Found guilty of committing violent acts of a sexual nature

By the verdict of the Specialized Interdistrict Court of March 14, 2019: M. previously not convicted, found guilty by part four of Article 121 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), sentenced to 15 years of imprisonment with life deprivation of the right to hold pedagogical positions and positions related to working with minors, and serving his sentence in the highest security institution of the Penal correction system.  M. 70,209 tenge of procedural costs to the state's income, 30 monthly calculation indices to the victims ' compensation fund, that is, 72,150 tenge of forced payments were collected. A car with a state registration number "Toyota Land Cruiser Prado" was confiscated to the state revenue. By the verdict of the court, M. knowingly was found guilty of committing violent acts of a sexual nature against a young child using his helpless state. By the decision of the judicial board for criminal cases dated April 25, 2019, the verdict was left unchanged. In the petition of the representative of the victim U., considering that the answer received from his three-year-old daughter S., of whom he is a legal representative, a month after the criminal incident, and the contradictory answers of the two police officers who came under the incident were not enough to bring a guilty verdict against M., The daughter S. was unable to answer the questions of the investigator, and the words in the interrogation protocol were not said by her daughter, and the forensic results also exclude that M. committed a crime against his daughter, indicating that the illegal sentence negatively affects the relationship between the two families and the future fate of their children, he asked to cancel the judicial acts and send the criminal case for a new trial.

Found guilty of committing violent acts of a sexual nature

Hearing the opinions of the representative of the victim U., who supported the petition, the lawyer sh., who asked for its satisfaction, the lawyer of the convicted B., The prosecutor A., who asked to leave the judicial acts in relation to the convicted B. unchanged, studying the materials of the criminal case, the judicial board considers that the judicial acts in relation to the convicted M. are subject to change on the basis of the following circumstances. As it turned out from the materials of the criminal case, the convicted M. deliberately gave the young boy K. A Doll, put it in his car, went outside the city and stopped in a secluded place.  M. leaving himself and K. without underwear inside the car, holding his excited penis in the back seat, the victim committed other sexually violent acts against a young child. The court concluded that the convicted M. deliberately took advantage of the helplessness of the young boy K., grabbed his excited penis and committed sexually violent acts against him, and did not disclose what exactly violent acts he committed. At the main trial, the witnesses were police officers D. and T. during the evening duty, they suspected that a car with a license plate "Toyota Land Cruiser Prado" was parked alone near the graves, and when they approached it, the doors of the car were locked, the center of the front seats was closed, the car was moving, and it was known that there was a person inside. Once through the back door M. it was reported that he got out, dressed in a hurry, could not fasten the belt of his trousers, from under his underwear it was noticed that his penis was in an excited and tightened state, and the baby – K., who was sitting in the back seat of the car, was naked below the waist, in a loose top, and there was used toilet paper lying near the car. The victim was a young boy K. in the testimony of a psychologist and his legal representative M. he covered the middle of the two front seats of the car with a blanket, then took off his losina and underwear, took off his own underwear, wiped his penis with paper, the penis was large, then the police officers came and said that M. gave him a doll that day.  In the main trial, specialist S. said that the victim participated in the interrogation of the young boy K. as a specialist psychologist, got acquainted with S. in advance and talked to him, in the answer to the question, M. brought him by car and saw his penis. At the main trial, in the course of a comprehensive forensic psychiatric examination of the young boy K., a specialist who participated as a psychiatrist indicated that V. S. told them about the circumstances of the incident in the presence of his mother, that is, during a conversation with S., He said that M. went far with his brother, gave him a doll, According to the conclusion of the forensic medical examination, it was established that the integrity of the girl's dignity of K. was not violated, there were no physical injuries around her penis and in the posterior passage hole. According to the results of the forensic biological examination, no blood or semen was found in the underwear of M., The clothes of the victim, a young child K., A Seat Cover taken from a car, toilet paper taken from the car side, the car itself and the seats. Paragraph 1 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 4" on some issues of qualification of crimes related to rape and other acts of sexual violence " (hereinafter referred to as the normative resolution) states that the satisfaction of sexual desire committed in an unnatural form to a person of the female or male sex (sexual intercourse between a man and a man, sexual intercourse between a woman and a woman, etc.)

Found guilty of committing violent acts of a sexual nature

In accordance with paragraph 6 of the normative resolution, other acts of violence of a sexual nature are considered completed from the moment the same actions began to be committed of a sexual nature. When distinguishing attempted rape or acts of sexual violence from other crimes, it must be established whether the perpetrator acted with the aim of committing a sexual act or other acts of sexual nature against the will of the victims, and whether the use of force was a way to achieve this goal. In the absence of such circumstances, a person is not liable for attempted rape or other acts of sexual violence. And paragraph 14-1 of the normative resolution states that criminal liability for committing sexual acts or other acts of a sexual nature with a person under the age of sixteen, as well as for committing immoral acts against a young child (articles 122 and 124 of the criminal code) arises in cases where immoral acts were committed without the use of force or threats to use it, or without using the helpless state of the victim. Convicted in accordance with the indictment and the court verdict drawn up in the case, M. was accused of holding his penis in front of the victim's eyes and committing other violent acts of a sexual nature against the victim.  However, M. the fact that the victim committed or attempted to commit acts of sexual violence against a young child is not reflected in the answers of the victim, witnesses and expert opinions, but the fact that the convicted person held his penis in front of the victim's eyes proves the presence of a criminal offense provided for by Article 124 of the criminal code in his actions. In such a context of the case, the actions of the convicted M. are subject to re-differentiation from the fourth part of Article 121 of the Criminal Code to the first part of Article 124 of the criminal code. When imposing a sentence on convicted M., The judicial board took into account the circumstances of criminal liability and mitigating punishment for him, the absence of aggravating circumstances and the opinion of the victim's representative. In addition, in accordance with paragraph 2) of part five of Article 46 of the criminal code, the serving of a sentence in the form of imprisonment for M. is subject to establishment in a moderately safe institution of the Penal correction system. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan changed the judicial acts of local courts in relation to the convicted M., and the actions of M. were again differentiated from the fourth part of Article 121 of the Criminal Code to the first part of Article 124 of the criminal code, and he was sentenced to 5 (five) years of imprisonment with deprivation of the right to hold pedagogical positions and positions related to working with minors for 7 (seven) years. Serving the sentence in a moderately safe institution of the Penal correction system was established, and the remaining parts of the judicial acts were left unchanged. The petition of the representative of the victim U. was partially satisfied. 

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