition, he must determine whether the damage is erasable or indelible (erasability should be understood as a significant decrease or the possibility of disappearance of the visible effects of the injury: the severity of scars, deformities, facial expression disorders, and others, over time or under the influence of conservative (non-surgical) treatment; if surgical intervention (cosmetic or plastic surgery) is required to eliminate them, then the damage to the face is considered indelible; when establishing indelibility, the expert should conclude that if such consequences are recognized by the court or investigator as disfiguring the face, the damage should be assessed as causing serious harm to health);
- significant permanent loss of general ability to work by more than one third (more than 33%): the extent of significant permanent loss of general ability to work in case of injury is established after the determined outcome of the injury;
- disability in children is determined based on the general provisions established by these Rules.;
- in people with disabilities, significant permanent loss of general ability to work due to injury is defined as in practically healthy people, regardless of disability and its group;
- in case of complete loss of professional ability to work, the determination is made in accordance with the requirements of the establishment by medical and social expert commissions of the degree of loss of professional ability by employees who have suffered injury or other health damage related to the performance of their work duties.;
- termination of pregnancy, regardless of its duration, is a serious harm to health if it is not related to the individual characteristics of the body, but is directly causally related to damage.;
- diagnosis of a mental disorder (mental illness), drug addiction, and substance abuse is carried out by psychiatric, narcological, and toxicological examinations, but their relationship to the injury, as well as an assessment of the severity of harm to health due to mental illness, drug addiction, and substance abuse, is carried out by the SME commission, which, if necessary, includes a psychiatrist, narcologist, and toxicologist (mental disorder should be understood as mental illness (mental illness); the group of mental illnesses should not include reactive states associated with damage to the nervous system (psychoses, neuroses); damage is classified as serious harm to health only if it has led to the development of mental illness, regardless of the duration of its course and the degree of curability).
Part 1 of Article 103 of the Criminal Code provides for a health disorder associated with significant permanent loss of general ability to work or complete loss of professional ability to work, while general ability to work may remain.
A health disorder should be understood as a condition of the body in which clinically pronounced painful changes of a local and (or) general nature are detected due to a specific injury or disease, that is, when there is a violation of the anatomical integrity or physiological function of organs and tissues.
General ability to work should be understood as a set of innate and acquired human abilities for action aimed at obtaining a socially significant result in the form of a certain product, product or service.
Professional ability to work should be understood as the ability to work in one's profession or another profession of equal pay and qualifications.
In case of loss of professional ability to work, the perpetrator knowingly intentionally causes such serious harm to health, which primarily relates to the professional activity of the victim (for example, damage to the fingers of a pianist).
Termination of pregnancy, regardless of its duration, is recognized as serious harm to health if it is not related to the individual characteristics of the body, but consists in a direct causal relationship with the act of the perpetrator. In these cases, a forensic medical examination is carried out with the participation of an obstetrician-gynecologist.
Signs of serious harm to health include mental disorder, drug addiction or substance abuse. Diagnosis of mental illness is carried out by psychiatric examination, but mental illness must be caused by an unlawful act of the perpetrator. Also, the disease of drug addiction or substance abuse due to an unlawful act of the perpetrator is determined by a commission of forensic medical experts with the participation of a narcologist, a toxicologist.
The subjective side of the crime is characterized by direct or indirect intent. The perpetrator is aware that as a result of his socially dangerous actions, serious harm is caused to the health of another person, anticipating the possibility or inevitability of socially dangerous consequences and desires (direct intent) or consciously allows them, or treats them indifferently (indirect intent).
The intent is often vague (unspecified). The actions of the perpetrator in such cases are qualified by the actual consequences that have occurred. If the perpetrator's intent was aimed at causing serious harm to health, and as a result moderate or minor harm was caused, the actions of the perpetrator should be qualified as an attempt at a serious crime (Part 3 of art. 24 and Part 1 of art. 103 of the Criminal Code of the Republic of Kazakhstan).
Motives and goals can be very diverse (jealousy, revenge, envy, hooligan motives, etc.). Some motives and goals are the basis for attributing serious harm to qualified types of the crime in question.
The subject is a sane individual who has reached the age of 14.
The qualified types of the crime under consideration are defined in Part 2 of Article 103 of the Criminal Code. These include causing serious harm to health,:
a) in relation to two or more persons;
b) in relation to a person or his relatives in connection with the performance of this person's official activities or the performance of a professional or public duty;
c) in relation to a person who is obviously helpless for the perpetrator, as well as involving kidnapping or hostage-taking;
d) with extreme cruelty;
e) an organized group;
f) for hire;
g) out of hooligan motives;
h) motivated by social, national, racial, religious hatred or enmity;
i) for the purpose of using the victim's organs or tissues;
k) repeatedly or by a person who had previously committed murder under Article 96 of the Criminal Code.
The content of the listed qualifying features is disclosed when considering the qualifying features of the composition of the murder of art. 96 of the Criminal Code. Therefore, it is impractical to re-analyze similar signs in detail with only a difference in the consequences of a criminal act.
The only exception is paragraph "k" of Part 2 of Article 103 of the Criminal Code, which provides for liability for causing serious harm repeatedly or by a person who had previously committed murder, provided for in Article 96 of the Criminal Code.
The qualification of a criminal act under paragraph "k" of Part 2 of Article 103 of the Criminal Code is carried out in cases of repeated infliction of serious harm to health committed at different times against two or more victims, as well as against the same person, but with renewed intent each time.
If a person who has previously committed a murder under Article 96 of the Criminal Code causes serious harm to health, his actions also fall under paragraph "k" of Part 2 of Article 103 of the Criminal Code.
Part 3 of Article 103 of the Criminal Code provides for criminal liability for causing serious harm to health, resulting in the death of the victim by negligence. This criminal act combines two independent elements — intentional infliction of serious harm to health and causing death by negligence. This qualification consists in causing serious harm to the victim's health (life-threatening), which was the immediate cause of the victim's death.
The qualification of the crime in question causes certain difficulties in practice. This is due to the similarity of Part 3 of Article 103 of the Criminal Code with murder (in terms of consequences). The differentiation of these crimes is based on the subjective side. 96 of the Criminal Code), the perpetrator commits both actions intentionally, and intentionally refers to the consequences of his act in the form of causing death to the victim. And when causing serious harm to the victim's health, the act is intentional, and the resulting consequence — the death of the victim — is guilt in the form of negligence (arrogance or negligence). In accordance with article 22 of the Criminal Code, such a crime is considered to have been committed intentionally.
The crime provided for in Part 3 of Article 103 of the Criminal Code is subjectively characterized by: intent (direct or indirect) to cause serious harm to health (the first consequence) and negligence (thoughtlessness or negligence) in relation to the second consequence — death. This means that the infliction of death was not covered by the perpetrator's intent, however, he foresaw the possibility of its occurrence, but without sufficient grounds arrogantly counted on its prevention or did not foresee, but according to the circumstances of the case he should have and could have foreseen the possibility of death. Only such an interpretation of guilt makes it possible to distinguish what was done from murder, in which a person desires or deliberately allows death, and from causing death by negligence, in which there is always no intent to cause serious harm to human health. If the perpetrator had no intent (direct or indirect) to cause serious harm to health, and death occurred due to a violation of the rules of precautions in handling, and he should have and could have foreseen it, according to the circumstances of the case, then his actions are qualified as causing death by negligence.
The Supreme Court of the Republic of Kazakhstan notes that when distinguishing murder from intentional infliction of serious harm to health resulting in death, it is necessary to take into account the direction of the perpetrator's intent, his subjective attitude to the results of his actions – the death of the victim. When committing murder with direct intent, the perpetrator is aware of the illegality of his actions, anticipates the onset of a socially dangerous consequence – the death of the victim and desires it. When causing serious harm to health, the perpetrator acts with intent to cause bodily harm, is aware of the socially dangerous nature of the actions he commits, but his attitude towards the death of the victim is expressed in the form of negligence. For example, stabbing the victim in the arm, which resulted in death from an artery injury that caused acute blood loss, indicates intent to cause serious harm to health, not murder.
When deciding on the qualification of a person's actions, which resulted in causing serious harm to the victim's health, resulting in death, it is necessary to proceed from the direction of the perpetrator's intent, and not only from the consequences of the perpetrator.
Special attention should be paid to the long period of time that has elapsed from the moment of intentional injury to death. The time interval itself does not exclude the intention of the subject to take the life of another person. Similarly, death that occurs immediately after serious injury to health does not always indicate the presence of intent to kill. In the first case, there may be murder (Part 1 of Article 96 of the Criminal Code), and in the second case, it may be a crime under Part 3 of Article 103 of the Criminal Code. When solving this issue in practice, difficulties arise in terms of qualifications. There is a misconception that the long time interval between injury and death precludes responsibility for murder.
In law enforcement practice, there are also problems distinguishing intentional infliction of serious harm to health that resulted in death (Part 3 of Article 103 of the Criminal Code) from causing death by negligence (Article 101 of the Criminal Code). The latter occurs when a person does not foresee not only the possibility of causing death, but also serious harm to health, although he was obliged and could have foreseen the possibility of their occurrence.
If the perpetrator had no intention (direct or indirect) to cause serious harm to the health and death of the victim, but according to the circumstances of the case he should have and could have foreseen the consequences (death of the victim), his actions are qualified as causing death by negligence (art. 101 of the Criminal Code). For example, the guilty person punches the victim in the face, from which the latter, unable to stay on his feet, falls and dies from a head injury sustained during the fall.
The crimes provided for in Parts 1, 2 and 3 of art. 103 of the Criminal Code of the Republic of Kazakhstan are considered a serious crime.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of adoption: NO Body that adopted the act: 180000000000 Region of operation: 100000000000 Registration number of the NPA assigned by the normative body: 167 Status of the act: new Scope of legal relations: 028000000000 Form of the act: COMM Legal force: 1900 Language of the act: rus
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