Criminal offenses are self-harm, in which a person harms himself
By the verdict of the Ural City Court of the West Kazakhstan region dated October 23, 2017: Ch., previously convicted: 1) on April 11, 2007, under paragraph "a" of part 2 of Article 178 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), to 4 years in prison; 2) on November 24, 2008, under paragraphs "a, b, c" of part 2 of Article 175, Article 60 of the Criminal Code, to 4 years in prison, by resolution On December 24, 2008, the appeals board reclassified the actions to part 1 of Article 175 of the Criminal Code and determined 3 years of imprisonment.; 1) on December 8, 2011, under paragraphs "b, d" of part 2 of Article 179 of the Criminal Code, to 5 years in prison; 2) on February 23, 2013, under part 1 of Article 360, Article 60 of the Criminal Code, to 5 years and 3 months in prison, by resolution of April 13, 2017, transferred to a maximum security facility for unserved The sentence was 10 months and 29 days, and he was sentenced to 2 years in prison under part 1 of Article 428 of the Criminal Code. In accordance with part 1 of Article 60 of the Criminal Code, the unserved part of the sentence imposed by the verdict of February 23, 2013 was partially added to the sentence and 2 years and 1 month of imprisonment were finally assigned to be served in an institution of the maximum security penal system. The sentence was calculated from October 23, 2017, and the time spent in custody from April 28, 2017 to October 23, 2017 was counted. By the verdict of the court, Ch. He was found guilty of the fact that, being a person serving a sentence in places of deprivation of liberty, he had maliciously disobeyed the lawful demands of the administration of a penal institution. By the decision of the Judicial Board for Criminal Cases of the West Kazakhstan Regional Court dated November 29, 2017, the verdict of the court remained unchanged. In the protest, the Prosecutor General of the Republic of Kazakhstan, giving a legal assessment to the incriminated Ch. violations of the detention regime, claims the absence of intent of the convicted person to maliciously disobey the requirements of the correctional institution administration and insufficient evidence of his guilt.
Criminal offenses are self-harm, in which a person harms himself
Requests to cancel the judicial acts in respect of H. and, on the basis of paragraph 2 of part 1 of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), to terminate the proceedings in the absence of a criminal offense in the actions of the convicted person provided for in part 1 of Article 428 of the Criminal Code. Thus, the grounds for the cassation review of judicial acts that have entered into force in accordance with article 485 of the CPC are violations of constitutional rights and freedoms of citizens committed during the investigation or judicial review of the case, or the improper application of criminal and criminal procedure laws. As follows from the materials of the criminal case, such violations were committed in the case. By the Court of Ch . He was found guilty of 7 episodes of malicious disobedience to the lawful requirements of the administration of the EC-170/2 DUIS institution in the West Kazakhstan region, committed between February 9, 2017 and April 4, 2017. For these violations, Ch. He was brought to justice in the form of a remark, reprimand, placement in solitary confinement and disciplinary isolation. However, the nature and content of the regime violations incriminated to the convict, together with their legal assessment, do not give grounds to conclude that there are violations in the actions of the convict. the composition of a criminal offense under part 1 of Article 428 of the Criminal Code. Thus, according to 3 episodes (February 9, 27, and April 4, 2017), Ch. was convicted of sewing up his lips with a wire (self-mutilation), thereby, in the court's opinion, violating the requirements of paragraph 3 of part 3 of Article 104 and paragraph 2 of part 2 of Article 130 of the Criminal Executive Code of the Republic of Kazakhstan. (hereinafter referred to as the PEC). It follows from the disposition of paragraph 2 of part 2 of Article 130, paragraph 3 of part 3 of Article 104 of the Criminal Code that violations of the regime form such actions of convicted persons to commit self-harm, which are carried out in order to evade serving a sentence or fulfilling established duties, or involve threatening representatives of the institution's administration, insulting them, disobeying them in order to violate the regime of serving punishments. Such motives for Ch.'s actions in the case have not been established and are not given in the court verdict. In particular, in the report of the duty controller E. On February 9, 2017, it was stated that convict Ch. had contacted the squad's duty station upon the fact of self-injury. From the reports dated February 27 and April 4, 2017, it follows that the inspectors, during a tour of the cells, discovered through the peephole that the convict Ch. He is with his mouth sewn shut.
Thus, from the materials of the case, as well as the explanations of the staff of the institution, the court did not reveal the fact that the convicted person committed self-mutilation for illegal purposes and associated with illegal actions against representatives of the administration. There is no such evidence in the case. Moreover, it follows from the explanations of the correctional officer E., who was questioned in court at the request of Ch., that medical assistance was provided to the convict when establishing the fact of self-mutilation.; There were no protest actions or statements indicating an intention to destabilize the regime of serving a sentence or to evade serving a sentence. The convicted man himself explained that he had inflicted bodily injuries on himself in protest at illegal actions on the part of the administration. He indicated that he had repeatedly sent complaints to the Department of Internal Affairs of the West Kazakhstan region and to the head of the institution, but the institution's staff did not send them, did not give outgoing numbers. In addition, he sewed his mouth shut due to the fact that the convicted R. threatened him with violence. The above arguments of Ch. the court did not check and they were not given a proper assessment, whereas, according to Ch., it was they who provoked him to inflict bodily harm. Qualifying these actions by Ch. as malicious disobedience, the court also did not take into account the provisions of the normative resolution of the Constitutional Council of the Republic of Kazakhstan dated February 27, 2008, according to which self-harm, in which a person harms himself and is not accompanied by violence against others or other illegal actions, as an extreme form of protest is a form of expression (protest) and a way of protection their rights by those sentenced to imprisonment. In such circumstances, prosecution for self-harm is regarded, according to the regulatory decree, as a restriction of the right to freedom of expression and is recognized as unconstitutional.
Criminal offenses are self-harm, in which a person harms himself
Taking into account the above, with the established factual content of the acts of self-mutilation and their legal assessment, the above episodes do not constitute a fact of disobedience to the legitimate requirements of the administration. In addition, Ch. was charged with episodes of disobedience on March 4, 18 and 29, 2017, according to which the convict, while in solitary confinement, was lying on the floor in the DISO cell, thereby violating the daily routine and the regime of serving his sentence. By virtue of part 3 of Article 97 of the PECS, Internal Regulations apply in institutions. These Rules were approved by the Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated November 17, 2014 No. 819 and regulate the internal regulations of institutions of the penal system. Paragraph 2 of section 8 of the Rules details the conditions of detention of convicts in disciplinary isolation wards, solitary confinement cells and temporary isolation rooms and does not contain such restrictions as prohibiting convicts from lying on the floor outside the allotted time for sleeping. It follows from Appendix No. 3 to the Rules that the daily routine for convicts held in disciplinary isolation cells is set separately. However, stating in the verdict that H.'s actions violated the daily routine, the daily routine itself was not investigated by the court on the dates of the alleged violations, and it is missing from the case file. The court did not establish or verify what exactly the convict was supposed to be doing while lying on the floor, and what requirements of the daily routine were ignored by him. The court also did not give an appropriate assessment to the fact that the prohibition of a convicted person to lie on the floor or sleep on the floor outside the allotted time for sleeping correlates with the Rules of the internal regulations of institutions of the penal system, since if such a prohibition is established by the daily routine, it must follow the legal restrictions established at the legislative level. In fact, the court did not verify the legality of the actions of the institution's administration in assessing the above-mentioned actions of Ch., such as violation of the established procedure for serving a sentence and the facts of disobedience to the orders of supervisors. This information is also missing from the case file. Thus, from the reports of the inspectors dated March 4, 18 and 29, 2017, it follows that Ch. He was lying on the floor, sleeping, and did not respond to the comments. The same explanations were given by the staff of the institution at the court hearing. The convict admitted the fact that he slept on the floor, explaining that he did not know about the ban. In addition, it was established from the explanations of the convict that on March 29, 2017, he slept on the floor in a solitary cell, no one reprimanded him. Under the established circumstances, evidence indicating the presence of H. There is no intent to maliciously disobey the legitimate demands of the institution's administration.
Criminal offenses are self-harm, in which a person harms himself
The pre-trial investigation body, and subsequently the court, when passing sentence, limited themselves to a formal indication that the convicted person had committed violations of the established procedure for serving a sentence, failed to comply with the legal requirements of the administration, without giving them a legal assessment in conjunction with all the circumstances of the case and the applicable regulations. As for the incriminated H. violations of the established procedure for serving a sentence dated March 28, 2017, according to which, in the premises of the detention center, not wanting to get acquainted with the materials on the imposition of disciplinary punishment, he expressed obscenity to an employee of the institution, then neither in its content nor in the nature of the violation, given its single occurrence, it cannot be a reason for the involvement of Ch. to be criminally liable under part 1 of Article 428 of the Criminal Code. Under the established circumstances, the actions of H. There are no signs of a crime provided for in part 1 of Article 428 of the Criminal Code, and the criminal case is subject to termination for lack of evidence of a criminal offense. The adoption of such a decision entails, in accordance with article 39 of the CPC, recognition of the convicted person's right to rehabilitation in accordance with Chapter 4 of the CPC. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court annulled the judicial acts of local courts in respect of Ch. and terminated the proceedings on the basis of part 1 of Article 428 of the Criminal Code, paragraph 2 of part 1 of Article 35 of the CPC - for the absence of the actions of Ch. the composition of the criminal offense. Due to the completion of the sentence imposed by the court on February 23, 2013, Ch. was released from custody immediately. In the order of Chapter 4 of the CPC, it is recognized for Ch. the right to rehabilitation and compensation for damage caused by illegal actions of bodies conducting criminal proceedings. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied.
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