He was found guilty of committing acts that went beyond the necessary defense and caused serious harm to the health of the victim and inadvertently led to his death
By the verdict of the Aksu district court of Almaty region dated December 13, 2016, S. was sentenced to 2 years of imprisonment under Part 2 of Article 112 of the criminal code, serving a sentence in a general regime correctional colony. Convicted by a court verdict, S. was found guilty of committing acts that caused serious harm to the health of the victim, causing his death by negligence, when the victim R. entered the personal home of a stranger without permission in a state of intoxication and committed a violation of the law. By the decision of the Judicial Board of the Almaty Regional Court on criminal cases dated January 31, 2017, the court's verdict was changed. Convicted S. was found guilty of the actions of the victim R., which caused intentional serious harm to his health and led to his death by negligence, and his actions were re-qualified by Part 3 of Article 106 of the criminal code and sentenced to 8 years in prison. The rest of the sentence is left unchanged. The decision of the court of Appeal in relation to the convicted S. was changed on the basis of the following circumstances. The judicial board considers it necessary to examine the arguments of the lawyer A. in the petition that the convicted S. was on the shore of fear, panic, bewilderment and defense. In accordance with paragraphs 18, 19 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 2 "on the application of laws on necessary protection", when assessing the damage caused to the attacker, it should be borne in mind that the defending person cannot choose a method of protection in a situation of excitement caused by an encroachment, clearly weigh the nature of the constant threat and, and in a state of mental stress, it is indicated that it involves causing harm to a person who has exposed himself to such a state, in order to determine the mental state of a person at the time of committing such actions, it is mandatory to conduct a psychological and psychiatric examination and evaluate its conclusion along with other evidence.
According to the conclusion of the court psychological and psychiatric examination conducted in the case, it was established that S. was in an emotional state that arose in the course of committing a crime in a state of fear and anxiety. In the unambiguous answer given by the convicted S. during the investigation and at the main trial, it was noted that he had no intention of inflicting bodily harm on the victim R. and his entourage, The Witness K. he said that when he stumbled, he took the knife from his hand to protect himself and his sister, R.'s body was older than him, K. was the reason for the beginning of this event, he constantly beat himself in the place where he met, he defended himself with a knife from fear. The witness replied in a similar way to S. In the main trial in witnesses A., V. and T., S., who was in the car, was taken outside by Witness K., verbally touched him and punched him in the face, seeing that they were overwhelming S. ran back, towards his sister's house nearby, when K. he pulled a knife out of his car, looked at them, demanded to get S. out of his house, threatened himself with a knife, and then ran home after S., They were chased by R. and K., and also showed that K. and J. got into the end of the car. In court, a witness said that when he went after K. R., He saw S. swing the knife in every possible way, when he tried to separate them, R. ran out into the street, and when he went after him, he saw him fall on the ground.
The answers of the above witnesses were that the forensic medical report of the victim R. was caused by wounds on the victim's body that did not enter the chest cavity (1, 2), when he was alive before death, when he was crushed with a flat blade of a knife, each and all together caused minor damage to his health, the total depth of the wound channel was 7-9 CM., the direction coincides with the part that shows that it is drawn from left to right from bottom to top. Representative of the victim E. at the main trial, he said that he was convinced that his son died by negligence at the hands of S., and he had no claims against the convicted person. The basis of the decision of the court of Appeal was the answers given by the witnesses during the investigation, however, despite the fact that the answers given at the main trial and the same answers of the convicted person were fully proved in court, the victim himself threatened the peers of the young convict S., That is, they drank beer, and even on the day of the incident S. was afraid of them, called his comrades and asked him out. And K., drunk with his comrades, with the idea of dominating the youth, stopped the car in which S. was sitting, drove S. from the seat in the car, demanded to bring beer and beat him. S. was afraid of their actions, and at the place of hiding in his sister's house, the victim and his comrades chased and entered the courtyard of the House. At that time, S.'s sister, coming from the toilet in the courtyard of the House, tried to block R.'s path when a man named SH., the owner of the house, grabbed him by the collar, jerked and pushed him. Thus, the court of Appeal did not give an adequate assessment of the actions of the victim and his comrades who came to show dominance, did not provide concrete evidence that refutes the assessment given by the court of first instance. Also, the above-mentioned answers of witnesses A., V. and T. were not examined in detail, and the actions of the witness K. and the older children who were next to him were not evaluated, that is, Articles 429, 430 of the CPC were grossly violated. At the scene of the criminal incident, Witnesses indicated the presence of a knife taken from K.'s car, and their answers from the case documents were not refuted. In this case, the above-mentioned evidence in comparison with this case by the court of Appeal was not studied at the proper level, that is, thoroughly, as a result of which a correct legal assessment of the actions of the convicted person was not given. The court of first instance correctly assessed the actions of S. and correctly ranked Part 2 of Article 112 of the criminal code. This article is among the less serious crimes. The criminal acts were committed in October 2016. Therefore, the amnesty law is subject to application. In accordance with Article 2 of the law of the Republic of Kazakhstan dated December 13, 2016 No. 27-VI" on amnesty in connection with the twenty-fifth anniversary of independence of the Republic of Kazakhstan", it is envisaged to release from punishment a person who has committed criminal offenses and minor crimes. In this regard, there are grounds for applying the aforementioned amnesty law in relation to the convicted person, and he is subject to exemption from punishment. On the basis of the above, the judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan annulled the decision of the Judicial Board of appeal against the convicted S. and changed the verdict of the court of first instance. Article 2 of the law of the Republic of Kazakhstan dated December 13, 2016 No. 27-VI" on amnesty in connection with the twenty-fifth anniversary of independence of the Republic of Kazakhstan " was applied and S. was released from punishment. The convict was immediately released from custody, and the petition of lawyer A. was granted.
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