Found guilty of intentionally causing death
By the verdict of the specialized interdistrict Criminal Court of Almaty dated December 12, 2019: U., who had no previous criminal record, was sentenced under paragraph 6) of part 2 of Article 99 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 15 years in prison, under part 2 of Article 287 of the Criminal Code to 6 months in prison. Based on part 4 of Article 58 of the Criminal Code, 15 years and 6 months of imprisonment were finally imposed by adding up the penalties and serving the sentence in an institution of the maximum security penal system. Collected from the U. procedural costs to the state revenue in the amount of 471,216 tenge, compulsory payment to the Compensation Fund for Victims in the amount of thirty monthly calculation indices in the amount of 75,750 tenge. In accordance with article 118 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the fate of the material evidence in the case has been resolved. By the verdict of the court, U. was found guilty of intentionally causing the death of the victim Zh. in a manner dangerous to the lives of other people, illegal storage and transportation of short-barreled smoothbore weapons, as well as ammunition for them. By the resolution of the Judicial Board for Criminal Cases of Almaty dated February 28, 2020, the sentence against U. was changed. Regarding the conviction under part 2 of Article 287 of the Criminal Code, the verdict was overturned and an acquittal was issued for the absence of corpus delicti in U.'s actions. U.'s actions from paragraph 6) of part 2 of Article 99 of the Criminal Code were reclassified to part 1 of Article 99 of the Criminal Code, which imposed 9 years of imprisonment.
Found guilty of intentionally causing death
The application of the rules of part 4 of Article 58 of the Criminal Code has been abolished. The rest of the verdict remains unchanged. In the protest, the Prosecutor General considers that the decision of the appellate instance regarding the reclassification of U.'s actions to part 1 of Article 99 of the Criminal Code is subject to cancellation due to the inconsistency of the court's conclusions with the factual circumstances of the case and the incorrect application of the law. He points out that the court of appeal gave an incorrect legal assessment of U.'s actions, unreasonably excluding the qualifying sign of murder "committed in a way dangerous to the lives of other people." Requests that the verdict of the specialized Interdistrict Criminal Court of Almaty dated December 12, 2019 and the decision of the Judicial Board for Criminal Cases of the Almaty City Court dated February 28, 2020 regarding U. be changed. The decision of the Judicial Board for Criminal Cases of the Almaty City Court regarding the reclassification of U.'s actions to part 1 of Article 99 of the Criminal Code should be canceled. Count Y. convicted under paragraph 6) of part 2 of Article 99 of the Criminal Code to 15 years in prison. Exclude the application of part 4 of Article 58 of the Criminal Code to the convicted person. Leave the rest of the judicial acts unchanged. In the petition, the lawyer D. and the defender of the convicted Sh., expressing disagreement with the judicial acts that took place, indicate that during the judicial investigation, the guilt of U. She has not been proven guilty of the crimes charged against him. The factual data that formed the basis for the conviction were incorrectly established, the circumstances essential to the case were not verified, the facts obtained were assessed incorrectly, the norms of the Criminal Procedure Code were not fully respected and applied incorrectly, as a result of which judicial acts are considered illegal and unfounded. They ask to overturn the verdict of the appellate instance of the Almaty City Court of February 28, 2020, and acquit U. under part 1 of Article 99 of the Criminal Code. Or, if the court finds it proven that there is a causal relationship between U.'s actions and J.'s death, reclassify his actions under Articles 102 of the Criminal Code or 104 of the Criminal Code and impose a non-custodial sentence on him. In the objection to the cassation protest of the Prosecutor General, lawyers D., A., and the defense attorney of the convicted person, Sh. They point out that the arguments reflected in the protest are formal and inconsistent with the factual circumstances established during the investigation and trial.
They are asked to dismiss the protest and thereby support their petition. The conclusions of the court of appeal on the qualification of the actions of convicted U. under part 1 of Article 99 of the Criminal Code do not correspond to the factual circumstances of the case established by the court of first instance. Thus, the court of first instance found that on June 6, 2019, U. I met M. near the Kompot restaurant, located at the intersection of Divaev and Radlov streets in Almaty. At the same time, U. had his acquaintances A. and Sh., M., in turn, arrived at this meeting with acquaintances B., Zh. and other persons unidentified by the investigation. During the conversation between U. and M., a conflict arose over the funds transferred by U. and M. to terminate the criminal case on fraud against the victim Yu. Then a fight broke out between all the people present, during which U. was beaten by unidentified persons and received various bodily injuries, including injuries from the use of traumatic weapons against him. Next, U. He got into his car and drove down Divaeva Street towards the Eastern Bypass highway, however, deciding to take revenge on the offenders, he turned around and drove in the opposite direction. Having stopped in front of M., B. and Zh., who were standing near M.'s car, which was parked on a nearby street located on a hill, U., being in the cabin of his car at about 10 meters from them, pointed the muzzle of a firearm in their direction and fired one shot, resulting in gunshot wounds to the face and neck, chest, right shoulder received J. On the way to the hospital, the victim died from gunshot wounds. U.'s actions by the court of first instance on the fact of causing death to the victim J. They are classified under paragraph 6) of part 2 of Article 99 of the Criminal Code as murder, that is, the unlawful intentional infliction of death on another person, committed in a manner dangerous to the lives of other people. The appellate instance excluded the qualifying feature of murder - "committed in a manner dangerous to the lives of others" - due to the lack of reliable evidence of the presence of this qualifying feature in the actions of the convicted person. At the same time, the conclusions of the appeals board are unfounded, since the court reliably established that at the moment of the shot there was a real threat to the lives of three persons, since U. fired a shot towards M., B., and Zh. standing nearby and hit the latter. Moreover, it follows from the case file that J. He did not use physical violence against U., his main opponents were M. and B. It was in their direction that U. fired a shot, but hit the victim J. The circumstances of the crime committed by U. are confirmed by the testimony of the convict himself that during the conflict with M. The latter's friends approached them, among them he recognized the B. brothers, who fired shots at him, while others beat him. Witness M. testified that he and U. had a conflict, during which he punched the latter in the face, causing U. to fall to the ground.
Then J. He ran up to two previously unknown men who had arrived with U., hit one of them in the face, causing him to fall to the ground and lose consciousness. Meanwhile, U. got up from the ground, got into his car and drove away from them. He, Zh. and B. were standing near his car, and at that moment he heard a shot and saw Zh. He screamed and sat down in the back passenger seat. Witness B. gave similar testimony, adding that when the shot was fired, he felt bullets fly past him, and part of the buckshot hit Zh. In accordance with paragraph 11 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 1 "On the qualification of certain crimes against human life and health", in order to qualify murder under paragraph 6) of Part 2 of Article 99 of the Criminal Code as committed in a manner dangerous to the lives of other people, it must be established that, by carrying out the intent to kill of a certain person, the perpetrator was aware that he was using a method that posed a real danger to the life and health of other people by firing shots in crowded places, etc. At the same time, for such a qualification of murder, it is enough that the chosen method of murder is really dangerous to the lives of other people, whose murder was not covered by the perpetrator's intent, and it does not matter whether death or harm to the health of the endangered persons and their number were caused during the commission of the murder. In such circumstances, the court of first instance correctly concluded that U., out of a sense of revenge, had a criminal intent to cause death to his abusers. The defense's arguments that U. there was no intent to kill anyone, the shot was fired arbitrarily into the air to frighten the offenders, it was checked by the judicial authorities and was not confirmed.
Found guilty of intentionally causing death
According to the conclusion of the forensic medical examination, the cause of death was J. hemopneumothorax appeared due to multiple gunshot wounds to the face, neck, chest, and right shoulder with damage to the right lung. These injuries were caused by a single shot from a smoothbore firearm loaded with buckshot. The shot was fired from a short distance, beyond the influence of additional factors of the shot. It follows from the expert's conclusion that the 3 rounded metal objects presented for the study are buckshot shells for equipping cartridges for smoothbore firearms. Thus, the court of first instance came to the correct conclusion that, when firing a weapon loaded with buckshot cartridges, U. was aware that he posed a real threat and danger to the lives of people standing near the victim, since buckshot has the property of spreading over a large area after a shot. In addition, the court of first instance also reasonably refuted the arguments of the defense that there are signs of necessary defense in the actions of the convicted person. The case materials established that, having escaped from M. and other unidentified persons, U. left the scene, his life and health were not in danger. Based on the established factual circumstances of the case, the court of first instance gave a correct legal assessment of the actions of the convicted U., qualifying them under paragraph 6) of part 2 of Article 99 of the Criminal Code. In such circumstances, the judicial board considers that the decision of the Judicial Board for Criminal Cases of the Almaty City Court of February 28, 2020 in respect of U. is subject to change due to the incorrect application of the criminal law.
Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the decision of the appellate court in respect of U. Regarding the reclassification of U.'s actions to part 1 of Article 99 of the Criminal Code, it was canceled. It is decided to count Y. convicted under paragraph 6) of part 2 of Article 99 of the Criminal Code to 15 (fifteen) years of imprisonment while serving their sentence in an institution of the maximum security penal system. The application of part 4 of Article 58 of the Criminal Code to the convicted person is excluded. The rest of the judicial acts remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied. The petition of the lawyer D. and the defender Sh. in the interests of the convicted U. left without satisfaction.
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