Committed hooliganism with a group of people using firearms

By the verdict of the specialized Inter-District Court for criminal cases of the Turkestan region dated February 4, 2019: D. previously, on February 12, 2014, he was sentenced to imprisonment for 6 years and 8 months with the third part of Article 103 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code), early release for 2 years and 7 months and 19 days, – 4 years of imprisonment under Paragraph 2) of the third part of Article 293 of the Criminal Code, 5 years of imprisonment with the fourth part of Article 287, 6 years of imprisonment with partial addition of punishments in accordance with the requirement of the third part of Article 58 of the criminal code. In accordance with the requirement of the first part of Article 60 of the criminal code, the court sentence of February 12, 2014 partially includes the unserved part of the sentence and is finally sentenced to 6 years and 6 months in prison. He is assigned to serve his sentence in the highest security institution of the Penal correction system. In accordance with the first part of Article 14 of the criminal code, recidivism of a crime is recognized in the act of D. 169,871. 4 tenge of procedural costs and 48,100 tenge of compulsory payment to the Victims ' Compensation Fund of the Republic of Kazakhstan were collected from D. in favor of the state. By the court verdict D. he was found guilty of conspiring with a group of people, using firearms, committing hooliganism, and conspiring with a group of people, illegally storing, transporting and carrying firearms. By the decision of the Judicial Board of the Turkestan Regional Court on criminal cases dated March 29, 2019, the sentence was canceled and a new sentence was adopted. By the verdict of the appellate court of March 29, 2019, D. was found guilty by the third part of Article 24, paragraph 7) of the second part of Article 99 of the criminal code and sentenced to 15 years in prison.  In accordance with the fourth part of Article 58, the first part of Article 60 of the criminal code, D. is finally sentenced to 16 years in prison.  He is assigned to serve his sentence in an emergency safe institution of the Penal correction system. In accordance with paragraph 2) of the second part of Article 14 of the Criminal Code, a dangerous repetition of a crime is recognized in the act of D. By the verdict of the appellate court, D. was found guilty of the presence of a group of persons who had conspired, the victim was found guilty of the deliberate attempt to kill S. Convicted D. in his petition, the appellate court board did not agree with the adopted judicial acts, re-categorized the criminal act with paragraph 2) of the third part of Article 293 of the criminal code, part four of Article 287, and asked for a mitigation of punishment, taking into account that he is the only breadwinner of the family, that is, the death of his wife, a minor daughter and elderly parents.

Committed hooliganism with a group of people using firearms

The judicial board considers the argument of the convicted D. that the court's conclusion about the attempt to kill the victim S. is not supported by the materials of the case. In accordance with paragraph 4) of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 1" on the qualification of certain criminal offenses against the life and health of a person", in addition to determining the stage of committing a criminal offense, it is necessary to take into account the form of guilt, determine and establish what the intention of the guilty is aimed at, what As it turned out from the case materials, the convicted D. On August 22, 2018, at about 10:00, his acquaintance A. received a car license plate number 814azb13 of the brand Vaz - 21099 in the new ownership. Until August 23, 2018, together with the person who identified his identity in the pre-trial investigation, the materials of the case against him were highlighted, the removal of the state number 814azb13 of the VAZ-21099 brand, the transfer to the court on the date of clarification of the investigation, the tax received its state number 082ehn13. At the same time, armed with a barrel and box number "108087" of the Model 16 caliber "B", which was not identified in the pre-trial investigation, a hunting rifle with a double smoothbore ear, a shotgun with a hand-cut barrel and 4 pieces of 16 caliber ammunition, he conspired with a person who was not identified in the pre-trial investigation, the materials of the case against him were highlighted, illegally appropriated, stored and transported them. I went to Saule akshamau, sosynshymkent, at about 16:00, repaired a Vaz-21099 car, and returned at about 23 am, on the road leading to Shymkent, when I reached the road bridge leading to Shymkent, his gray Volkswagen Polo car with state number 741zta13 "kys Keter". Angry at him, he went down to the back of the car to talk to him. However, the last car leaves without delivery. Further D. in a pre-trial investigation, the owner of a Volkswagen Polo car with state number 741ZTA13 with the identity of the person was caught up with a car under the control of S. in order to commit hooliganism with the use of firearms in relation to S., and demanded that he stop through a car light. Then, on the highway connecting the village of Akbulak with the Shymkent-Arys highway, they fired a shotgun at the right rear wheel of the car to stop the victim. The Victim S. in relation to him, strangers felt that with firearms they were threatening his life, health and property, and, despite the damage to the rear right wheel of his car, took the village of Akbulak in the direction and increased its speed. D. together with the person whose case materials were separated, the victim fired again from behind the car in which S. was sitting, turned back before reaching the village of Akbulak and left the scene.  That is, the convicted D. said: "I did not deliberately try to kill the victim S., my car was damaged, which I "squeezed" on the highway, drove to the side of the road and took out of repair, so S."I wanted to stop and pay for it."

However, because S. ran away without stopping, I could not catch up with him and shot him with a gun," the argument requires attention and due assessment. During the study of the case, it was established that the Appellate Judicial Board committed a violation of the law. In accordance with paragraph 3) of the first part of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan, the basis for Cassation review of judicial acts that have entered into legal force is improper application of the criminal law, which led to a misdirection of the actions of the convicted person allowed during the investigation or judicial review of the case. Because the conclusion of the court of Appeal that "the convicted D. changed the state mark of the car under his control, fired a shotgun twice, followed the victim's car with an unknown person from Shymkent to the village of Akbulak, Ordabasy District, shot twice in the car in which the victim was, but he turned around so that the residents of the village of Akbulak would not be seen, and he could not bring his crime to the end due to circumstances beyond his control" contradicts the case documents.  The Victim S. in his response during the pre-trial investigation, he indicated that on August 24, 2019, at 00:08 am, he was talking on a mobile phone, that is, when he turned from a turn at the entrance to the village of Akbulak, a Vaz-21099 car squeezed him, tried to stop him, fired two shots from behind his car, approached the village, turned off the lights and turned back. According to the conclusion of the forensic ballistic examination, the presented ammunition for smoothbore hunting rifles of 1 piece of gray metal is a factory-made splinter.

At the same time, the examination showed the State Mark 741zta13 "Volkswagen Polo" on the state mark of the artistic side, on the trunk upholstery and on the middle and lower left side of the artistic bumper. It is established that these damaged parts were formed in the process of double firing from smoothbore firearms from the back to the front of the car. The conclusion of the court of first instance that "in the event of the intention of the convicted D. to kill the victim S., he could have fired a gun, directed S. directly at him, causing injury to his health or shooting into the fuel tank of a car" is justified, fully supported by the evidence in the criminal case. As indicated in the examination, the shot damaged the state mark on the back of the car, the trunk lid and the middle and lower left side of the rear bumper. According to the evidence studied in the First Instance, convicted D. he had conspired with a group of people, illegally storing, transporting, transporting and carrying, and conspiring with a group of people, with the intention of supporting the shooting, threatening to use force on a citizen, the stranger Mulkin blurted out. In such a context of the case, the actions of the convicted person by the verdict of the court of first instance are correctly differentiated by Paragraph 2) of the third part of Article 293 of the criminal code, part four of Article 287. The punishment for the convicted person is imposed taking into account the nature of the committed criminal offense and the degree of danger to society, data related to the personality of the convicted person, aggravating and mitigating his criminal liability and punishment, including the circumstances specified in the petition. The convicted person is given a fair punishment in accordance with the requirements of Article 52 of the Criminal Code, which is sufficient for his correction, so there are no grounds for changing it. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan canceled the decision of the court of appeal of March 29, 2019 and the sentence of the court of First Instance of February 4, 2019 in relation to the convicted D. The petition of the convicted D. was partially satisfied. 

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