Evidence of a shot fired at a vital organ when there are no threatening actions on the part of the victim indicates the perpetrator's intent to kill the victim.

By the verdict of the specialized interdistrict criminal Court of the Turkestan region dated October 22, 2018, S., who had no previous convictions, was acquitted under part 3 of Article 287 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), sentenced under part 1 of Article 99 of the Criminal Code to 10 years in prison to serve his sentence in an institution of the maximum security penal system. The sentence was calculated from April 11, 2018. By the verdict of the court, S. was found guilty of unlawfully intentionally causing the death of B. The verdict was upheld by the decision of the Judicial Board for Criminal Cases of the Turkestan Regional Court dated February 20, 2019. In the petition, M.'s lawyer, in the interests of the convicted S., indicates that the court's conclusions do not correspond to the actual circumstances of the case, since S.'s actions were caused by the desire to detain a wanted person for committing a robbery. The fact of premeditated murder is not confirmed by the case file, and therefore the court gave an incorrect assessment of the actions of the convicted person. He believes that the convicted S., as a victim of B.'s criminal assaults, had the right to detain him. He claims that the convict defended his life and the lives of his loved ones within the limits of necessary defense and did not exceed it. He asks to cancel judicial acts, to terminate the case due to the absence of corpus delicti in his actions. In accordance with paragraph 1 of part 1 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are violations of constitutional rights and freedoms of citizens committed during the investigation or judicial review of a case, or improper application of criminal and criminal procedure laws that led to the conviction of an innocent person, violation of his right to protection.

Evidence of a shot fired at a vital organ when there are no threatening actions on the part of the victim indicates the perpetrator's intent to kill the victim.

The Judicial Board of the Supreme Court considers that there are no such violations in the criminal case against S. In the verdict, the Court of first instance found it established that on April 9, 2018, at about 3 a.m., the victim B. inflicted bodily injuries on M. On the same day, at about 4:30 p.m., the victim B. arrived at M.'s house, where an argument took place between them. At that moment, his brother, S., arrived at M.'s house. Having seen the victim B., S. pointed an unidentified weapon at him. In response to S.'s actions, the victim took a hunting knife out of his pocket, but S. shot victim B. from behind to the back area – to the right side of the lower back, causing serious injury to health, resulting in death. The pre-trial investigation body and the lower courts came to this conclusion on the basis of a comprehensive, complete and objective study of the circumstances of the case, namely, the testimony of S., witnesses and other case materials. So, during the pre-trial investigation, defendant S. claimed that he shot the victim from behind, from about three meters away. However, he did not indicate that a fight had taken place between him and the victim. At the hearing, he changed his testimony and indicated that there had been a fight between him and the victim, as a result of which the weapon had fired arbitrarily. He took this gun from the victim's car. However, it follows from the testimony of witnesses J., M. and U. that the convict brought the Winchester with him, in addition, the latter testified that before S.'s arrival, no one was swearing in the house, everyone was sitting and chatting, he saw S. go outside, took something out of the car, put it in the left I took off my jacket sleeve and went straight home, and after about 5 minutes a shot rang out. From the testimony of witnesses M. According to the information given by them during the pre-trial investigation, it follows that the victim B. took a knife out of his pocket only after S. entered the courtyard of the house with a weapon in his hands. The testimony of P., given during the pre-trial investigation, indicates that the victim B. first threw a knife, then rushed at S., who was armed with a gun. In such circumstances, the court correctly concluded that the victim B. pulled a knife out of his pocket and held it against M., P. after S. came with a gun in his hands and aimed at him with the aim of premeditated murder. He had never threatened anyone before, and there was no knife in his hands. Therefore, the court reasonably concluded that the victim B. had not committed any illegal acts against the family of S.

The above circumstances refute the lawyer's arguments about S.'s innocence in committing premeditated murder. In such circumstances, the judicial board considers that the court correctly concluded that convict S. deliberately fired a shotgun into the victim's vital organ, the right lumbar region, while he was aware of the social danger of his actions, foresaw the possibility of socially dangerous consequences and desired them to occur. His actions are correctly qualified under part 1 of Article 99 of the Criminal Code. Punishment of the convicted S. It was appointed taking into account all the circumstances of the case, proportionate to what was done, and fair. The court documents, drawn up in the official language and not translated into the language of the proceedings established in this criminal case, were the subject of research in court and did not affect its conclusions about the proven guilt of the convicted person in the commission of a crime and the qualification of his actions. Based on the above, the judicial board for criminal Cases of the Supreme Court upheld the judicial acts of the local courts against S., and the petition of M.'s lawyer in the interests of convicted S. was not satisfied. 

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