Criminal cases involving intentional infliction of serious harm to health
Thus, Part 1 of Article 106 of the Criminal Code provides for criminal liability for intentional serious harm to health without aggravating circumstances, and the direct object of this criminal offense is the health of another person. Harming one's own health cannot be considered a crime.
At the same time, it is necessary to pay attention to the fact that the disposition of this norm does not list signs of intentional infliction of serious harm to health, characterizing its objective side, unlike the old part 1 of Article 103 of the Criminal Code, since the contents of these signs are disclosed in the Rules of forensic medical determination of the severity of bodily injuries.
The objective side of grievous bodily harm is characterized by:
a) by action (in rare cases by inaction);
b) the occurrence of harm to human health and
c) the presence of a causal relationship between them.
The methods of causing harm to health can be very diverse, which does not affect qualifications, but must be taken into account by the court when sentencing.
The subjective side of the crime is characterized by direct or indirect intent. In case of unspecified intent (for example, when causing serious harm to health during a fight), responsibility arises depending on the actual consequences, when the person foresaw the possibility of serious harm to health, did not want to, but deliberately allowed them.
The subject of the crime is a person who has reached the age of 14.
In practice, there are violations of the requirements for the preparation of sentences of the following nature.
396 paragraphs 1, 4) of the CPC, the verdict is pronounced in the name of the Republic of Kazakhstan, the introductory part of the verdict indicates the surname, first name and patronymic (if any) of the defendant, the year, month, day and place of his birth, place of residence, place of work, occupation, education, marital status and other information. about the identity of the defendant, relevant to the case.
However, as follows from the extract of the verdict of the Alatau District Court of Almaty dated April 7, 2015 against Zhunusov Zh.Zh. the judge (M.T. Sholpankulov) did not indicate that the verdict was being passed on behalf of the Republic of Kazakhstan.
The introductory part of the verdict of the district court No. 2 of the Zharminsky district of the East Kazakhstan region dated April 1, 2015 in the case of Bakibayev R.K., who was tried under Article 106, Part 1 of the Criminal Code, does not reflect information about the defendant's place of work, education, marital status, only the defendant's full name, year, month, day and place of his birth are indicated. birth, nationality, criminal record, and place of residence.
Judges may also violate the criminal procedure law when drafting the descriptive and motivational part of the verdict.
Thus, according to Article 397 Part 1 of the CPC, the descriptive and motivational part of the conviction must contain a description of the criminal offense recognized by the court as proven, indicating the place, time, method of its commission, the form of guilt, motives and consequences of the criminal offense. The verdict provides evidence on which the court's conclusions regarding the defendant are based, and the reasons why the court rejected other evidence.
As examples of non-compliance with this provision of the law, we can cite the verdict of the Maktaaralsky District Court No.2 of the South Kazakhstan region dated April 10, 2015, by which Kamalov E.A. was found guilty under Article 106, part 2, paragraph 7) of the Criminal Code of intentionally causing serious harm to the health of the victim Makhambetov E. out of hooligan motives.
In the descriptive and motivational part of the sentence, the judge did not describe the criminal offense recognized by the court as proven, did not indicate the method of its commission, the motives and consequences of the criminal offense, namely, what bodily injuries were inflicted on the victim, the verdict only stated that he had suffered grievous bodily harm.
As follows from the descriptive and motivational part of the verdict of the Karkaralinsky District Court of the Karaganda region dated June 12, 2015 under Article 103, Part 1 of the Criminal Code against Akhmetov A.E., the latter at about 15:30 on April 3, 2015, being in the courtyard of house No. 10 on Zhanibekov St., Karkaralinsk, as a result of disagreements with his younger brother Akhmetov E. intentionally inflicted bodily injury on him with a knife.
At the same time, in the descriptive part of the verdict, the judge did not indicate who initiated the quarrel, at what point the defendant had the intention to harm the victim's health, where he took the weapon of the crime, what specific injuries were inflicted on the victim, and most importantly, the severity of the harm caused to him.
At the same time, in the descriptive and motivational part of this verdict, the judge recognized the unlawful behavior of the victim himself as mitigating circumstances.
The descriptive and motivational part of the verdict of the Saryagash district Court of South Kazakhstan region dated May 19, 2015 against Boranbaev RB, convicted under art.106, part 2, paragraph 7) of the Criminal Code, does not contain an indication of bodily injuries inflicted on the victim Kurbanbekov A.V.
The disposition of Part 1 of Article 106 of the Criminal Code provides for criminal liability for intentionally causing serious harm to health, without indicating their danger to the victim's life.
As indicated in paragraph 18 of the normative resolution of the Supreme Court of the Republic of Kazakhstan No. 19 dated August 15, 2002 "On the court verdict", citing evidence in the reasoning part of the verdict, the court should not limit itself to listing and citing their contents, it is obliged to make a comprehensive analysis of them, evaluate all evidence both incriminating and justifying the defendant, as confirming the conclusions of the court, as well as contradicting these conclusions. When presenting evidence, it is necessary to indicate which circumstances they confirm, which refute them, and why some evidence is recognized as reliable and others are rejected.
By virtue of art.627 Part 2 of the CPC, the descriptive and motivational part of the conviction rendered in the conciliation proceedings must contain a reference to the procedural agreement, and indicate the description of the criminal act of which the defendant was found guilty, the qualification of the deed, the motives for sentencing, the motives for deciding on a civil claim, the procedure and term of its execution, fate physical evidence and recovery of procedural costs.
In violation of the requirement of art.627 part 4 of the CPC, in the operative part of some sentences considered in the conciliation proceedings, judges explain to participants in the criminal process about the time limits for appealing and protesting a judicial act to a higher judicial board not from the date of receipt of a copy of the verdict, but from the date of its proclamation (the verdict of the Taranovsky District Court of Kostanay region dated April 21, 2015 against Tronina E.P., Altynsarinsky District Court of Kostanay region dated June 17, 2015 in respect of S.V. Fedorov., of the Uspensky District Court of the Pavlodar region dated March 18, 2015 in respect of I.V. Perikov).
At the same time, there is a different approach in assessing similar circumstances, which affects the legal qualification of the actions of the perpetrators.
As an example, two sentences passed by the courts of the South Kazakhstan region against Kamalov A. and the Almaty region against Bektibaev E. should be cited.
Thus, according to paragraph 4 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 3 dated January 12, 2009 "On judicial practice in cases of hooliganism" and paragraph 15 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 "On the qualification of certain crimes against human life and health" cannot be considered as committed with hooligan motives. infliction of serious harm to health, if the motive for their commission was, for example, hostile relations and other motives that arose on the basis of personal relationships, as well as illegal behavior of the victim., the one who initiated the quarrel or fight.
Based on these explanations, the qualification of the actions of Kamalov E.A., convicted by the Maktaaralsky District Court No. 2 of the South Kazakhstan region on April 10, 2015 under Article 106, part 2, paragraph 7) of the Criminal Code, seems controversial.
Kamalov E.A. was found guilty that on January 1, 2015, at about 5:30 p.m., in front of a sports hall located at the intersection of Kopzhasarova and Bekzhanova streets in Atakent village, Maktaarlsky district, he intentionally caused serious harm to the health of the victim Makhambetov E. out of hooligan motives.
Meanwhile, it follows from the testimony of the victim Makhambetov in court that when there was a quarrel between Kanaev A. and Myrzabek A., Kamalov approached them and began to calm them down. He, in turn, pushed Kamalov away and told him not to interfere. In response, Kamalov hit him with his head, after which he took him to the gym, where he used a technique to knock him down and hit him on the head, face and torso.
These statements were confirmed in court by witness A. Lesbaev, who clarified that after the incident on the street, the boys separated them and took them to the gym, where Kamalov knocked Makhambetov down and punched him, causing him to lose consciousness.
Thus, the eyewitness testimony indicates that Kamalov beat the victim Makhambetov on the basis of personal hostility towards him due to the fact that the latter pushed him away and told him not to interfere in Kanaev's conversation with Myrzabek, therefore, Kamalov did not have a hooligan motive when committing the crime, therefore it seems that his actions contain signs of a crime. 106, part 2, paragraph 7) of the Criminal Code, but Article 106, Part 1 of the Criminal Code - intentional infliction of serious harm to health.
Under similar circumstances, with reference to the regulatory decree of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of hooliganism", the Almaly District Court of Almaty on June 4, 2015 reclassified the actions of E.A. Bektibaev from Article 106, Part 2, paragraph 7) of the Criminal Code to Article 106, Part 1 of the Criminal Code.
Bektibaev E.A. was put on trial on charges of committing a crime under Article 106, part 2, paragraph 7) of the Criminal Code.
However, during the main trial, it was established that on February 5, 2015, at about 9:30 a.m. in the building of the Taraz Chemical Technology College, E.A. Bektibayev asked Temirbai A. for a piece of paper and because of this, a minor quarrel occurred between them. On the same day, Bektibayev, along with an acquaintance named "Zhuman", approached Temirbai A. and, during an argument with him, deliberately, with the aim of causing serious harm to health, stabbed Temirbai A. in the left thigh and left shoulder with a knife unidentified during the investigation.
As a result of the actions of Bektibaev E.A., serious harm was caused to Temirbai A.'s health.
In these circumstances, the reclassification of the actions of E.A. Bektibaev from Article 106, Part 2, paragraph 7) of the Criminal Code to Article 106, Part 1 of the Criminal Code seems justified.
As an example of intentional infliction of serious harm to health for hooligan motives, we can cite the criminal case against Boranbaev R., convicted by the Saryagash district Court of the South Kazakhstan region on May 19, 2015 under art.106 part 2 paragraph 7) of the Criminal Code.
As follows from the verdict of the court, on March 21, 2015, at about 23 o'clock near the shop in Akzhar village, Saryagash district, Boranbayev R. asked Kurbanbekov A. the time and, without receiving an answer, punched him in the stomach, causing serious harm to the victim's health.
In this case, Boranbayev used a minor reason to commit a crime, while showing clear disrespect for society and showing his contemptuous attitude towards others.
When distinguishing unlawful intentional infliction of serious harm to human health from other intentional crimes with similar consequences, courts usually proceed from the totality of all the circumstances of the crime committed, take into account, in particular, the relationship between the perpetrator and the victim, the method of commission and the instrument of the crime, the number, nature and localization of wounds and other bodily injuries, the reason for the termination of illegal actions by the subject of the crime, and etc., as well as the behavior of the person before and after the commission of the crime.
At the same time, the study of judicial acts shows certain difficulties in distinguishing between intentional infliction of serious harm to health that negligently resulted in the death of the victim from premeditated murder.
Thus, according to paragraph 30 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 1 dated May 11, 2007 "On the qualification of certain crimes against human life and health", it is necessary to distinguish unlawful intentional infliction of death on a person from other intentional crimes involving serious harm to health, resulting in death by negligence, to determine the direction of the perpetrator's intent, his subjective the attitude to the results of their actions is the death of the victim.
Determining the subjective side of the crime and the form of guilt, it is necessary to proceed from the totality of all the circumstances of the crime committed, taking into account, in particular, the nature of the relationship between the perpetrator and the victim, the method of commission and the instrument of the crime, the number, nature and localization of wounds and other bodily injuries, the reason for the termination of illegal actions by the subject of the crime, etc., as well as his behavior before and after when committing a crime, upon establishing that the perpetrator acted with direct or indirect intent, he was aware of the illegality of his actions., he foresaw the onset of a socially dangerous consequence in the form of human death and desired it (with direct intent) or deliberately allowed such an outcome of his actions and treated it indifferently (with indirect intent), the act is subject to qualification under the relevant part of art.96 of the Criminal Code (except in cases of causing death under the circumstances provided for in Articles 97-100 of the Criminal Code).
If it is established that the perpetrator, while committing an intentional crime, was aware of the illegality of his actions and foresaw the possibility of death of the victim, but his attitude to such a consequence is characterized by negligence, then the actions of the perpetrator are subject to qualification under Part 3 of Article 103 of the Criminal Code, which provides for liability for intentional infliction of serious harm to health, resulting in death by negligence.
By the verdict of the District Court No. 2 of the Ayyrtau district of the North Kazakhstan region dated June 30, 2015, M.Zhumatayev was sentenced to 8 years in prison under Article 106, Part 3 of the Criminal Code.
By the verdict of the court, he was found guilty of committing crimes in the following circumstances.
On May 9, 2015, at about 12 o'clock in the village of Ayyrtau in the North Kazakhstan region, Zhumatayev M.Zh. being in a state of drug intoxication, during an argument at home, he beat his roommate Sagandykova F.E., punched her twice in the face, when the latter fell to the floor. Zhumatayev M.Zh. with a plastic shovel, punched and kicked indiscriminately. to various parts of the victim's body, when Zhumatayev J.R., Omarova D.Sh. and Rashova Z.Zh., who were in the house, tried to stop the criminal actions of the defendant, the latter began to smash furniture in the house and threaten with a knife. Then, in order to clarify the relationship with the victim Sagandykova F.E., the defendant Zhumataev M.Zh. having taken from Zhumataev's father Zh.R. the keys to a VAZ-2106 car, state number 880 AWA 15, they drove to Lobanovo village, to the house of Rashova Z.Zh., where on the road between Zhumataev M.Zh. and Sagandykova F.E. a verbal exchange took place again the quarrel, during which Zhumataev M.Zh., being in the car, again began to inflict deliberate, indiscriminate punches on various parts of the victim's body Sagandykova F.E.
Arriving in the village of Lobanovo at about 19 o'clock, Zhumataev M.Zh. and Sagandykova F.E. went to the house of his sister Rashova Z.Zh., located at Stepnaya Street, 14, where a verbal quarrel again took place between them. During the quarrel, Zhumataev M.Zh. began intentionally inflicting multiple targeted punches with his fists, as well as kicks on vital organs, including the torso, upper and lower extremities of the victim, thereby causing pain and physical suffering to the victim by his actions.
After that, the defendant Zhumataev M.Zh. having made sure that Sagandykova F.E. was unable to provide him with any active resistance, he stopped his criminal actions and left the premises of the house. After a short time, the victim Sagandykova F.E. died as a result of her injuries. After that, Zhumataev M.J. brought the body of the deceased Sagandykova F.E. to the village of Ayyrtau.
The court of first instance, giving a legal assessment of the actions of the defendant Zhumatayev M.Zh., indicated in the verdict that, considering the question of the existence of intent by the defendant Zhumatayev M.Zh., the court proceeds from the totality of all the circumstances of the crime committed and takes into account, in particular, the number, nature and localization of the damage caused, which implies that the defendant's intent was to intentionally cause serious harm. to the health of the victim, F.E. Sagandykova, with particular cruelty.
At the same time, the court did not take into account that the number, nature and localization of the injuries caused do not indicate special cruelty, but the intention of the defendant Zhumataev M.Zh. to commit the murder of the victim Sagandykova F.E., because the defendant Zhumataev M.Zh. inflicting multiple blows on various parts of the victim's body Sagandykova F.E. knew and should have known from His wife may die on the spot, which actually happened.
Therefore, the actions of the defendant Zhumataev M.Zh. are considered to be the composition of a completed murder and there is no qualifying feature of Article 106 of the Criminal Code "special cruelty" in his actions.
In general, courts in the generalized category of cases impose fair punishments within the limits established by the sanction of this article, taking into account the provisions of the General Part of the Criminal Code in accordance with Section 4 of the Criminal Code, regulatory rulings of the Supreme Court of the Republic of Kazakhstan No. 1 dated April 30, 1999 "On the observance by courts of legality in sentencing", No. 15 dated October 19. 2001 "On Certain issues of Sentencing to imprisonment", No. 7 dated June 23, 2006 "On Judicial Practice of Assigning Types of correctional institutions to Persons, sentenced to imprisonment" and No. 8 of December 25, 2007 "On the application by courts of legislation on the recidivism of crimes."
Courts impose punishments based on the public danger of crimes, mitigating and aggravating circumstances, information about the identity of the convicted, as well as the opinions of the victims.
The courts, in respect of persons who committed crimes for the first time, had no previous convictions, fully admitted their guilt and repented of what they had done, and compensated for the harm caused by the crime, imposed an alternative punishment in the form of restriction of liberty with the motivation in the verdict of the decision.
Thus, according to paragraph 6 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 1 dated April 30, 1999 "On the observance by courts of legality in the imposition of criminal punishment", if the sanction of the law under which a person is found guilty provides for various (alternative) types of punishments, the issue of imposing a less severe one should be discussed.
In the vast majority of criminal cases considered under Article 106, Part 3 of the Criminal Code, the guilty persons are sentenced to real imprisonment.
According to art. 55 Part 4 of the Criminal Code, in the presence of exceptional circumstances related to the goals and motives of the act, the role of the perpetrator, his behavior during or after the commission of a criminal offense, and other circumstances that significantly reduce the degree of public danger of the act, as well as with active assistance in solving the crime, punishment may be imposed below the lowest limit provided for the relevant article of the Special Part of the Criminal Code of the Republic of Kazakhstan.
Civil lawsuits for moral and material damages
When considering criminal cases related to causing serious harm to health, judges consider civil claims for recovery of moral and material damage caused by a crime, citing the relevant motives and grounds for the decisions taken on the civil claim with reference to the norms of substantive and procedural laws, taking into account the requirements of art.170 CPC, regulatory decisions of the Supreme Court of the Republic of Kazakhstan No. 3 dated 21 June 2001 "On the Application by Courts of Legislation on compensation for moral damage," No. 1 dated June 20, 2005, "On the consideration of a Civil claim in criminal proceedings."
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