Criminal cases of crimes against the person - murder

        Of all crimes against the person, murder is the most serious crime, and in this regard, the criminal legislation of the Republic of Kazakhstan provides for the most severe punishment for murder.

This category of crimes requires the court to examine all the circumstances of the case with special care, completeness and comprehensiveness, since by finding a person guilty of premeditated murder or acquitting him, the court, and through it, the State, is fully responsible for the proper application of the law.

It should not be forgotten that the task of justice is to establish not only evidence of premeditated murder as an event of a crime, participation and guilt of a person being held criminally responsible, but also circumstances indicating the defendant's non-involvement in it.

Thus, recognizing a person guilty of murder and assigning punishment to him or acquitting him, the court is obliged to approach such a decision only if there is a sufficient set of reliable, acceptable and relevant evidence. Premeditated murder, as a criminally punishable act, has never lost its relevance, since human life is the most valuable and irreplaceable asset.

In addition, the relevance of this issue also lies in the fact that, according to the authors of the summary, courts do not always correctly apply legislation related to this category of cases and use a common practice when considering their consideration.

Such criminological characteristics show that mostly unemployed adult males under the age of 50, while under the influence of alcohol or drugs, are prone to committing premeditated murders without aggravating circumstances.

The correctness of the qualification and retraining of the criminal acts of the perpetrators

The study and analysis of judicial acts of the courts of the Republic of Kazakhstan has shown that some courts misunderstand the explanations contained in the normative resolutions 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", No. 2 dated May 11, 2007 "On the application of legislation on necessary defense", as a result, they make mistakes in the legal qualification of the criminal acts of the perpetrators.

Thus, the Specialized Interdistrict Criminal Court of the East Kazakhstan region, by a verdict dated June 15, 2015, B., born on 08/07/1979, was found guilty of committing a crime under Part 1 of Article 99 of the Criminal Code of the Republic of Kazakhstan to 8 years in prison.

According to the verdict, on 11.03.2015, in the evening, B. and his relative B. were drinking alcoholic beverages in the latter's apartment. During the drinking of alcoholic beverages, B. and B., who were intoxicated, had a verbal conflict that turned into a fight. During the fight, because of the hostile relations that had formed, B. had a criminal intent aimed at intentionally unlawfully causing the death of B. By carrying out his plan, B. Being in the bedroom, he deliberately, with considerable force, began to inflict multiple punches and kicks in the area of B.'s vital organs, namely in the area of the head and chest. From the blows received, B. fell to the floor in the passage between the bed and the window sill. Continuing to realize his criminal intent, B. took a large glass, and using it as a weapon of crime, deliberately, with considerable force, inflicted three blows on the lying B. in the area of vital organs – in the area of the face and head.

As a result of a closed craniocerebral injury and mechanical asphyxia from the closure of the respiratory tract with blood (hemoaspiration), the source of which was an open wound of the upper lip with a fracture of the bones of the nose, which caused serious harm to health on the grounds of danger to life, B. died at the scene of the crime.

The Court of first instance reasonably established that B.'s injuries, as well as B.'s, were sustained during a fight that arose between them after a verbal conflict.

The court was critical of the arguments of the defense and the defendant that B. had inflicted bodily injuries on B. in defense, that he had no intention of killing the latter, and therefore his actions should be reclassified under Article 102 of the Criminal Code as murder committed while exceeding the limits of necessary defense, and considered these arguments an attempt to lead the defendant away. from legal liability for a particularly serious crime committed.

In its verdict, the court of first instance explained in sufficient detail the inconsistency of the defense's arguments that B. inflicted bodily injuries on the victim while in a state of necessary defense, however, the defendant's argument that he did not want to cause B.'s death was not thoroughly investigated by the court. Meanwhile, it is in this part that there are grounds to question the correctness of the court's conclusions about the defendant's guilt in premeditated murder.

As follows from the conclusion of the CME No. 263 dated 13.03.2015, B.'s death occurred as a result of the closure of the respiratory tract with blood (hemoaspiration).

The source of bleeding (hemorrhage) into the respiratory tract is an open wound of the upper lip with a fracture of the bones of the nose.

In court, the expert testified that in the presence of the indicated mechanical asphyxia as a result of the closure of the respiratory tract with blood, saving B.'s life with timely medical care was unlikely. It was this part of the evidence that was not properly examined by the court.

In accordance with 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 the 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.

When determining the subjective side of a crime and the form of guilt, it is necessary to proceed from the totality of all the circumstances of the crime committed, take 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 after committing a crime.

The court did not establish all the circumstances of the crime, in particular, based on the opinion that premeditated murder had taken place, whether B. was convinced that he had achieved the desired result, whether he realized that as a result of his illegal actions the victim's death would occur. No proper assessment of his testimony has been given, however, it follows that after receiving his injuries, B. sat down at the scene of the fall, and he went to another room, where he fell asleep because he was very tired and drunk. I woke up in the morning, went to the store, bought a bottle of vodka, and when I came home and poured vodka into glasses, I went to wake B. up to make peace with him. At that moment, I found B. between the bed and the windowsill with no signs of life. Realizing that B. had died, he drank vodka and called his father, who was informed of the incident and asked to call the police."

Based on these statements, B. was alive by the time the beating stopped and nothing prevented the defendant from carrying out the alleged murder intent to the end. The above indicates that B. had negligent guilt in relation to the death of the victim. The argument that saving B.'s life with timely medical care was unlikely is not convincing in this case, since awareness of the inevitability of the victim's death requires special knowledge, which the court did not establish in the defendant B..

 

Another example: By the verdict of the Specialized Interdistrict Criminal Court of the Almaty region dated May 12, 2015, born on 08/25/1957, he was found guilty of committing a crime under art.99 Part 1 of the Criminal Code of the Republic of Kazakhstan and sentenced to 13 years in prison.

By the verdict of the court, he was found guilty of committing crimes in the following circumstances.

On March 3, 2015, at about 3 p.m., G. came to his neighbor T.'s house to talk.

After talking for a while around 4 p.m., G. was about to go home, at that time T. said: "Do you have vodka, will you drink?" G. agreed with T.'s suggestion and together they went to the defendant's house, where they began to consume alcoholic beverages in the kitchen. At about 6 p.m., the victim, T., became intoxicated, jealous of his wife, K., and began swearing at him. At this time, G. came out and went to his room to give food to the chickens. When in 10-15 minutes, he entered the kitchen located in the house, the victim T., using obscene language, swung at G. with an axe in his hand in order to harm his health. G. attacked him and a struggle ensued between them. G., being intoxicated, using his physical superiority, twisted T.'s arm and tore it out of the His hands are holding an axe. At this time, as a result of his dislike of T. U. G. there was an intention to kill the victim, carrying out his criminal intent, realizing that his actions were dangerous to the life of the victim and that as a result of them his death would occur, for the purpose of murder he inflicted multiple blows with an axe on the body, on vital organs and on the head, which caused his death. According to the conclusion of the forensic medical examination No. 02-12-21 dated 27.03.2015, T.'s death occurred as a result of traumatic shock resulting from head and body injuries.

Defendant G. was brought to trial under Article 99, part 2, paragraph 3.5 of the Criminal Code of the Republic of Kazakhstan. The court of first instance, giving a legal assessment of the actions of defendant G., justified in detail the reasons for the reclassification of the defendant's actions from art. 99 part 3 of paragraph "3.5" of the Criminal Code of the Republic of Kazakhstan to art. 99 Part 1 of the Criminal Code of the Republic of Kazakhstan, excluding in his actions the commission of murder of a person who is in a helpless state and with particular severity.

Thus, the court of first instance found that when G., having finished his chores, went into the kitchen, T., using obscene language, attacked the defendant with an axe in his hands and tried to harm his health. In this case, it should also be noted that the events took place in the house of G., where the latter invited the victim.

Motivating the verdict, the court of first instance did not give a proper assessment of these circumstances.

In fact, the court recognized that there had been an attack on G. by T., which threatened the defendant's health, and even his life, given that the attack was with the use of an axe. In such circumstances, according to the authors, G. was in a state of necessary defense.

In accordance with Article 32 of the Criminal Code of the Republic of Kazakhstan, legitimate protection of the personality and rights of the defender and other persons, as well as the legally protected interests of society and the state from socially dangerous encroachment, including by harming the encroaching person, is recognized as necessary defense. All persons have the right to the necessary defense equally, regardless of their professional or other special training and official position. This right belongs to a person, regardless of the possibility of avoiding a socially dangerous encroachment or seeking help from other persons or government agencies.

The court, justifying its conclusions, recognized the testimony of defendant G., given by him during the pre-trial proceedings, as one of the admissible evidence underlying the conviction. It follows from them that when G., having finished his chores, went into the kitchen, T., using obscene language, attacked the defendant and swung an axe at him, he snatched the axe from him and inflicted several blows on the victim's face and body. After that, T. lay down on the bed, and G. struck T. several more blows with an axe.

However, these statements rather indicate that G. only exceeded the limits of necessary defense, since in this case there was no need to cause additional injuries to the attacker.

According to Part 3 of Article 32 of the Criminal Code of the Republic of Kazakhstan, exceeding the limits of necessary defense is recognized as a clear discrepancy between protection and the nature and degree of public danger of an encroachment, as a result of which the encroaching person suffers clearly excessive harm that is not caused by the situation. Such an excess entails criminal liability only in cases of intentional harm.

At the same time, according to the same article, it is not an excess of the limits of necessary defense to harm a person who is encroaching on human life, or when repelling another encroachment involving an armed attack or violence dangerous to the life of the defender or other persons, or with an immediate threat of such violence, or with a violent invasion of a home, premises, as well as if the defender, due to the suddenness of the attack, could not objectively assess the degree and nature of the danger of the attack.

In order to establish all the circumstances of the crime, the court of first instance, in accordance with paragraph 9 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan No. 2 dated May 11, 2007 "On the application of legislation on necessary defense", had to establish and assess: the nature of the encroachment, its public danger, the intensity of the encroachment, the compliance /non-compliance of the degree of protection to the attack, the essence the harm caused to the aggressor, the evidence (explicitness) of the excess of the harm caused, the situation causing/not causing such harm, etc.

 

Another example: By the verdict of the Specialized Interdistrict Criminal Court of the Almaty region dated April 29, 2015, K. was found guilty of committing a crime under art.99 Part 1 of the Criminal Code of the Republic of Kazakhstan and sentenced to 8 years in prison.

According to the verdict, on 13.01.2015, at about 20 o'clock, K. left his house, and he met his friend D. on the street. The two of them bought vodka in the store and drank it on the street. At night, in order to continue drinking alcoholic beverages, the two of them went to the store again, where they bought vodka and came to D.'s house. In this house, they continued to drink vodka. D., intoxicated, began to find fault with his wife B. and express obscene words at her. On 14.01.2015, at about 03 o'clock, B. ran away from home. After that, D. He began to find fault with the person who was with him, a quarrel arose between them, the two of them went outside. During the quarrel on the street, D. took an axe used in the household from the ground and struck with it. and he hurt him with it. At that moment, K., on the basis of the hostile relations that had arisen between them, had a criminal intent to commit murder, that is, to unlawfully intentionally cause death to another person, carrying out his criminal intent, knocked D. down, snatched an axe from his hands and struck D., who was lying on the ground, with the tip of the axe, many blows to a vital the organ of the head. After causing bodily injuries, he fled the scene. On 14.01.2015, at about 06:00, neighbors who found D. bleeding in the courtyard of their house called an ambulance, which took him to the hospital. As a result of his injuries, D. died on 14.01.2015 in the central hospital.

As can be seen from the above, the court of first instance found that during the quarrel there had been an attack on K. on the part of the victim, D., who, using an axe, inflicted wounds on the defendant.

Objectively, this is confirmed by the conclusions of the forensic medical examination No. 13 dated 14.01.2015, which found a lacerated wound on K.'s chin, and numerous bruises on his scalp. These injuries occurred as a result of exposure to a blunt solid object, and are classified as minor harm to health based on the danger to life. The occurrence of a wound on the chin with the tip of an axe is not excluded.

In the reasoning part, the court of first instance indicated that a mutual fight had taken place between K. and D. as a result of the hostile relations that had arisen. However, the court did not mention this in the statement, it only indicated that during the quarrel D. grabbed an axe and injured K. with it, as well as the court actually recognized that the victim himself was the instigator of the quarrel.

Excluding the defendant's being in a state of necessary defense at the time of the crime, the court of first instance referred to the fact that K. had given confused testimony about the crime scene, including the fact that, having taken away the axe, K. had the opportunity to leave the scene.

It should be noted that an inaccurate indication of the crime scene itself cannot exclude the commission of K. both premeditated murder and murder when exceeding the limits of necessary defense. In addition, the case materials established the actual location of the incident.

The fact that K., having taken away the axe, did not leave the scene, but began to strike various parts of D.'s body with it indicates that the defendant clearly exceeded the limits of necessary defense, since there was no need to commit the murder of D.'s attacker.

 

A similar situation can be traced in the verdict against S. S., born on 01.01.1986, who was tried under Article 99, Part 2, paragraph 3 of the Criminal Code of the Republic of Kazakhstan. By the verdict of the Specialized Interdistrict Criminal Court of Almaty dated 05/18/2015, S. was sentenced to 10 years in prison under Article 99, Part 1 of the Criminal Code of the Republic of Kazakhstan.

So, according to the verdict on January 25, 2015, at about 22 hours, a quarrel occurred between S. and her husband R., who were at home, intoxicated, and then turned into a mutual fight due to hostile relations, expressed in the fact that S. made a remark to R. not to make noise in the kitchen and thereby not wake up a minor child, during which S. and R. inflicted bodily injuries on each other. During the ensuing fight, S. With the aim of murder, that is, unlawfully intentionally causing death, R., armed in the kitchen with a utility knife with a wooden handle, inflicted multiple penetrating stab wounds to his chest while on the veranda. As a result of the infliction of penetrating stab wounds to the chest, with damage to the heart and both lungs, which led to heavy blood loss, the victim R. died.

At the hearing, defendant S. testified that R. He beat her, she wanted to scare him with a knife so that he would stop beating her, she does not remember how she stabbed him.

Finding S. guilty of premeditated murder of her husband, the court of first instance, referring to the fact that there had been quarrels between the spouses for four years, which turned into mutual fights, found no reason to regard S.'s actions as committed in a state of necessary defense.

Meanwhile, the court did not give a proper assessment to the defendant's testimony that immediately before the murder was committed, R. he beat her, these statements are consistent with the conclusion of the forensic medical examination No. 04-06-316 dated 28.01.2015, according to which the following injuries were found on the defendant's body: bruises of the head, neck, lower extremities, abrasions of the neck, left lower limb, which caused minor harm to health due to a short-term disorder, for a period of less than 21 days, received from the action of a blunt solid object(s), while the bruise in the head area could have been received at least 6-7 days ago, other injuries, possibly on time, specified in the resolution.

On R.'s body, apart from stab wounds, only a scratch of the face on the left and a bruise of the lower eyelid on the right were found, caused by a blunt hard object with a limited surface.

The verdict does not provide any arguments refuting the testimony of the defendant and the opinion of the defense that the limits of necessary defense were exceeded.

The court of first instance considers the use of a knife to be one of the proofs that S.'s actions should be qualified as premeditated murder, which, in the court's opinion, indicates that the intent was to cause R.'s death. However, the court did not take into account that murder in excess of the limits of necessary defense is also intentional.

According to the authors of the summary, the court of first instance should have investigated the circumstances of the crime more thoroughly and given them an appropriate assessment, including the testimony of the defendant. Instead, the court based the conviction on subjective data, namely the dysfunctional relationship between the spouses.

Apparently, the courts, recognizing premeditated murder in the actions of the defendants, proceed from the fact that all these crimes were committed while intoxicated. The legislator considers the commission of a crime under the influence of alcohol to be aggravating circumstances. However, one should not forget that being intoxicated does not deprive a person of the constitutional right to protection from socially dangerous attacks on life, health, property, housing, property and other legally protected human rights and interests. Another thing is that being drunk does not always make it possible to correctly assess the situation: the intensity of the attack, the moment of its end, at the same time, these circumstances can only affect whether the limits of necessary defense were exceeded or not. Also, the courts did not take into account that they were entitled, in accordance with paragraph 11 of Article 54 of the Criminal Code of the Republic of Kazakhstan, depending on the nature of the criminal offense, not to recognize this circumstance as aggravating.

The practice of considering a civil claim for crimes provided for in Article 99 of the Criminal Code of the Republic of Kazakhstan.

Judicial practice in considering civil claims based on the submitted sentences shows that courts generally correctly apply the norms of the law when considering civil claims for this category of crimes.

The decisions of the courts on the recovery of material damage and moral damage comply with the requirements of the law, the descriptive and motivational part indicates the motives of the decision.

Thus, by the verdict of the Specialized Interdistrict Criminal Court of the North Kazakhstan region dated June 19, 2015, I. was sentenced under Articles 99, part 2, paragraph 8, and 192, part 2, paragraph 4, 58, Part 4 of the Criminal Code of the Republic of Kazakhstan to 18 (eighteen) years in prison with confiscation of all property belonging to him and serving his sentence in a correctional facility. high-security penal colonies.

Material damage in the amount of 24,000 (twenty-four thousand) tenge was recovered from I. in favor of U. To dismiss the rest of the claim.

In the descriptive and motivational part of the verdict, the court indicated that, in resolving the civil claim filed by the victim, the court takes into account that during the investigation of the case, part of the property stolen by the defendant was discovered and seized.

In particular, a gold ring made of gray metal, estimated by the victim at 2000 tenge, as well as yellow metal earrings with pink stones, estimated at 2000 tenge, were found and seized from the defendant himself.

In addition, an aluminum flask stolen by the defendant was found and seized, estimated by the victim at 5,000 tenge. The specified items are subject to return to the victim UL.M..

Therefore, 9,000 tenge should be deducted from the amount of 33,000 tenge claimed by the civil plaintiff U., and therefore 24,000 tenge is subject to recovery from the civil defendant. I. does not dispute the value of the stolen property, the civil claim is recognized by him.

Therefore, in accordance with the requirement of art. 917 of the Civil Code of the Republic of Kazakhstan, 24,000 tenge should be recovered from I. in favor of U. as compensation for material damage for the crime committed, and the rest of the claim should be denied.

However, there are also verdicts where the courts, in violation of the requirements of the law, did not motivate the decisions taken on the claims in any way.

According to art.167 Part 2 of the Criminal Procedure Code of the Republic of Kazakhstan, a civil claim is brought against a suspect, accused, defendant or persons bearing financial responsibility for his actions or those of an insane person.

The Specialized Interdistrict Criminal Court of the East Kazakhstan region, when sentencing S. on July 15, 2015, convicted under Articles 192, part 2, paragraph 4, 99, part 2, paragraph 8, 24, Part 3, 99, part 2, paragraph 1.8, 58, Part 4 of the Criminal Code of the Republic of Kazakhstan to 19 years in prison with confiscation of property while serving a sentence in a high-security penal colony, material damage in the amount of 297,300 (two hundred and ninety-seven thousand three hundred) tenge was satisfied at the expense of the republican budget.

Motivating its decision regarding the recovery of material damage, the court indicated in the descriptive and motivational part of the verdict that during the court session, the victim Zh. He asked to recover the amount of material damage related to the costs of J.'s burial. The specified amount of material damage, within the limits established by law, was requested to be recovered from the republican budget.

According to the court, material damage in the amount of 297,300 tenge is subject to recovery, since the injured party submitted supporting documents, these expenses are directly related to the burial of J.

By another verdict of the specialized inter-district criminal court of Atyrau region dated June 19, 2015, M. was sentenced to 10 years in prison under art.99 Part 1 of the Criminal Code of the Republic of Kazakhstan. The same verdict satisfied the prosecutor's claim for recovery of procedural costs spent on conducting a forensic medical examination in the amount of 24,525 tenge.

The decision taken by the court in this case runs counter to the requirements of Articles 166, 178 of the Criminal Procedure Code of the Republic of Kazakhstan and violates the provisions of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan No. 1 dated June 20, 2005 "On consideration of a civil claim in criminal proceedings".

In accordance with Article 166 of the Criminal Procedure Code of the Republic of Kazakhstan and paragraph 11 of the Regulatory Resolution, civil claims for compensation for damage caused directly by a crime or an act of an insane person prohibited by criminal law are subject to consideration in the main court proceedings.

Other civil claims arising from the circumstances established in the criminal case are subject to consideration in the same proceedings as the criminal case if they are filed in order to reimburse expenses incurred for the burial, treatment of the victim, the participation of himself and his representative in the inquiry, preliminary investigation and in court. Recourse claims can be considered simultaneously with a criminal case only when they are filed in order to compensate the amounts paid to the victim as insurance compensation, benefits or pensions in connection with harm caused to him by a crime or an act of an insane person prohibited by criminal law.

This provision contains an exhaustive list of claims that can be brought in criminal proceedings and is not subject to extensive interpretation.

The prosecutor filed a claim for recovery of costs that are not directly related to the crime, with reimbursement of expenses for burial, treatment, etc. Accordingly, the court could not accept such a statement for consideration as a civil claim.

According to paragraph 8 of Article 177 of the CPC of the Republic of Kazakhstan, as well as based on the meaning of Article 178 of the CPC of the Republic of Kazakhstan, the procedural costs include the amounts spent on conducting an expert examination in the judicial examination bodies, the decision to recover them is taken by the court independently on the basis of the examined case materials, regardless of whether such a claim was made in court by any of the participants in the process.

 

Example: By the verdict of the Specialized Interdistrict Criminal Court of the East Kazakhstan region dated 06/15/2015, Z. was sentenced to 13 years in prison under art. 99 Part 1 of the Criminal Code of the Republic of Kazakhstan. The civil claim of the victim S.H. to Z. for recovery in compensation of material damage caused by the commission of a particularly serious crime of the costs of funerals and commemorations of 296,000 (two hundred ninety-six thousand) tenge has been fully satisfied. Due to the property insolvency of Z. The verdict decided to compensate for property damage in the amount of 296,000 tenge at the expense of the Republican budget. With Z. The state duty was collected in the amount of 2,960 tenge to the state revenue.

Motivating its decision to satisfy the claim, the court stated: "The civil claim of the victim S.H. to Z. for recovery of material damage caused by the commission of a particularly serious crime - funeral and wake costs 296,000 (two hundred and ninety-six thousand) tenge based on art.917 of the Civil Code of the Republic of Kazakhstan should be satisfied in full. Due to the property insolvency of Z. It is necessary to compensate for property damage in the amount of 296,000 tenge per share. at the expense of the Republican budget. Collect the state duty in the amount of 2960 tenge from Z. to the state revenue"

According to paragraphs 19,25 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 1 dated June 20, 2005 "On consideration of a civil claim in criminal proceedings", in order to determine the property status of a civil defendant, it is necessary to determine the amount of his salary, the number of family members, family income and the presence of dependents, the presence of movable and immovable property in his personal and joint ownership, in the descriptive and motivational part of the verdict (resolution) The court should reflect the attitude of the parties to the civil claim., to provide the relevant motives and grounds for the decision on the civil claim with reference to the norms of substantive and procedural laws applied by the court in resolving the issue of the civil claim.

The specified requirements were not fulfilled by the court. The court's decision on the validity of the plaintiff's claims is not motivated by anything. The issue of determining the defendant's financial status and why the court finds him financially insolvent was also not discussed in the verdict. In such circumstances, it is illegal to impose on the Republican Budget the obligation to compensate for the property damage caused.

In addition, it does not follow from the verdict that the victim S. appealed to the court with a request to pay compensation at the expense of budgetary funds. Meanwhile, the court cannot make such a decision on its own initiative, since according to Article 71, Part 7 of the CPC RK, the issue of compensation is resolved by the court at the request of the victim or his legal successor.

In accordance with the normative resolution of the Supreme Court of the Republic of Kazakhstan, the decision to recognize the right of a civil plaintiff to satisfy his civil claim and to transfer the issue of its amount to consideration in civil proceedings is indicated by the court in the verdict (resolution) and such a decision can be taken only in cases where all the grounds provided by law for satisfying the claim The main court proceedings of the criminal case have been established and they testify to the validity of the claim, however, its size cannot be precisely determined without postponing the criminal case proceedings (for example, due to the lack of necessary documents confirming the amount of property damage, etc.).

According to the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Sentence" No. 19 of 2002, the descriptive part of the sentence must contain a description of the criminal act called by the court to be proven, indicating the place, time, method of its commission, the form of guilt, motives and consequences of the crime.

The reasoning part contains evidence, its analysis, the court's conclusions on the evidence of the charge, on the qualification of actions, on punishment and the type of recidivism, on the civil claim.

The expert's opinion, in accordance with Article 111 of the Criminal Procedure Code of the Republic of Kazakhstan, is one of the types of evidence and does not have any advantages over other evidence.

53 of the Criminal Code of the Republic of Kazakhstan, circumstances mitigating criminal liability and punishment must be recognized as such by the court, and not simply listed.

Article 54 of the Criminal Code of the Republic of Kazakhstan stipulates which circumstances are recognized as aggravating criminal liability and punishment.

At the same time, this list is exhaustive, and also in part 2 of the same article of the Criminal Code it is stipulated that if the circumstance specified in part one of this article is provided for by the relevant article of the Special Part of this Code as a sign of a crime, it cannot be re-considered as a circumstance aggravating responsibility and punishment.

The presence of aggravating circumstances indicates an increased public danger of the committed crime and the person who committed it.

Also, the presence of such circumstances provides the court with the opportunity to impose a more severe type and amount of punishment.

In accordance with paragraph 4, Part 3, Article 299 of the Criminal Procedure Code of the Republic of Kazakhstan, the descriptive and motivational part of the indictment sets out the circumstances aggravating and mitigating the suspect's responsibility.

According to Article 340 of the CPC of the Republic of Kazakhstan, the main trial is conducted only against the defendant and within the limits of the charge on which he is being tried.

A change of charge is allowed provided that this does not violate the right of the accused to a defense.

9 of August 15, 2002 "On the court verdict" the descriptive part of the verdict must contain a description of the criminal act recognized by the court as proven, indicating the place, time, method of its commission, the form of guilt, motives and consequences of the crime.

 

Thus, in the verdict of the Specialized Interdistrict Criminal Court of the South Kazakhstan region dated 04/09/2015, in relation to

To. The court, resolving the fate of the material evidence, indicated that it was subject to resolution in accordance with Article 118 of the CPC of the Republic of Kazakhstan, while in no way justifying the decision, which was outlined in the operative part.

This action of the judge is incorrect, since in accordance with Part 3 of Article 397 of the CPC of the Republic of Kazakhstan, the descriptive and motivational part of the verdict must contain justification for the decisions taken on the issues specified in Article 390 of the CPC of the Republic of Kazakhstan, including the fate of physical evidence.

The imposition of penalties for murder under qualifying circumstances

In accordance with 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", when sentencing crimes against human life and health, courts should take into account the totality of all the circumstances in which they were committed: the type of intent, motives and purpose, the method, setting and stage of the commission of the crime, the severity of the consequences, the identity of the perpetrator, the presence of mitigating and aggravating circumstances and punishment.

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" states that in accordance with the requirements of Part 2 of Article 51 of the Criminal Code, provided for by the sanction of the article of the Criminal Code, according to which the crime is qualified, additional punishment in the form of confiscation of property may be imposed for the commission of this crime only in the case when mercenary motives are established during its commission.

In the same regulatory resolution of the Supreme Court of the Republic of Kazakhstan, it is clarified that when the sanction of a criminal law provides for the possibility of applying or not applying additional punishment, the courts are required to discuss the issue of its appointment and indicate in the reasoning part of the verdict the reasons for the decision. The non-application of additional punishment in such cases does not require an indication of this in the operative part of the sentence.

Thus, on May 26, 2015, the specialized interdistrict criminal court of the South Kazakhstan region found B. and D. guilty of committing a crime under art.99, part 2, paragraphs 7,9 of the Criminal Code of the Republic of Kazakhstan. B. was sentenced under this article to 16 (sixteen) years in prison, without confiscation of property, after serving his sentence in a high-security penal colony.

D. Under this article, a sentence of 15 (fifteen) years of imprisonment was imposed, without confiscation of property, and the sentence was served in a high-security penal colony.

The descriptive and motivational part of the verdict does not specify any reasons for not using confiscation of property.

As mentioned above, the presence of aggravating circumstances indicates an increased public danger of the crime and the person who committed it. Also, the presence of such circumstances provides the court with the opportunity to impose a more severe type and amount of punishment.

In a number of sentences, the court, recognizing the existence of aggravating circumstances, nevertheless imposed the minimum penalty provided for in Article 99, Part 1 of the Criminal Code of the Republic of Kazakhstan, without giving reasons for the decision. Whereas, according to Part 2 of Article 397 of the Criminal Procedure Code of the Republic of Kazakhstan, the court is obliged to indicate the motives for resolving all issues related to the imposition of criminal punishment.

The sanction of Article 99, Part 1 of the Criminal Code of the Republic of Kazakhstan provides for punishment in the form of imprisonment for a term of eight to fifteen years. When a court imposes a criminal penalty, the law requires that a justification be provided for the imposition of a particular amount of punishment.

According to Article 55 of the Criminal Code of the Republic of Kazakhstan, when convicted of a particularly serious crime, the absence of aggravating circumstances is the basis for imposing a punishment of no more than three quarters of the maximum term and the amount of the most severe type of punishment. In other words, there should be no aggravating circumstances when imposing a minimum sentence.

Thus, by the verdict of the specialized interdistrict criminal court of the Karaganda region dated July 22, 2015, P. was sentenced to 8 years in prison under Article 99, Part 1 of the Criminal Code of the Republic of Kazakhstan.

The Court considers the fact that the crimes were committed under the influence of alcohol as an aggravating criminal liability and punishment. He attributed the admission of guilt to mitigating factors and, on this basis, considered it possible to impose punishment within the scope of the sanction of the article.

The authors draw attention to the fact that the court considered it possible to impose a sentence within the scope of the sanction of the article, which should probably be understood as an opportunity to impose any sentence from eight to fifteen years. However, in the presence of aggravating circumstances, the court imposed a minimum sentence.

Thus, by the verdict of the specialized interdistrict criminal court of the East Kazakhstan region dated May 15, 2015, M. was sentenced under Article 99, Part 1 of the Criminal Code of the Republic of Kazakhstan to 8 years in prison, based on Article 60 of the Criminal Code of the Republic of Kazakhstan, the punishment under the previous sentence was partially added to the imposed sentence and nine years and six months of imprisonment were finally determined.

At the same time, on the basis of art. 14, part 2, paragraph of the Criminal Code of the Republic of Kazakhstan, a dangerous recidivism was recognized in the actions of the convicted person.

The court found that earlier on 11/21/2014, Court No. 2 in Semey, M. was sentenced to three years of restriction of liberty under 103 Part 1 of the Criminal Code of the Republic of Kazakhstan. The crime in question was committed while serving it.

Meanwhile, in accordance with art. 14, part 2, paragraph 2 of the Criminal Code of the Republic of Kazakhstan, the commission of a particularly serious crime by a person who has previously been sentenced to imprisonment for a serious or especially serious crime is recognized as a dangerous recidivism.

Thus, the court did not take into account the fact that M. had not previously been sentenced to imprisonment, and therefore unlawfully recognized in his actions a dangerous recidivism. Based on the content of Article 14 of the Criminal Code of the Republic of Kazakhstan, there is no relapse in M.'s actions at all.

The sentence was changed in the criminal case against M.

Thus, by the verdict of the specialized interdistrict criminal court of the Pavlodar region dated April 14, 2015, M. was sentenced under Article 120, Part 1 of the Criminal Code of the Republic of Kazakhstan to 3 (three) years in prison, under Article 96, part 2 of paragraph "b, k" of the Criminal Code of the Republic of Kazakhstan to 12 (twelve) years in prison. In accordance with Article 58, Part 4 of the Criminal Code of the Republic of Kazakhstan (as amended on July 16, 1997), by partially adding up the punishments, M. was finally sentenced to imprisonment for a period of 14 (fourteen) years to be served in a high-security penal colony.

The court of first instance found M. guilty that on October 07, 2014, at about 01:30 a.m. in Pavlodar, the defendant M., passing near the building, met his brother M. and the building guard N., who invited them into the building, where the three of them began to drink alcoholic beverages in the room. After drinking alcoholic beverages, M. went home, and the defendant M. stayed with N. in the building for further drinking. Around 05.00 hours

The defendant M., being intoxicated, in order to satisfy his base needs, set out to commit rape of N.. To this end, M., taking advantage of N.'s helpless condition caused by the fact that the latter was heavily intoxicated, stripped her, punched her several times in the face and head to suppress resistance from N., causing her bruises on the head, face, and both upper limbs, corresponding to causing minor injury to her health. a sign of his short-term disorder, after which he transferred her to a sofa in the foyer of the building, where, against the latter's will, he entered into sexual intercourse with her, thereby raping her. Continuing his criminal actions, at about 05:20 A.M., in order to conceal his rape of N., taking advantage of her helpless condition due to severe alcohol intoxication, he decided to commit the murder of N.. To this end, M. first took the stole around N.'s neck by the ends, began to pull them in different directions, thereby strangling her, and then, taking a kitchen knife from the room, returned to the foyer of the building, where, realizing the public danger of his actions, anticipating the possibility of socially dangerous consequences, namely, the death of a man, and desiring this, deliberately inflicted N. with a kitchen knife, she was stabbed four times in the right neck area, causing penetrating stab wounds to the latter on the anterior lateral surface in the upper third of the neck, on the border of the upper and middle third of the neck on the right, with damage to the muscles of the neck and esophagus, the external jugular vein, from which N. died on the spot, and also caused a stab wound to the lateral surface of the middle third of the neck on the right, corresponding to causing minor harm to health due to a short-term disorder in relation to a living person, and not being causally related to death.

Another case was considered on appeal by a convicted person.

Changing the verdict of the court, the board of appeal pointed out that the analysis of the examined evidence showed that the actions of convicted M. under Articles 120, part 1, 96, part 2, paragraphs "b, k" of the Criminal Code of the Republic of Kazakhstan were incorrectly qualified by the court of first instance.

Thus, it followed from the testimony of convict M. that on October 06, 2014, he and N. drank vodka in the building, while his brother M. drank beer. At about 00:30 after her brother left, N. began to molest him, that is, she began to hug and kiss him, and then undressed, after which the two of them went to the foyer of the building, where there was a sofa under the stairs, on which the two of them had sexual intercourse, after which they returned to the room.

At that time, his brother returned and brought a 0.5-liter bottle of vodka, which he and N. began to drink.. At about 04:20, his brother decided to go home and invited him to come with him, while N. began to ask him to stay and his brother left alone.

When the brother left, he and N. had sexual intercourse again on the sofa in the lobby of the building, after which he sat down on the sofa, and N. lay on the floor next to the sofa.

At that moment, he remembered that his wife was cheating on him and, imagining that N. was his wife, he began to strangle her with a stole (scarf) that was around N.'s neck, tightening the ends of the stole in different directions, and then, taking a kitchen knife from the room, returned to the foyer of the building, where he inflicted this The knife stabbed several times in the neck area of N.

The convicted M. gave these statements immediately during the first interrogation as a suspect, on the day when he committed the murder, that is, on October 7, 2014. According to the conclusion of the expert of the forensic medical examination No. 1055 dated 8.10.- 6.11.2014, during the forensic medical examination of N.'s corpse, no bodily injuries were found in the genital area. It follows from the protocol of the inspection of the scene dated 7.10.2014 and the photo table to it that the clothes of the victim N. are not scattered, but lie neatly on a chair.

Thus, the study of the case file showed that there is no objective and reliable evidence of rape committed by the convicted person in the case file.

And his guilt in committing this crime is based only on assumptions.

The conclusions of the court of first instance that the discovery of bodily injuries to victim N. in the form of bruises in the head, face, both upper limbs, neck abrasions, refute M.'s arguments that he did not commit rape of victim N., cannot be considered justified, since the presence of these injuries is indisputably not confirms that the rape took place.

And the accusation brought against M. that, precisely for the purpose of raping the victim, in order to suppress her will to resist, he struck several blows to N.'s face and head with his fists, are only assumptions of the investigating authorities, since this accusation is not confirmed by anyone or anything.

In accordance with Article 19 of the Criminal Procedure Code of the Republic of Kazakhstan, irremediable doubts about the guilt of the accused are interpreted in his favor.

A guilty verdict cannot be based on assumptions and must be supported by a sufficient body of reliable evidence. In connection with the above, the board concluded that M.'s conviction under Article 120, Part 1 of the Criminal Code of the Republic of Kazakhstan is subject to cancellation due to the absence of elements of this crime in his actions and the proceedings in this part should be discontinued.

Taking into account these circumstances, the actions of convicted M. from art. 96, part 2, paragraphs "b,k" of the Criminal Code of the Republic of Kazakhstan were reclassified to art.96, Part 2, paragraph "b" of the Criminal Code of the Republic of Kazakhstan as murder, that is, the unlawful intentional infliction of death on another person, obviously for the guilty being in a helpless state, with the exception of the accusation qualifying the attribute "committed in order to conceal another crime involving rape."

Regulatory and legal framework

1) The Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code of the Republic of Kazakhstan);

2) The Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC of the Republic of Kazakhstan);

3) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the qualification of certain crimes against human life and health" No. 1 dated May 11, 2007 (as amended and supplemented by Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 1 dated April 21, 2011);

4) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On consideration of a civil claim in criminal proceedings" No. 1 dated June 20, 2005 (as amended and supplemented by Regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan No. 10 dated June 25, 2010 and No. 1 dated April 21, 2011);

5) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated June 25, 2015 "On certain issues of criminal punishment";

6) Regulatory Resolution of the Armed Forces of the Republic of Kazakhstan No. 2 dated May 11, 2007 "On the application of legislation on necessary defense";

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