Criminal liability for attempted murder and preparation for a crime

By the verdict of the specialized interdistrict criminal court of the Karaganda region dated September 8, 2016: I., who had no previous criminal record, was sentenced under part 1 of Article 287 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to a fine of 100 MCI or 212 000 tenge, under paragraph 1) of part 2 of Article 191 of the Criminal Code to 4 years in prison imprisonment with confiscation of property, under part 3 of Article 28, part 3 of Article 24, under paragraphs 8), 14) of part 2 of Article 99 of the Criminal Code to 11 years and 3 months of imprisonment with confiscation of property. Based on part 4 of Article 58 of the Criminal Code, by partially adding up the penalties for the totality of crimes and absorbing the punishment imposed for a criminal offense, 12 years of imprisonment with confiscation of property and serving the sentence in a high-security penal colony were finally imposed. The case was not considered on appeal. By the verdict of the court and. He was found guilty of illegally carrying a bladed weapon, robbery, as well as organizing and attempting to commit murder, that is, unlawfully intentionally causing the death of another person, committed for hire, obviously by a minor. In the protest, the Prosecutor General, without challenging the qualification of I.'s actions under part 1 of Article 287, paragraph 1) of part 2 of Article 191 of the Criminal Code and the evidence of his guilt, considers that the sentence should be changed due to incorrect qualification of his actions under part 3 of Article 28, part 3 of Article 24, paragraphs 8), 14) of part 2 of Article 99 of the Criminal Code. Requests the court's verdict to be changed: the actions of convicted I. should be reclassified from part 3 of Article 28, part 3 of Article 24, under paragraphs 8), 14) of part 2 of Article 99 of the Criminal Code to part 3 of Article 28, part 1 of Article 24, under paragraphs 8), 14) of part 2 of Article 99 of the Criminal Code and subject to Part 2 Article 56, part 2 of Article 55 of the Criminal Code to impose a sentence of 7 years and 6 months in prison; to leave the sentence imposed under part 1 of Article 287, paragraph 1) of part 2 of Article 191 unchanged; on the basis of part 4 of Article 58 of the Criminal Code to finally impose 8 years and 3 months in prison; to cancel the appointment and additional punishment in the form of confiscation of property. The court's conclusions on the proven guilt of convicted I. in the commission of the above-mentioned criminal offenses are appropriately motivated in the verdict.

Criminal liability for attempted murder and preparation for a crime

The actions of the convicted person in the illegal carrying of cold weapons, open theft of other people's property with the use of violence that is not life-threatening to the victim, were qualified by the court under part 1 of Article 287, paragraph 1) of part 2 of Article 191 of the Criminal Code of the Russian Federation. However, the court's conclusions on the qualification of I.'s actions under part 3 of Article 28, part 3 of Article 24, paragraphs 8), 14) of part 2 of Article 99 of the Criminal Code are unfounded. Thus, article 24 of the Criminal Code states that an attempt to commit a crime is considered to be actions (inaction) committed with direct intent, directly aimed at committing a crime, and preparation for it is the search for an instrument of crime and its accomplices, or other deliberate creation of conditions for the commission of a crime, if the crime was not completed for reasons beyond their control. from the will of the person to the circumstances. As established during the pre-trial investigation and in the main trial, B. was hired by I. for a monetary reward as the perpetrator of the murder of the victim P. B., being a police officer, did not intend to carry out I.'s plan and imitated criminal activity by presenting him with pictures from a minor P.'s mobile phone with a fake death by strangulation. These circumstances are confirmed by the materials of secret investigative actions, the testimony of witnesses B., A., victim P., and other evidence underlying the conviction. In accordance with the criminal law, I.'s actions to find the perpetrator of a crime do not constitute an attempt at a crime, but are covered by preparations for a crime. In this case, B. did not carry out and was not going to carry out the objective side of the crime – murder. In such circumstances, the actions of convicted I. should be qualified not as attempted murder, but as preparation for it and are subject to qualification under part 3 of Article 28, part 1 of Article 24, paragraphs 8), 14) of part 2 of Article 99 of the Criminal Code. The court recognized sincere repentance and young age as mitigating the criminal liability and punishment of the convicted person. No aggravating circumstances have been established. Due to the requirements, the term and amount of punishment for preparation for a crime under part 2 of Article 56 of the Criminal Code may not exceed half of the maximum term or amount of the most severe type of punishment provided for a completed crime. The maximum penalty provided for by the sanction of part 2 of Article 99 of the Criminal Code is 20 years in prison.

Taking into account part 2 of Article 56 of the Criminal Code, half of this term is 10 years in prison. In accordance with paragraph 3) of part 2 of Article 55 of the Criminal Code, in the presence of a mitigating circumstance that is not provided for as a sign of a committed crime, and in the absence of aggravating circumstances, the term or amount of the main type of punishment may not exceed three quarters of the maximum term or amount provided for in the relevant article of the Special Part of the Criminal Code when committing a particularly serious crime. A criminal offense under part 2 of Article 99 of the Criminal Code is classified as a particularly serious crime. In this regard, taking into account the rules of part 2 of Article 56, paragraph 3) of part 2 of Article 55 of the Criminal Code, the maximum permissible punishment that can be imposed on I. according to part 3 of Article 28, part 1 of Article 24, paragraphs 8), 14) of part 2 of Article 99 of the Criminal Code, is imprisonment for a term not exceeding 7 about 6 months old. The Board also took into account that the criminal offense under part 2 of Article 191 of the Criminal Code belongs to the category of serious crimes. In accordance with part 4 of Article 58 of the Criminal Code, if the totality of criminal offenses includes at least one particularly serious crime, then the final punishment is imposed by partial or total addition of punishments. However, the options for applying this law may be different. In addition, the criminal prosecution body has not established whether I. has property obtained by criminal means or acquired with funds obtained in this way. According to part 1 of Article 48 of the Criminal Code, confiscation, that is, compulsory gratuitous seizure and conversion into state ownership, is subject to property owned by a convicted person, obtained by criminal means or acquired with funds obtained by criminal means. Also, according to paragraph 20 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of criminal punishment", confiscation can be applied only to property owned by a convicted person, obtained by criminal means or acquired with funds obtained by criminal means.

Criminal liability for attempted murder and preparation for a crime

Moreover, the property subject to confiscation must be specified in the operative part of the sentence. If it is established that the property and funds have not been obtained by criminal means, the court is obliged to resolve the issue of their fate, stating the reasons for the decision. No property subject to confiscation has been identified by the pre-trial authorities in the case. Therefore, the court should not have imposed an additional penalty in the form of confiscation of property.

Based on the above, the judicial Board for Criminal Cases of the Supreme Court changed the verdict of the court of first instance against I., namely: - I.'s actions from part 3 of Article 28, part 3 of Article 24, paragraphs 8), 14) of part 2 of Article 99 of the Criminal Code were reclassified to part 3 of Article 28, part 1 of Article 24, according to paragraphs 8), 14) of part 2 of Article 99 of the Criminal Code and with the application of part 2 of Article 56, part 2 of Article 55 of the Criminal Code, a sentence of 7 years and 6 months in prison was imposed; - the additional punishment imposed by I. in the form of confiscation of property was canceled; - the imposed punishment in accordance with part 1 of Article 287, paragraph 1) of part 2 of Article 191 remained unchanged; - on the basis of part 4 of Article 58 of the Criminal Code, by partially adding up the punishments for the totality of crimes and absorbing the punishment imposed for a criminal offense, 9 years of imprisonment were finally appointed to serve the sentence in a penal institution. maximum security systems. The rest of the verdict was left unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan was partially satisfied. 

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