Committing a criminal offense by negligence  

By the verdict of the Aktau Garrison Military Court dated January 18, 2017: T., who had no previous criminal record, was sentenced under Article 465 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 4 years in prison, to serve his sentence in a penal colony. On the basis of article 63 of the Criminal Code, T.'s sentence was suspended with the establishment of probation control. By the verdict of the court, T. was found guilty of violating the rules of driving and operating warships, which negligently caused the death of the victim D. By the resolution of the Judicial Board for Criminal Cases of the Military Court of the Republic of Kazakhstan dated February 24, 2017, the verdict of the court was changed. On the basis of paragraph 2) of part 3 of Article 2 of the Law "On Amnesty in connection with the twenty-fifth anniversary of Independence of the Republic of Kazakhstan" dated December 13, 2016, T. was released from serving his sentence. By the resolution of the Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan dated June 6, 2017, the resolution of the Judicial Board for Criminal Cases of the Military Court of the Republic of Kazakhstan dated February 24, 2017 in respect of T. It was canceled with the retention of the verdict of the Aktau garrison military court dated January 18, 2017 and the private decision of the judicial Board for Criminal Cases of the Military Court of the Republic of Kazakhstan dated February 24, 2017 addressed to the military prosecutor of the Aktau garrison unchanged. The Chairman of the Supreme Court in his submission indicates that the court unilaterally approached the investigation of the factual data in the case, taking into account only the accusing evidence and leaving the circumstances justifying the convicted T. without a legal assessment. The court's conclusions that T. showed criminal arrogance, are untenable. Due to the violations of uniformity in the interpretation and application by the courts of the norms of criminal law and procedure, he requests that the judicial acts that have entered into force in relation to T. be reviewed in cassation. Examination of the materials of this criminal case has shown that there is a discrepancy between the conclusions of the court and the factual circumstances of the case.

Committing a criminal offense by negligence  

According to article 24 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the court is obliged to take all measures provided by law for a comprehensive, complete and objective investigation of the circumstances necessary and sufficient for the proper resolution of the case. The circumstances of the case are subject to clarification, both incriminating and justifying the defendant, as well as mitigating and aggravating their responsibility and punishment. In accordance with article 388 of the CPC, the court's verdict must be lawful and justified. A sentence is recognized as lawful if it is passed in compliance with all the requirements of the law and on the basis of the law. A verdict is considered justified if it is made on the basis of a comprehensive and objective examination of the evidence presented to the court at a court hearing. However, the verdict against T. does not meet these requirements. Thus, according to the court verdict, the border guard ship Karaganda (hereinafter referred to as the ship) under the command of Senior Lieutenant T., while on combat duty to protect the State Border of the Republic of Kazakhstan in the Caspian Sea, on April 29, 2016 at 03:19 hours, at a distance of 6 miles (about 13 km) from the coastline, he discovered an Amur–type boat (hereinafter referred to as the boat) in the territorial waters of the Republic of Kazakhstan, motionless, in which there were residents of Aktau P., E. and D., who did not respond to the ship's requests. After that, T., steering the ship, began approaching the boat at 03:35 hours, grossly violating paragraphs 116, 133, 135 and 139 of the "Instructions for organizing shipboard service on ships of the Armed Forces, other troops and military formations of the Republic of Kazakhstan", paragraph 1 of part 6 of Article 72 of the Law of the Republic of Kazakhstan "On State Security on the border of the Republic of Kazakhstan" and paragraph 12 of Article 136 of the Charter of the Internal Service of the Armed Forces, Other troops and military formations of the Republic of Kazakhstan, allowed a ship to collide with a boat, as a result of which the boat sank, and the victim D. drowned with it. Meanwhile, the court's conclusions that T. had shown criminal arrogance are untenable. Thus, according to the provisions of part 2 of Article 21 of the Criminal Code, a criminal offense should be recognized as committed out of arrogance in cases where a person foresaw the possibility of socially dangerous consequences of his actions (inaction), but without sufficient grounds thoughtlessly counted on preventing these consequences. Arrogance presupposes a very distinct, but at the same time abstract possibility of harmful consequences, which, in the opinion of the subject, can be avoided.

With arrogance, the subject, anticipating the possibility of undesirable consequences, deliberately commits potentially dangerous acts, recklessly counting on the possibility of preventing a harmful result. As follows from the materials of the criminal case, T. from the moment of detection by radar communication (hereinafter referred to as radar) of the boat, on the contrary, acted according to the situation, according to official instructions. I have taken all necessary measures to avoid a collision with the specified boat. At his command, the witnesses are Foremen B. and M. We went to the bow of the ship to adjust and ensure the safety of the ship's movement as an inspection team. The ship's speed was reduced to the lowest revolutions, 6-7 knots, and began to approach an unidentified target, beeped over typhoon and loudspeaker communications. Further, at T.'s command, the ship under D.'s control began to maneuver according to the radio station messages and hand gestures sent by B. to the command post, until the discovery and rescue of witnesses E. and P. trapped in the water, these circumstances were also confirmed in their testimony by witnesses B., M., K. and D. Despite this, the court took a one-sided approach to the examination of factual data, taking into account only the accusing evidence and leaving the justifying circumstances without a legal assessment. According to paragraph 12 of the Supreme Court's normative resolution No. 4 of April 20, 2006 "On certain issues of evaluating evidence in criminal cases", a court verdict cannot be recognized as lawful if it is made only on the basis of the victim's testimony, which has not been analyzed, compared for reliability and not confirmed by other evidence. Conclusions of the court on the guilt of T. they are based on the testimony of witnesses E., P. and N. The court in its verdict indicated that the testimony of witnesses E., P. and N., together with other evidence, are objective, do not contradict the factual circumstances of the case and can be used as the basis for the prosecution of T. Meanwhile, their testimony cannot be considered indisputable evidence of T.'s guilt in violating the rules of navigation, since E. and P. with the victim D. are themselves violators of the regime of territorial waters (sea), illegally staying at night on a boat in the waters of the Caspian Sea, 13 km away. from the shore, without lighting lights and individual life-saving equipment (life jackets, lifebuoy), the ship's requests were not answered.

Committing a criminal offense by negligence  

Witness N. became aware of the circumstances of the incident only from the words of E. and P., which cannot be regarded as direct evidence. On the contrary, it follows from the testimony of specialist V. that T.'s actions as commander of the ship are legitimate. When approaching the boat, they took a number of necessary measures to avoid a collision with it. At the time of the discovery of the boat, he placed two petty officers in the bow of the ship for correction and safety of the ship's movement as an inspection team. Next, I turned on the border lights and reduced the speed of the border ship to safe, recommended knots in these situations. At the same time, the ship has the right to travel at night in the interests of the service with the running lights turned off, while the commander of the ship takes all necessary measures to prevent a collision with other vessels. Also, if the vessel of the violator is motionless and cannot maneuver independently, the commander of the ship has no right and should not make decisions on detaining violators leading to a collision with the vessel. Except in cases where it is impossible to use weapons and other military equipment. Meanwhile, such significant circumstances in the case as the weather conditions at sea and the fact that the event took place at night remained outside the court's attention. According to the testimony of witness K., there was a storm, the wind was north-westerly, the waves were strong, the height of the waves reached 0.25-0.30 meters, and the force was 2-3 points.

Under the circumstances described, the court's conclusions about T.'s guilt in violating navigation are not supported by a set of sufficient and reliable evidence. By virtue of paragraph 8) of part 3 of Article 77 of the Constitution of the Republic of Kazakhstan and part 3 of Article 19 of the CPC, irremediable doubts about the guilt of the suspect, the accused, the defendant are interpreted in their favor. In accordance with paragraph 18 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On judicial verdict", due to the presumption of innocence, a guilty verdict cannot be based on assumptions and must be supported by a sufficient set of reliable evidence, relevant and admissible evidence. Based on the information provided by the Judicial Board for Criminal Cases of the Supreme Court, judicial acts of local courts and the decision of the Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan dated June 6, 2017 in respect of T. were canceled. The criminal case under Article 465 of the Criminal Code was terminated on the basis of paragraph 2) of part 1 of Article 35 of the CPC due to the absence of elements of a criminal offense in T.'s actions. In accordance with the procedure provided for in Chapter 4 of the CPC, T. was recognized as having the right to rehabilitation and compensation for damage caused by illegal actions of bodies conducting criminal proceedings. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied. 

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