Commentary to article 96. Murder of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Murder, that is, the unlawful intentional infliction of death on another person,

- is punishable by imprisonment for a term of six to fifteen years.    

2. Murder:      

a) two or more persons;      

b) a person or his relatives in connection with the performance of this person's official activity or the performance of a professional or public duty;      

c) a person who is obviously in a helpless state for the perpetrator, as well as involving kidnapping or hostage-taking;      

d) a woman who is obviously pregnant for the perpetrator.;    

e) committed with extreme cruelty;      

f) committed in a way that is dangerous to the lives of many people;      

g) committed by a group of persons, a group of persons by prior agreement, or an organized group;      

h) out of mercenary motives, as well as for hire or involving robbery, extortion or banditry; and) out of hooligan motives;      

j) committed in order to conceal another crime or facilitate its commission, as well as involving rape or violent acts of a sexual nature;      

k) motivated by social, national, racial, religious hatred or enmity or blood feud;      

m) committed for the purpose of using the victim's organs or tissues;      

h) committed by a person who had previously committed murder, with the exception of the acts provided for in Articles 97-100 of this Code,

- is punishable by imprisonment for a term of ten to twenty years with or without confiscation of property, or by death penalty with or without confiscation of property, or by life imprisonment with or without confiscation of property.

     The public danger of murder is expressed in the fact that as a result of committing this grave crime, a person's constitutional right to life is violated (Article 15 of the Constitution of the Republic of Kazakhstan), regardless of his citizenship, nationality and race, origin and age, social origin, occupation, state of health, education, intelligence. Human life is an essential, inherently social value that belongs to everyone from birth.      

Murder is the most serious crime against a person. 96 of the Criminal Code defines that murder is the unlawful intentional infliction of death on another person.      

The object of murder is human life. Human life is a set of biological and social factors that make it possible for a person to exist in nature and in a society of his own kind.      

To resolve the issue of the presence or absence of an object of encroachment on life, it is necessary to establish its initial and final moment.      

In the criminal law sense, life exists when a person is born and has not yet died. It is impossible to take the life of a person who has not yet been born or died. In medicine, the beginning of life is associated with the fertilization of a female egg by a male germ cell, i.e. the moment of conception. The moment of the beginning of a person's life should be considered the beginning of physiological labor.      

The moment of human death is biological death. In accordance with the Law of the Republic of Kazakhstan "On Public Health Protection" dated July 7, 2006 (as amended dated 11.01.2007), biological death should be understood as the cessation of vital activity of the body, in which vital functions have disappeared. Unlike biological death, there is a concept of "clinical death", which is characterized by the suspension of the heart. Modern medical development is such that the heart can be revived even a few hours after it stops, not to mention the transplantation of another person's heart. In such cases, life can still be restored through resuscitation measures. The cerebral cortex dies within 4-7 minutes after cardiac arrest and the person cannot be resuscitated, i.e., irreversible brain death occurs. In accordance with the aforementioned Law of the Republic of Kazakhstan, irreversible brain death is a complete loss of the integral function of the nerve cells of the brain, accompanied by the death of all brain matter, accompanied by the death of all brain matter, including the hemispheres of the brain, the trunk, bridge, midbrain and cerebellum. K090000193_      

Causing clinical death to a person whose heart function will be restored later qualifies as attempted murder (art. 24, part 3 and art. 96 of the Criminal Code). In turn, an attempt on the life of a person who is in a state of clinical death can be recognized as murder.      

According to the Law of the Republic of Kazakhstan "On Public Health Protection" dated July 7, 2006, euthanasia is the satisfaction of a patient's request to accelerate his death by any actions or means, including the administration of medicines or other means, as well as the cessation of artificial measures to maintain his life in cases of an unfavorable outcome of the disease. According to Kazakh legislation, euthanasia is unacceptable and amounts to murder. It should be noted that the criminal law equally protects the life of any person, therefore, in some cases, the identity of the victim is important for qualification, especially for qualified types of murders (paragraph "b" of Part 2 of Article 96 of the Criminal Code of the Republic of Kazakhstan). In certain situations, qualifications are influenced not so much by the identity of the victim as by his behavior before the crime. For example, murder in a state of passion (Articles 98 of the Criminal Code), murder in excess of the limits of necessary defense and in excess of the measures necessary to detain the person who committed the crime (Articles 99, 100 of the Criminal Code). K090000193_      

From the objective point of view, murder can be committed either through action or inaction. Taking a person's life can be expressed both in physical (wounding, strangulation, poisoning, etc.) and mental effects on the victim (threats, intimidation, false information, etc.).      

Murder by omission implies that the perpetrator had a duty to prevent the occurrence of a fatal outcome. This obligation may arise from a contract, employment relationship, previous behavior of the perpetrator, and other factual circumstances. For example, there are cases in judicial practice when a mother intentionally causes the death of her child by leaving him alone in a locked apartment for a long time without food and assistance.      

An obligatory sign of the objective side is the onset of death. The time of death does not matter for the qualification of a crime. It is important to establish the existence of a causal relationship between the act and the death that occurred. In some cases, qualifications are influenced by optional features of the objective side - the time, place, method, and circumstances of the crime.      

The subjective side of murder is characterized by an intentional form of guilt. A person is aware that he is committing an act that will result in the death of another person, really anticipates the possibility or inevitability of this consequence and desires its occurrence - direct intent, and if he consciously allows death to occur or is indifferent to the occurrence of such a consequence - indirect intent. According to the Criminal Code of the Republic of Kazakhstan, negligent infliction of death on another person does not refer to murder, but refers to other crimes against life.      

Murder is also committed with direct intent, not only when causing death is the ultimate goal of the perpetrator's actions, but also when the goal lies beyond the scope of the murder. For example, the murder of a random eyewitness to the crime (the goal is to avoid detection) or the murder of a cashier who refused to transfer money to the criminal (the goal is to seize the money). Desire as a volitional moment of intent is also present in these cases.      

Unlike the completed crime provided for in Article 96 of the Criminal Code, which can be committed with both direct and indirect intent, an attempt at premeditated murder from the subjective side is characterized only by direct intent, when the perpetrator, while committing premeditated actions, realized their socially dangerous nature, acted with the aim of causing death to the victim, foresaw its onset and desired However, due to circumstances beyond his control, death did not occur. In this regard, it should be clarified and established whether the perpetrator acted with intent to cause the death of the victim, whether he desired such a result, what circumstances prevented the death of the person and whether they depended on the will of the perpetrator.      

For the qualification of murder, the moment of the formation of intent does not matter. Murder with premeditated intent (premeditated) is not considered by criminal law as a more serious type. The degree of public danger depends more on the motive, purpose, method of murder and other circumstances that the law recognizes as qualifying. All the criminal codes of the Soviet period stood in the same position.      

Such features as motive and purpose are of great importance for characterizing the subjective side of murders. The motives and goals of the actions of the perpetrator in the murder may be of a different nature and affect the qualification of the deed or are taken into account when imposing punishment (for example, murder for hooligan or mercenary motives, etc.).      

Judicial investigative practice usually refers to murders classified under Part 1 of Article 96 of the Criminal Code.:

1) revenge killing. I. and D.'s work colleagues had been on hostile terms for a long time due to the fact that I. had not fulfilled D.'s request, which the latter had previously provided. On this basis, there have been repeated quarrels between them. One day, D., being drunk, met I. in the courtyard of his house. Upon returning home, D. took a pistol, went outside and shot at I., the latter died on the spot.;      

2) murder on the basis of a quarrel, or in a fight. In such a murder, there is usually no premeditated intent to cause death to the victim. The motive can be very different (envy, malice, etc.). For example, P. drank alcohol with E.'s ex-spouse, D. was also there. During the feast, there was a quarrel between the former spouses, P., being in a hostile relationship with E., inflicted a knife wound in the chest area with a kitchen knife in order to intentionally kill him. cells on the left, victim E. died on the spot from his injuries.;      

3) murder out of jealousy. This type is a complex of experiences with a real or suspected betrayal of a loved one and is characterized by a complex psychological structure, emotional reactions and states (envy, hatred, anxiety, anger, despair, thirst for revenge, passion, etc.), painful doubts, complex manifestations in the intellectual and volitional spheres, a variety of behaviors, often socially dangerous, including murder;      

4) out of cowardice, out of compassion for the terminally ill, or with his consent. In other words, according to Part 1 of Article 96 of the Criminal Code of the Republic of Kazakhstan, murders are qualified without mitigating and aggravating circumstances specified in the criminal law.      

The subject of the murder (Article 96 of the Criminal Code) may be a sane individual who has reached the age of 14. For other crimes against life, criminal liability begins at the age of sixteen.      

The murders provided for in Part 2 of Article 96 of the Criminal Code are considered more socially dangerous crimes and more severe penalties are provided for their commission. A qualified murder is usually called a murder committed in the presence of at least one of the aggravating circumstances (qualifying signs) listed in Part 2 of Article 96 of the Criminal Code. The location of the qualifying features makes practical sense, since it facilitates the process of qualifying a specific murder under Part 2 of Article 96 of the Criminal Code.      

In general, the system of qualifying signs of murder in the Criminal Code of the Republic of Kazakhstan is exhaustive. The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the qualification of certain crimes against human life and health" dated May 11, 2007 is of crucial importance for distinguishing certain types of murders.      

Murder of two or more persons (paragraph "a" of Part 2 of Article 96 of the Criminal Code)      The murder of two or more persons is a single crime and is recognized as such when the act is committed by one action or several actions in a short period of time and indicates a single intention of the perpetrator to cause death to several persons.      

If the perpetrator's intent is to kill two or more persons, when the result of the criminal intent is the death of several persons due to circumstances beyond the control of the subject of the crime, the murder of one and the attempted murder of another person cannot be considered as a completed crime - the murder of two persons. In such cases, the actions of the perpetrator of an unfinished murder are subject to qualification under Part 3 of art. 24 and paragraph "a" of Part 2 of art. 96 of the Criminal Code, and the completed murder - under Part 1 or part 2 of art. 96 of the Criminal Code, depending on the presence of qualifying features. At the same time, the sequence of actions of the perpetrator in the simultaneous murder of one person and the attempted murder of another does not matter for such a qualification.      

If, when committing the murder of several persons, the intent of the co-perpetrators of the crime was aimed at taking the lives of several people and for its implementation they distributed roles among themselves, as a result of which each participant in the crime directly participated in taking the life of only one person, then the actions of each of them are also subject to qualification under paragraph "a" of Part 2 of art. 96 of the Criminal Code.      

When two or more people are killed at the same time, a combination of different motives is not excluded, for example, the simultaneous murder of an ex-wife motivated by jealousy and a random eyewitness in order to conceal the crime. If one of the motives is provided for in Part 2 of Article 96 of the Criminal Code, this should be reflected in the qualification. In cases where the intent to kill another person in order to conceal a previously committed murder arose after the commission of the first crime, the act as a whole cannot qualify as the murder of two persons. Each of the crimes committed requires independent qualification.      

The murder of two persons cannot be qualified under paragraph (a) of Part 2 of Article 96 of the Criminal Code if one of them was committed in a state of intense mental agitation or when exceeding the limits of necessary defense.      

The actions of the perpetrator, who simultaneously committed the murder of one person and the reckless murder of another, do not contain the elements of the crime in question and should be qualified as a set of crimes: murder and causing death by negligence.      

If the murder of two or more persons was committed in a manner dangerous to the lives of many people, the deed should be qualified according to paragraphs "a" and "e" of Part 2 of art. 96 of the Criminal Code.      

The murder of two persons cannot be qualified under paragraph (a) of Part 2 of Article 96 of the Criminal Code if responsibility for one of them is provided for by the relevant part of Article 96 of the Criminal Code, and for the other by Articles 97, 98, 99 or Article 100 of the Criminal Code. In such cases, each crime is subject to qualification independently according to the relevant norm of the criminal law.      

Murder of a person or his relatives in connection with the performance of official activities by this person or the performance of professional or official duties (paragraph "b" of part 2 of Article 96 of the Criminal Code)      

This type of murder poses an increased danger, since it encroaches not only on the victim's life, but also on another object: public relations, which provide a person with the opportunity to carry out his official activities or fulfill a professional or public duty.      

Victims of this type of crime may be citizens engaged in official activities (officials or other persons), as well as those performing professional or public duties, or their relatives. In this type of murder, the perpetrator acts with the aim of obstructing the lawful activities of the victim in carrying out official activities or fulfilling professional or public duties, or out of revenge for such activities. For example, the murder of a person who detained him by a poacher, the murder of a witness for testifying during an investigation or in court.      

Responsibility for murder under this paragraph of Part 2 of Article 96 of the Criminal Code comes regardless of when the actions that gave rise to the murder were committed. It is not required that the murder be committed precisely at the moment when the victim is performing his official duties or fulfilling a professional or public duty.      

The actions of the perpetrator are qualified under this paragraph only if the murder was committed in connection with the victim himself (but not by other persons, for example, his relatives) carrying out official activities or fulfilling his professional or public duty.      

When qualifying murder under paragraph "b" of Part 2 of Article 96 of the Criminal Code, it is necessary to find out which lawful actions of the victim, related to the exercise of his official activity or the performance of his professional or public duty, prompted the perpetrator to commit his murder or the murder of his loved ones, since the prerequisite for such qualification is the intention of the perpetrator that he encroaches on the life of this person precisely in connection with these circumstances.      

At the same time, the performance of official activities should be understood as the activities of a person within the scope of his official duties, and the performance of a public duty should be understood as the exercise by any citizens of both specially assigned public duties and the commission of any other actions in the interests of society or individuals (for example, the suppression of offenses, reporting an impending or committed crime, giving testimony, etc.). L. was found guilty of murder committed in connection with the victim's performance of a public duty under the following circumstances.. At the gala, L., being drunk, committed hooligan acts, went up on stage and began kicking the drum. The orchestra member made a remark to L. and asked to leave the stage. However, the latter continued his hooligan actions in the dressing room. The guard, K., warned L. that he would take him to the police station. L., remaining dissatisfied with this remark, threatened him with violence, and then attacked him, knocked him down and began kicking him on the head and other parts of the body. K. died from his injuries.      

The fulfillment of a professional duty should be understood as the commission by a person of actions related to a particular profession (for example, the artist's depiction of sketches, portraits, caricatures). In cases where the murder of the victim is committed in connection with the illegal official activity of the victim, the qualification of the act under paragraph "b" of part 2 of Article 96 of the Criminal Code is excluded.      

To qualify a murder as committed in connection with the victim's professional activity, official or public duty, it does not matter whether the murder was committed during the victim's actual performance of the above actions or at another time.      

The temporary gap between the performance of an official activity or the performance of a professional or public duty by the victim and his murder does not matter, because the motive of revenge for the performance of a public duty or official activity can be carried out much later than the performance of such a duty.      

The murder of a person who did not actually administer justice or investigate a case, but presented himself as guilty and performed actions aimed at protecting public order, should be qualified under paragraph "b" of Part 2 of Article 96 of the Criminal Code.      

The criminal law protects not only persons engaged in official activities or performing professional or public duties, but also their loved ones.      

The term "relatives" specified in paragraph "b" of part 2 of Article 96 of the Criminal Code includes not only close relatives specified in paragraph 24 of Article 7 of the Criminal Procedure Code, but also other persons who are valued by a person performing his official or public duty. It is necessary to establish whether the perpetrator was knowingly aware of their close relationship. The murder of loved ones is committed precisely in connection with the performance of official activities or the fulfillment of a professional or public duty to the victim in order to force him to abandon his activities or out of revenge for such activities.    

Murder of a person who is obviously helpless for the perpetrator, as well as involving kidnapping or hostage-taking (paragraph "b" of Part 2 of Article 96 of the Criminal Code)      

The increase in cases of kidnapping and hostage-taking, the overestimation by society of the facts of encroachment on a person in a helpless state, served as the basis for the inclusion of a new feature in the Criminal Code of the Republic of Kazakhstan among the circumstances qualifying murder. In one point, two aggravating circumstances are combined here: the first characterizes the victim, and the second - first of all, the peculiarity of the method of action.      

Helplessness means that the victim, due to certain physiological or other reasons (young age, old age, illness, physical disabilities, blindness, deafness, lack of arms, legs, etc.), is unable to effectively resist the offender. This type of murder should include the murder of a person who is in a state of sleep or severe intoxication, as well as unconscious for other reasons. In this case, the helpless state of the victim must be known to the perpetrator.      

Until recently, an analysis of judicial and investigative practice showed that the Supreme Court of the Republic of Kazakhstan did not recognize sleep as a helpless state, due to the fact that sleep, in their opinion, is a physiological state of a person in which he does not lose the opportunity to resist the guilty person. So, friends from work, L., D., and S., drank alcoholic beverages in the latter's house. While drinking alcohol, L. and D. had a verbal quarrel, which ended with L. getting up and going into the bedroom. After some time, D. came into the bedroom and, seeing that L. was asleep, committed his murder.       By the authorities of the preliminary investigation and the court of first and second instance, D.'s actions were qualified as murder committed in a helpless state under paragraph "b" of part 2 of Article 96 of the Criminal Code. However, the Supreme Court of the Republic of Kazakhstan did not agree with this qualification and reclassified the murder committed by D. 96 of the Criminal Code, not recognizing sleep as a helpless condition.      

It was impossible to agree with such a conclusion of the Supreme Court of the Republic of Kazakhstan. The helpless state of the victim is an objective category. This condition exists independently of the victim's awareness of it.      

Therefore, it should be recognized as a murder committed in a helpless state if the victim was in a state of sleep or heavy intoxication.      

It is encouraging to note that the Supreme Court of the Republic of Kazakhstan has changed its position on this issue in the right direction. Thus, in the Regulatory Decree of the Supreme Court "On the qualification of certain crimes against human life and health" dated May 11, 2007, which clarified that "the murder of a sleeping person, as well as a person who is in a helpless state due to severe alcohol or drug intoxication or for other reasons, should also be qualified under paragraph. "in Part 2 of Article 96 of the Criminal Code.      

Finding the victim in a helpless state at the time of causing his death should be carefully checked and evaluated by the court. It should be borne in mind that the young or elderly age of the victim, his being in a state of intoxication in themselves may not in all cases indicate his helpless state, therefore, these circumstances must be assessed taking into account the specific circumstances of the case (for example, when the victim actively resisted the attacker, causing him injuries in response, etc.).      

To qualify murder under paragraph "b" of Part 2 of Article 96 of the Criminal Code, it is necessary that the victim be in a helpless state at the time of the commission of the culpable acts related to causing his death.     

At the same time, for such a qualification of murder, it does not matter whether the victim himself brought himself into a helpless state (was injured in a fall on the street, consumed alcohol, drugs, etc.) or whether his condition occurred as a result of the actions of others.      

Neither minors nor old age by themselves exclude that the victim may not be helpless at all if, for example, he is well armed and skillfully handles weapons. In addition, old age, unlike underage age, does not have a clear regulatory boundary. Judicial practice has difficulties in the question of who is considered "elderly". Obviously, this is a matter of fact. With an equal number of years spent, one person becomes helpless due to age, while the other does not. This also applies to a disease that is not identical to a helpless condition.      

From the murder of a person in a helpless state, situations should be distinguished when the victim is unable to defend himself for other reasons: the suddenness of the attack, a hidden or insidious way of taking his life. Examples include a sniper's shot, an ambush, an unexpected stab in the back, the use of an explosive device, food poisoning, etc.      

The issue of qualifying the murder of a person who found himself in a helpless state as a result of the actions of the perpetrator was also difficult for practice. According to the meaning of the law, a person must be in a helpless state before being attacked. If the victim was rendered helpless by the perpetrator in the process of carrying out the intent to kill (by wounding, binding, luring to a secluded place, etc.), then paragraph "b" of Part 2 of Article 96 of the Criminal Code should not be applied. For example, the use of the victim's helpless state by the perpetrator as a qualifying sign of murder should be considered erroneous in the case when the perpetrator, wishing the victim dead, began to strangle her with his hands, and after losing consciousness stabbed her several times in the heart. In this case, it is necessary to qualify the actions of the perpetrator not according to paragraph "b" of Part 2 of Article 96 of the Criminal Code, but according to part 1 of Article 96 of the Criminal Code (if there are no other qualifying signs provided for in Part 2 of Article 96 of the Criminal Code) on the grounds that the victim was brought to a helpless state by the perpetrator in the process of depriving her of her life.      

Paragraph 7 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the qualification of certain crimes against human life and health" dated May 11, 2007 states that "if the victim's helpless condition is associated with the actions of the perpetrator (giving sleeping pills, drugs, alcohol, binding, striking, causing bodily injury resulting in loss of consciousness), directly for the purpose of carrying out the intent to cause death before the deprivation of life or in the process of deprivation of life, such actions that characterize the objective side of the crime, It should be regarded as a method of murder that cannot be qualified as the murder of a helpless person."      

Murder involving kidnapping or hostage-taking should be classified according to the totality of the crimes provided for in paragraph "b" of Part 2 of Article 96 and under Articles 125 or 234 of the Criminal Code, since these crimes have an independent composition.      

It should be borne in mind that when qualifying a murder involving kidnapping or hostage-taking, responsibility under paragraph "b" of Part 2 of Article 96 of the Criminal Code occurs not only when the murder of the abducted person or hostage is committed, but also in cases where murder is committed in connection with the kidnapping or hostage-taking. other persons. It is important to prove that the perpetrator's intent encompassed causing death to the victim. If it is not possible to prove intent to murder, then in some cases the actions of the perpetrator should be qualified under Part 3 of Article 125 of the Criminal Code and art. 234 of the Criminal Code, respectively (the subjective side will be characterized by a double form of guilt - intent aimed at capture or abduction, and negligence in relation to the death of the victim).      

The paragraph in question of Part 2 of Article 96 of the Criminal Code applies regardless of the moment at which the victim was deprived of his life - in the process of his abduction (capture) or after a certain time.      

Murder of a woman who is obviously pregnant for the perpetrator (paragraph "d" of part 2 of Article 96 of the Criminal Code)      Responsibility for this type of murder is increasing, as it poses an increased social danger due to the fact that the perpetrator takes the life not only of a woman, but also of her fetus - the embryo of a future human life.      

When qualifying a murder under paragraph "d" of Part 2 of Article 96 of the Criminal Code, it is necessary to establish that the perpetrator was aware of the victim's pregnancy at the time of the murder. At the same time, the duration of pregnancy, the condition of the victim due to pregnancy registered in the appropriate medical institution, the viability of the fetus, etc., does not matter for qualification.      

When qualifying a murder under paragraph "d" of Part 2 of Article 96 of the Criminal Code, it is necessary to establish that the perpetrator was aware of the victim's pregnancy at the time of the murder. At the same time, the duration of pregnancy, the condition of the victim due to pregnancy registered in the appropriate medical institution, the viability of the fetus, etc., does not matter for qualification.      

The actions of the perpetrator are subject to qualification in the same way in cases where the motive for the murder of a woman was directly information about her pregnancy and the perpetrator believed that he was committing the murder of a pregnant woman, regardless of the fact that the victim was not actually pregnant. The awareness of the perpetrator may be based on the victim's external data or her message, or on the basis of familiarization with medical documents. In any case, information about the state of pregnancy must be reliable. A person who did not know about the victim's pregnancy is not criminally liable under this paragraph. It also has no legal significance for qualification under this item whether or not the fetus died as a result of an attempt on the life of a pregnant woman.      

In cases where the perpetrator commits murder, mistakenly believing that the victim is pregnant, the deed should be qualified as a combination of two crimes - the attempted murder of a woman who is obviously pregnant for the perpetrator, and the completed simple or otherwise aggravated murder. The same qualification should be applied in case of an error in the identity of the victim (instead of a pregnant woman, the perpetrator mistakenly kills another who is not in such a state).      The murder of a woman who is pregnant can be committed either with direct intent in relation to the death of the victim, or with indirect Motives for the murder may be different and do not matter for qualification. For example, a person who killed a pregnant woman out of jealousy is liable under paragraph "d" of Part 2 of Article 96 of the Criminal Code.    

Murder committed with extreme cruelty (paragraph "d" of part 2 of Article 96 of the Criminal Code)      

According to paragraph "g" of Part 2 of Article 96 of the Criminal Code, murder is subject to qualification, in which the perpetrator showed special cruelty related to both the method of murder and other circumstances.      The deliberate infliction of death on the victim with special cruelty provides for special, "inhuman" cruelty, a manifestation of exceptional ruthlessness, sadism.      The following circumstances may indicate particular cruelty::    

- method of murder (infliction of a large number of injuries to the victim, instillation, deprivation of water, food, use of a painfully active poison, acid, etc.);      

- manifestation of sadism before taking life or in the process of committing murder (use of torture, torture, mockery of the victim);      

- moral infliction of suffering on the victim's relatives, in whose presence the murder is committed.      When assessing the circumstances concerning the method of causing death, it should be borne in mind that with special cruelty to the victim of a crime, the perpetrator intentionally commits actions that cause the victim special physical or moral torment and suffering. There is a sign of special cruelty, in particular, in cases when, before committing a murder or in the process of committing it, the victim was tortured, tortured or mocked, or when the murder was committed in a way that is obviously associated with causing the victim special torment and suffering (inflicting a large number of wounds to the victim, using particularly painful poisoning, burning alive, leaving in the cold without warm clothes, prolonged deprivation of a person without food or water in order to cause his death, etc.).      

The multiplicity of wounds inflicted during the commission of a murder does not in itself constitute grounds for qualifying the act under paragraph "g" of Part 2 of Article 96 of the Criminal Code, unless it is established that the perpetrator's intent was to inflict special torment and suffering on the victim. The nature and severity of the injuries inflicted does not matter for the recognition of a murder committed with particular cruelty.      

Murder committed with extreme cruelty should be recognized as murder, when the perpetrator inflicts injuries with the aim of causing death to the victim and finally douses the victim with gasoline and sets him on fire, after which death occurs.      

The concept of special cruelty is connected both by the method of murder and by other circumstances indicating the manifestation of special cruelty by the perpetrator. F., P., and S. took the victim to the forest, where F. showed her a knife, and P. announced that she would be killed. After that, the victim was tied up with a rope. By the light of lighted candles, P. injected the victim with relanium intravenously, F. dug a hole and, having untied the victim, led her to the pit. The victim asked not to kill her, promised not to report her to the police, but P. declared that "she cannot be left alive." He led the victim to the pit and stabbed her in the chest, aiming at her heart. After being wounded, the victim tried to escape, but F. caught up with her and led her back to the pit. The victim again asked not to kill her, but P. demanded to "finish off" the victim, but F. He refused. Then P. gave S. a shovel, and the latter inflicted several blows on the victim's head. Then P. demanded that the victim lay down in the pit, and when she had done what was required, she struck her several times on the head and neck with the tip of a shovel, causing the victim to die.      

Special cruelty can also be expressed in the commission of a murder in the presence of persons close to the victim. Not only persons related to the victim can be recognized as close, but also other persons who, in connection with the established relationship with the victim, are such (spouses who are not legally married, the bride and groom, guardians, trustees and their wards, etc.), whom the victim values. In these cases, the subjective attitude of the perpetrator is characterized by direct intent aimed not only at depriving the victim of his life, but also at causing special torment and suffering to his loved ones, who are eyewitnesses of the very process of deprivation of life." In this case, it is necessary to establish not only the presence of persons close to the victim during the murder, but also the awareness of the perpetrator that he commits a crime in their presence.      

In such cases, when qualifying a murder on the basis of its commission in the presence of persons close to the victim, it is necessary to establish not only the fact of their presence during the commission of his murder, but also the awareness of the perpetrator that he commits a crime in their presence, and to establish his intention to cause them special torment and suffering.      

The alternate killing of persons related to each other or in close relations in the presence of each other should also be qualified as committed with special cruelty, since before death, each victim, in whose presence his relatives were killed, suffered special torments and sufferings. So, B., returning home drunk, where his wife, as well as his son and daughter-in-law lived with him, there was a conflict between B. and the latter, during which B., having a clear physical advantage, inflicted traumatic brain injuries on his daughter-in-law and son, after which they could not actually offer active resistance and to pose a threat to the culprit B. Despite this, B., going to the garden and taking a metal pin from there, struck his son and daughter-in-law several blows to vital organs, after which the latter died on the spot. Apart from inflicting a large number of bodily injuries, which caused pain and suffering to the victims, B.'s murder is evidenced by the fact that he committed the murder in the presence of his mother, as well as persons close to each other - husband and wife.      

A murder committed even in the presence of the victim's relatives, but who are in hostile or hostile relations with him, who therefore did not suffer special suffering from the crime, cannot be qualified under paragraph "d" of Part 2 of Article 96 of the Criminal Code.      

When death is inflicted with extreme cruelty, the perpetrator must be aware of the particularly cruel nature of the act, as well as willing or deliberately allowing just such a nature of murder.      

Special cruelty is expressed not only in objective actions, but also in the mental attitude of the perpetrator. But the concept of "special cruelty" is not medical, but legal. The question of the presence or absence of this qualifying feature of murder is decided by investigative or judicial authorities in accordance with the norms of morality and morality established in a civilized society. The competence of medical experts includes deciding whether the victim experienced special suffering before death with a specific method of murder. It should be noted that the destruction of a corpse or its dismemberment should not always be considered as a mockery of a corpse and a manifestation of special cruelty. If these actions were committed with the aim of concealing the murder, as well as murder for the purpose of eating the victim's meat (cannibalism) do not constitute a sign of special cruelty.      

The motives of special cruelty can be different: anger, jealousy, revenge, greed, etc. They do not affect the qualification of murder under paragraph "d" of part 2 of Article 96 of the Criminal Code.      

Murder can be qualified under paragraph "d" of Part 2 of Article 96 of the Criminal Code not only in the case when the perpetrator specifically sought to show special cruelty, but also when he was aware of the special torment for the victim of this method of deprivation of life and deliberately went for it.      

Disfiguring a corpse or abusing it after committing a murder (except in cases of dismemberment in order to conceal it) should be qualified independently under the relevant part of art. 275 of the Criminal Code, and what was done as a whole under the totality of crimes, while qualifying the same actions under paragraph "d" of Part 2 of art. 96 of the Criminal Code is not required.      

Murder committed in a manner dangerous to the lives of many people (paragraph "e" of part 2 of Article 96 of the Criminal Code).      

To qualify premeditated murder as committed in a manner dangerous to the lives of many people, it must be established that, while carrying out the intent to kill a certain person(s), the perpetrator was aware that he was using a method that posed a real danger to the lives and health of many (at least two) other people. At the same time, to qualify premeditated murder under paragraph "e" of Part 2 of art. 96 of the Criminal Code is sufficient for the fact that the chosen method of murder in itself is really dangerous for the lives of many people, whose murder was not covered by the perpetrator's intent, whether death or harm to the health of the endangered persons and their number were caused by this method of murder.      

Therefore, the method of murder itself is important - it is generally dangerous, i.e. in most cases, the use of such a method of causing death (by arson, explosion, firing bursts of automatic weapons into a crowd, flooding, causing an accident in a car in which there were several people, etc.) is dangerous to the lives of many citizens.      

The same type of murder should include the deprivation of life with the help of various kinds of automatic devices that endanger the life of any person who may come into contact with such devices. First of all, this means that in the process of encroachment on life, such tools and means are used that pose a threat not only to a specific person) at least one more person. By itself, the use of means and tools in the process of killing one person in a deserted place, which can lead to the death of several persons, cannot mean the presence of the considered feature. When qualifying premeditated murder under paragraph "e" of Part 2 of Article 96 of the Criminal Code, the number of persons who were actually injured as a result of the method chosen by the perpetrator to kill the victim, in respect of whom the perpetrator had the intention to kill, does not matter. The actual deprivation of life of only one person does not exclude the application of paragraph "e" of Part 2 of Article 96 of the Criminal Code, if the method of murder itself was dangerous to the lives of several persons. The danger of causing death to others must be real, not imaginary, and exist in reality, not just assumed.      

In this type of murder, the perpetrator acts with direct intent to kill a certain person. The attitude of the perpetrator towards causing death or harm to the health of others is expressed in the form of indirect intent. If the murder of one person in a manner dangerous to the lives of other people has resulted in the death of several persons, the actions of the perpetrator should be qualified according to paragraphs "a", "e" of Part 2 of art. 96 of the Criminal Code. If these actions caused the death of one person and harm to another person, the qualification must be carried out according to the totality of articles of the Criminal Code under paragraph "e" of Part 2 of art. 96 of the Criminal Code and the relevant articles of the Criminal Code providing for liability for causing harm to health (Articles 103, 104, 105 of the Criminal Code).      

In the case when, during a murder in a way dangerous to the lives of many people, death was caused to another person, and not to the one whom the perpetrator wanted to kill, the deed should be qualified according to paragraph "e" of part 2 of Article 96 of the Criminal Code.      

However, if the murder is recognized as committed in a dangerous way. for many people, the preliminary investigation authorities and the courts do not always study in detail the circumstances of the case, and in particular, the situation in which this type of murder is committed. And, above all, the distance between the perpetrator and the victim during the murder is ignored, which leads to errors in qualification.      

In the evening, M., who was drunk, passed by one of the cafes in a rural area, where he heard obscene language about his drunken state from a group of young people. Deciding to take revenge on the most active of them, M., returned home, where, taking a gun, he returned to the cafe he had passed by earlier. Approaching a group of people at close range, he fired a shot at his main assailant at point-blank range.      

The preliminary investigation authorities and the courts of all instances qualified the act as murder committed in a manner dangerous to the lives of many people, i.e. according to paragraph "e" of Part 2 of Article 96 of the Criminal Code.      

I consider this decision of the law enforcement authorities to be erroneous and inconsistent with the current legislation, since the shot was fired so close that it did not pose a danger to those standing nearby, and this circumstance was not taken into account by the judicial and investigative authorities. The committed act should have been qualified under Part 1 of Article 96 of the Criminal Code.      

Murder committed by a group of persons, a group of persons by prior agreement, or an organized group (paragraph "g" of Part 2 of Article 96 of the Criminal Code).      

This murder is committed using various forms of complicity, the signs of which are disclosed in art. 31 of the Criminal Code. Like any complicity, it presupposes the deliberate participation of two or more persons in taking another person's life.      When committing a crime by several persons, it is necessary to establish the degree of participation of each of the accomplices, to find out whether there was a prior agreement between them, whether the roles were distributed, as well as all other circumstances on the basis of which it is possible to conclude that the act was committed by a group of persons, a group of persons by prior agreement or an organized group, to determine the degree of participation of each of those involved to hold individuals accountable, individually qualify their actions and impose fair punishment.      

In accordance with Part 1 of Article 28 of the Criminal Code, murder perpetrators should be recognized as persons who acted with a single intent to kill the victim, while themselves directly participating in the process of causing his death, or who committed a crime through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances provided for by the Criminal Code.. Their actions are subject to qualification under the relevant part of Article 96 of the Criminal Code and its paragraphs. The actions of other accomplices in the murder, which, in accordance with parts 2, 3, 4 of art. 31 of the Criminal Code are recognized as organizers, accomplices, instigators of a crime, if they were not simultaneously co-perpetrators of the crime, they must be qualified under the article providing responsibility for the crime committed, with reference to art. 28 of the Criminal Code.      

A murder should be recognized as committed by a group of persons if it was committed by the joint actions of two or more perpetrators of the crime who acted without prior agreement.      

If the accomplices of a crime agreed in advance to commit a crime together, and then each of them participated in its implementation, then the murder should be recognized as committed by a group of persons by prior agreement, regardless of whether they were all co-perpetrators or whether the form of complicity of any of them in the commission of the crime was different (organizers, instigators, accomplices) In other words, a murder is recognized as committed by a group of persons by prior agreement if it involved persons who had previously agreed to commit a crime together.      

A murder committed by a stable group of people who have previously joined together to commit one or more crimes should be recognized as committed by an organized group. At the same time, the organizer and head of an organized group is liable both for the creation of an organized criminal group and its leadership under the relevant part of Article 235 of the Criminal Code, and for premeditated murder under paragraph "g" of part 2 of Article 96 of the Criminal Code, in which he himself was directly involved or the commission of which by other members of the criminal group was covered by his intent.      

The actions of all members of an organized group who committed a murder, regardless of their role in the crime, should be qualified as co-execution without reference to art. 28 of the Criminal Code. Such a crime can be completely intentional, and premeditated. The exception is murder committed by a simple group without prior agreement. In this case, both direct and indirect intent is possible.      

It is necessary to distinguish the commission of murder by a group of persons, a group of persons by prior agreement from the commission of such a crime by members of an organized criminal group or gang. The norms of the criminal law, which establish responsibility for the organization and leadership of an organized criminal group, criminal community or gang, participation in them and in the attacks they commit, do not provide for responsibility for the possible consequences of criminal acts in the form of intentional unlawful infliction of death, therefore, the commission of premeditated murder by a member of an organized criminal group, criminal community or gang member, must be qualified according to the totality of crimes under paragraph "g" of Part 2 of Article 96 of the Criminal Code and the relevant parts, respectively, of Article 235 or art.  237 CC.      

Murder committed out of mercenary motives, as well as for hire, or involving robbery, extortion, or banditry (paragraph "h" of Part 2 of Article 96 of the Criminal Code)      

Selfish motives are characterized by the desire for illicit enrichment through the violation of other people's rights and interests. Murder committed for the purpose of obtaining material benefits for oneself or others (property rights, housing rights, remuneration from third parties, etc.) or in order to get rid of material costs (repayment of property, debt, payment of services, alimony payments, fulfillment of material obligations and payments, etc.) is subject to qualification under clause 96 of the Criminal Code as committed out of selfish motives.      

Murder for hire is a new type of murder for Kazakh criminal law. Previously, such actions were qualified either as murder for selfish motives, or as "simple" murder. Currently, this applies to "contract" murders. Although to a certain extent this is a complicated kind of mercenary murder - the perpetrator agrees for a certain reward received from the "customer" to take the life of another person.      

The actions of a person who committed murder for remuneration should also be qualified under paragraph "h" of Part 2 of Article 96 of the Criminal Code as murder for hire, and the actions of a person who organized this murder or persuaded the perpetrator to commit murder for remuneration, under parts 3 or 4 of Article 28 and paragraph "h" of part 2 of Article 96 of the Criminal Code.      

In cases where the customer, together with the killer, commits the murder of the victim, the act committed by him should additionally be qualified under paragraph "g" of part 2 of Article 96 of the Criminal Code as murder by a group of persons by prior agreement.      

If the "customer" of the murder is acting out of mercenary motives, then his actions, in my opinion, should be qualified collectively as the organizer of the mercenary murder and murder for hire.      

If self-interest was not the motive for premeditated murder, then the actions of the perpetrator related to the seizure of the victim's property after the murder should be qualified under articles of the Criminal Code providing for liability for crimes against other people's property, and murder - under Part 1 or the corresponding paragraph of Part 2 of Article 96 of the Criminal Code, depending on the presence of qualifying signs.      

Self-serving murder should not be confused with murder in connection with non-payment of a debt to the victim, refusal to return a borrowed thing, such a murder cannot be qualified as committed out of mercenary motives, since the perpetrator is aware that in this way he is unlikely to receive a debt, and even more so will have a material benefit. Such infliction of death is based not on greed, but on revenge, and the qualification under paragraph "h" of Part 2 of Article 96 of the Criminal Code was incorrect. Revenge murder should also be considered murder in connection with the victim's refusal to compensate the damage caused to the perpetrator. In such cases, qualification is carried out under Part 1 of Article 96 of the Criminal Code (if there are no other qualifying signs of Part 2 of Article 96 of the Criminal Code) and under Article 327 of the Criminal Code (if there are all signs of the composition of this crime).      

Today, there is a lot of debate among scientists and practitioners about the qualification of murders related to assault, extortion and banditry. The essence of the dispute lies in the fact that, according to some, the actions of the perpetrators of the robbery should be classified only under paragraph "z" of Part 2 of Article 96 of the Criminal Code as murder involving robbery, while others should be classified according to the totality of crimes under paragraphs "z" of Part 2 of Article 96 and Article 179 of the Criminal Code.. Judicial practice in the Republic is also ambiguous on this issue, which does not contribute to the uniform application of the law, which in turn undermines the authority of the judiciary.      

These disputes and errors of the courts are due to the fact that they do not take into account the provisions contained in art. 19 of the Criminal Code. We must finally understand to everyone that we do not have an objective imputation, but a subjective one. It is the direction of intent that determines the qualification of a crime. Therefore, if the perpetrator's intent was to commit a robbery and in the process of committing this crime and using violence against the victim, the perpetrator intentionally deprived him of his life, then the deed should be classified as a set of crimes under paragraph "h" of Part 2 of Article 96 of the Criminal Code and the corresponding part of Article 179 of the Criminal Code.      

Similarly, the actions of the perpetrator should be qualified if the murder was committed in the process of extortion or by gang members during an attack on citizens or organizations (paragraphs "h" of part 2 of Articles 96 and 181 or 237).      

Intentional unlawful infliction of death, committed after the end of a robbery or other crime, in order to conceal what was done, is subject to qualification according to the criminal law norm providing for responsibility for what was done and according to paragraph "k" of Part 2 of Article 96 of the Criminal Code as murder committed in order to conceal another crime or facilitate its commission.      

If the intent to seize property arose after the commission of premeditated murder and a selfish purpose was not its motive, then the actions of the perpetrator related to the seizure of the victim's property after depriving him of his life should be qualified under articles of the Criminal Code providing for liability for crimes against property, and murder under the relevant part of aIf the intent to seize property arose after the commission of premeditated murder and a selfish purpose was not its motive, then the actions of the perpetrator related to the seizure of the victim's properter depriving him of his life should be qualified under articles of the Criminal Code providing for liability for crimes against property, and murder under the relevant part of art. 96 of the Criminal Code, depending on the presence of qualifying signs, the premeditated murder of a victim in order to facilitate the subsequent commission of theft 96 of the Criminal Code, depending on the presence of qualifying signs, the premeditated murder of a victim in order to facilitate the subsequent commission of theft of other people's property or any other crime, and then the commission of these crimes after the murder, should be classified as a set of crimes: murder under paragraph "h" of Part 2 of Article 96 of the Criminal Code and another committed crime under the relevant article of the Criminal Code.    

Murder for hooligan motives (paragraph "i" of part 2 of Article 96 of the Criminal Code)      

According to paragraph "i" of Part 2 of Article 96 of the Criminal Code, murder committed on the basis of disrespect for society, gross violation of moral norms and morals, when the behavior of the perpetrator is an open challenge to public order and is conditioned by the desire to set oneself against others, to show one's sense of superiority or disdain for them, should be qualified.      

It is often committed without provocation or using an insignificant reason as an excuses often committed without provocation or using an insignificant reason as an excuse for murder. Hooligan murder is often a malicious reaction to a trivial matter as a pretext for murder (the victim did not give a cigarette, etc.). Hooligan motives are characterized by the uncertainty of criminal goals. Often such crimes are committed for no apparent reason (drunkenness, demonstration of audacity, outrage). Most often, this situation occurs when the perpetrator is intoxicated. The vast majority of murders motivated by hooliganism are committed by people who are drunk. However, the fact of intoxication itself is not proof of a hooligan motive for murder.      

It must be established that the perpetrator's intent encompassed an encroachment not only on life, but also on public order. Failure to establish motives for murder is not a motive for murder and is not a basis for qualifying a crime committed for hooligan motives.      

It is necessary to distinguish between premeditated murder for hooligan motives and murder committed on the basis of personal hostility, in a quarrel or in a fight. When resolving this necessary to distinguish between premeditated murder for hooligan motives and murder committed on the basis of personal hostility, in a quarrel or in a fight. When resolving this issue, it is necessary to take into account the relationship between the perpetrator and the victim, the reason and cause of the quarrel and fight, to identify who initiated the conflict, the activity and nature of both, and other circumstances. If the victim was the instigator of the quarrel or fight, as well as in cases where the reason for the conflict was his lawful behavior, the perpetrator cannot be held responsible for the murder of hooligan motives.      

An objective sign of the objective side is the crime scene and the publicity of the perpetrator's actions. However, it should be borne in mind that not every murder in a public place should be considered as a murder motivated by hooliganism. Murder, infliction of serious or moderate harm to health, committed out of hooligan motives,Murder, infliction of serious or moderate harm to health, committed out of hooligan motives, cannot be considered only in connection with their public place or in the presence of strangers, if the motive for their commission was, for example, jealousy, revenge, hostile relations and other motives arising from personal relationships.      

If, in addition to murder for hooligan motives, the perpetrator has committed a particularly audacious violation of public oIf, in addition to murder for hooligan motives, the perpetrator has committed a particularly audacious violation of public order, expressing clear disrespect for society, accompanied by the use of violence against citizens or the threat of its use, as well as the destruction or damage of other people's property, then what he has done should be qualified under clauses "i" of Part 2 of Articles 96 and 257 of the Criminal Code, providing for liability for hooliganism.      

If, when committing a premeditated murder of one person for hooligan motives, the perpetrIf, when committing a premeditated murder of one person for hooligan motives, the perpetrator intentionally caused serious or moderate harm to the health of other persons, then the totality of crimes under paragraphs "i" of Part 2 of Article 96 of the Criminal Code and the relevant articles of the Criminal Code providing for liability for harm to health.      

Murder committed in order to conceal another crime or facilitate its commission, as well as involving rape or violent acts of a sexual nature (paragraph "k" of Part 2 of Article 96 of the Criminal Code)      

Paragraph "k" of Part 2 of Article 96 of the Criminal Code provides for liability for two separate types of murder:

a) murder committed in order to conceal another crime or facilitate its commission;

b) murder involving rape or violent acts of a sexual nature.      

Responsibility for the first type is provided for when causing death in order to conceal another previously committed crime, or a crime that the perpetrator intends to commit in the future or facilitate its commission.      

By committing this crime, the perpetrator pursues the goal of completely hiding a previously committed crime or circumstances affecting the qualification and measure of punishment. In case of murder in order to facilitate the commission of another crime, the perpetrator may commit this act, both before the commission of the intended crime and in the process of its implementation.      

To qualify the actions of the perpetrator under paragraph "k" of Part 2 of Article 96 of the Criminal Code, it is not required that the perpetrator achieve his goal as a result of the murder - conceal another crime or facilitate its commission.    

Murder may be qualified as murder in order to conceal another crime or facilitate its commission if the motive for its commission was the desire to murder the victim to facilitate the commission of a new one or to conceal a crime previously committed by the subject or another person, which is known to this victim. At the same time, it does not matter whether a concealed crime was committed against the victim himself or against other persons, whether it belongs to the category of intentional, serious or reckless crimes, whether the perpetrator achieved his goal as a result of the murder. Murder in order to conceal another crime may occur not only when this crime has not yet been reported to the relevant authorities, or when the crime was reported but the perpetrator was not aware of it, but also in cases when the crime was reported to the relevant authorities and these authorities know the person who committed the crime. and the culprit is aware of this.      

If the perpetrator committed the murder of the victim, who was carrying out his professional activity or public or official duty, in order to facilitate the commission of another crime or with the aim of concealing it, the act should be qualified according to paragraphs "b" and "k" of Part 2 of art. 96 of the Criminal Code.      

Murder involving rape and violent acts of a sexual nature should be understood as the intentional infliction of death on the victim(s) committed during the attempted commission of these crimes or in the process of their commission.      

Unlawful intentional infliction of death to the victim (s) in the process of rape or during the commission of violent acts of a sexual nature or attempted commission of these crimes, or after the end of a violent sexual act, violent acts of a sexual nature, committed with the aim of concealing the deed, or motivated by revenge for resistance, the actions of the perpetrator should be qualified collectively according to" part 2 of Article 96 and the corresponding Articles 120 or 121 of the Criminal Code.      

In qualifying these actions of the perpetrators, the body conducting the criminal proceedings must indicate all the qualifying features provided for in paragraph "k" of Part 2 of Article 96 of the Criminal Code, as well as other paragraphs of Part 2 of Article 96 and the relevant parts of Articles 120 or 121 of the Criminal Code, respectively.      

Intentional infliction of rape or sexual violence, or attempted commission of these crimes, of minor or moderate harm to the health of the victims, as well as negligent infliction of serious harm to the health or death of the victims, is covered by the disposition of Articles 120, 121 of the Criminal Code, respectively, and does not require additional qualifications.      

The severity of the damage caused to health is established on the basis of an expert opinion obtained in accordance with the Rules for the organization of forensic medical examination approved by the Order of the Minister of Health of the Republic of Kazakhstan dated December 20, 2004 No. 875/1. V100006305_      

Murder motivated by social, national, racial, religious hatred or enmity or blood feud (paragraph "l" of part 2 of Article 96 of the Criminal Code).      

One of the guarantees of respect for the constitutional rights of citizens of Kazakhstan is the strengthening of criminal liability for criminal acts motivated by national, racial, religious hatred or enmity.      

The motive for this murder is the desire to emphasize the inferiority of the victim due to his belonging to a certain nationality, race, a particular religion or denomination. On the other hand, the exclusivity of a particular nationality, race, or religious denomination is emphasized. Criminal goals can be very different: from the aggravation of interethnic relations to revenge for apostasy. The perpetrator causes death to a person due to the fact that he belongs to a different nationality, race or religious denomination.      

The basis for the qualification of causing death on the basis of blood feud is a blood grudge. The subject of this type of crime can only be persons of those nationalities and nationalities who have preserved this custom. Blood feud in connection with the murder of a relative is a duty to avenge it and is passed down from generation to generation. These customs should be studied on a case-by-case basis in order to fully establish the circumstances of the murder. For example, a woman is beyond blood feud. If she commits murder, then the next of kin of the male sex is responsible for this murder. Taking a woman's life is considered unworthy behavior for a real man.      

When qualifying a murder under paragraph "l" of Part 2 of Article 96 of the Criminal Code, evidence must be established confirming that the perpetrator acted motivated by social, national, racial, religious hatred or enmity or on the basis of blood feud. In particular, it should be clarified whether the perpetrator belongs to the group of the population that recognizes the custom of blood feud, whether there was a murder of a person before the commission of this crime, whether the perpetrator was related to him, from what sources he became aware that the violent deprivation of his relative's life was committed by the victim or his relatives, etc. circumstances. Blood feud, as a motive for murder, which serves as the basis for qualifying murder on this qualifying basis, should be distinguished from murder, which was committed on the basis of personal hostility that arose in connection with the previous murder of a relative of the perpetrator.      

When qualifying a murder committed in connection with social, national, racial or religious hatred or enmity, it should be established that it was the victim's belonging to a certain part of the population and his religion that motivated the commission of the crime. At the same time, to qualify the murder under paragraph "l" of Part 2 of art. 96 of the Criminal Code is sufficient to establish that a hostile or hateful attitude is expressed towards a specific person who is a victim of a crime, or even towards an indefinite circle of people of a different faith, nationality, occupying a certain social position in society, to which the victim belonged.      

Murder committed for the purpose of using the victim's organs or tissues (paragraph "m" of part 2 of Article 96 of the Criminal Code)      

Scientific and technological progress in medicine (the possibility of transplanting organs or tissues from one person to another) has created a need for appropriate donor material, the cost and demand for which are very high. This can lead to the commission of murder in order to sell any organs or tissues of the victim for subsequent transplantation.      

When qualifying on this point, the determining role is played by the purpose of the murder. But the murder will be considered over regardless of whether the perpetrator used the victim's organs or tissues. It is widely believed in the specialized literature that the organs and tissues of the victim are used for transplantation as donor material. But the legislator is talking not only about transplantation, which, in accordance with paragraph 19 of the Law of the Republic of Kazakhstan "On Public Health Protection" dated July 7, 2006 (as last amended. It refers to the transplantation, engraftment of tissues and (or) organs (parts of organs) to another place in the body or into another organism, and generally to the use of organs and tissues for various purposes: industrial use, cannibalism, etc. K090000193      

The act is subject to qualification under paragraph "m" of Part 2 of Article 96 of the Criminal Code in cases where the perpetrator's intent is to kill the victim, and the motive for its commission is the purpose of using the organs or tissues of the murdered person. The purpose of using human tissues and organs means the intention to use them for medical purposes. At the same time, for the qualification of murder on this qualifying basis, it does not matter whether the organs and tissues of the murdered person were actually used after the murder.      

If the perpetrator was guided by selfish motives when committing this murder, then his actions must be qualified in the aggregate: paragraphs "h" and "m" of Part 2 of Article 96 of the Criminal Code. Given the special purpose outlined by the legislator, this murder can only be committed with direct (premeditated) intent.      It is necessary to distinguish premeditated murder committed for the purpose of using human organs and tissues from causing death by negligence when a person is forced to remove his organs and tissues or as a result of the forcible removal of organs and tissues from him, responsibility for which is provided for respectively in Part 3 of art. 103 and Part 3 of art. 113 of the Criminal Code.      

Murder committed by a person who had previously committed murder, with the exception of acts provided for in Articles 97-100 of the Criminal Code (paragraph "h" of Part 2 of Article 96 of the Criminal Code)      

The qualifying attribute - the commission of murder by a person who had previously committed murder, provided for in paragraph "h" of Part 2 of Article 96 of the Criminal Code, means unlawful deprivation of life not for the first time and is subject to imputation in cases where the perpetrator at the time of the crime has an outstanding criminal record under Article 96 of the Criminal Code, and should be taken into account only when qualifying actions persons to whom this feature directly applies.    

The organizers, instigators, and accomplices of a murder committed by the perpetrators under the specified qualifying sign, as well as under other aggravating circumstances provided for in Part 2 of Article 96 of the Criminal Code, are liable only in cases where they were aware of this in advance.      

If a person has committed several murders that are not united by a single intent, and has not been convicted of any of them, then all acts in accordance with the requirements of Part 5 of Article 11 of the Criminal Code are subject to qualification under paragraph "h" of Part 2 of Article 96 of the Criminal Code (if there are grounds and other relevant points). At the same time, a separate qualification of the first murder committed in part 2 or part 2 of Article 96 of the Criminal Code is not required.    

In the case of murder and attempted murder, each act is subject to independent qualification as a set of crimes.      

The crimes provided for in Parts 1 and 2 of art. 96 of the Criminal Code of the Republic of Kazakhstan are particularly serious crimes.

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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