Illegal intrusion into a home against the will of persons, committed with the threat of violence, by a group of persons

By the verdict of the specialized interdistrict criminal court of Kostanay region dated November 7, 2017, B., who had no previous criminal record, was sentenced under part 2 of Article 149 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 1 year in prison, under part 3 of Article 24, under paragraph 1), 7) of part 2 of Article 99 of the Criminal Code to 15 years in prison. On the basis of part 4 of Article 58 of the Criminal Code, 15 years and 3 months of imprisonment were finally imposed by partial addition of punishments and served in an institution of the maximum security penal system. A., previously convicted: on May 29, 2013, under part 2 of Article 178 of the Criminal Code, to 3 years of restriction of liberty, on April 20, 2016, the sentence was served, he was sentenced under part 2 of Article 149 of the Criminal Code to 1 year and 6 months of imprisonment, under part 3 of Article 24, under paragraph 1), 7) of part 2 of Article 99 of the Criminal Code to 15 years in prison. Based on part 4 of Article 58 of the Criminal Code, 15 years and 8 months of imprisonment were finally imposed on the totality of criminal offenses by partial addition of punishments, with serving the sentence in an institution of the maximum security penal system. In accordance with Article 94 of the Criminal Code Outpatient compulsory psychiatric treatment has been prescribed at the place of serving the sentence. The procedural costs were collected from convicted A. – 290,702 tenge, from B. – 283,614 tenge. By the verdict of the court, B. and A. were found guilty of unlawful invasion of a dwelling against the will of the persons living in it, committed with the threat of violence, by a group of persons, at night, as well as attempted murder of two or more persons committed by a group of persons. By the decision of the Judicial Board for Criminal Cases of the Kostanay Regional Court dated January 12, 2018, the verdict against B. and A. left unchanged. In the protest, the Prosecutor General, without disputing B.'s guilt in illegally invading the home against the will of the persons living in it in the group with A., raises the issue of changing judicial acts and canceling his conviction for attempted murder of victims, considering that the conclusions of the court set out in the verdict on this episode do not correspond to the factual circumstances of the case.. In this regard, he asks to cancel the conviction of B. according to part 3 of Article 24, paragraphs 1), 7) of part 2 of Article 99 of the Criminal Code, and the case should be terminated due to the absence of corpus delicti in his actions, and the application of part 4 of Article 58 of the Criminal Code should be canceled. He also considers it necessary to exclude from A.'s actions the qualifying feature of part 2 of Article 99 of the Criminal Code "by a group of persons", and leave the rest unchanged.

In the petition, convicted A., disagreeing with the judicial acts, asks them to change and reclassify his actions from part 3 of Article 24, paragraphs 1), 7) of part 2 of Article 99 of the Criminal Code to part 2 of Article 192, Article 108 of the Criminal Code, believing that K. entered the victim's house. he came in to take alcohol, during which he injured the victim with a knife. At the same time, B. restrained him, dissuading him from doing this, but he did not obey him. He asks to reduce the sentence. The court's conclusions on the guilt of convicts B. and A. in the illegal invasion of the dwelling against the will of the persons living in it by a group of persons, as well as A. The attempted murder of two or more persons under the circumstances set out in the court verdict are correct and are based on the totality of evidence examined at the court session, which is also not disputed in the prosecutor's protest. Thus, B.'s actions are correctly qualified under part 2 of Article 149 of the Criminal Code, and A. – under part 2 of Article 149, part 3 of Article 24, paragraph 1 of part 2 of Article 99 of the Criminal Code. The punishment imposed on convicted persons in accordance with the requirements of Article 52 of the Criminal Code is fair. At the same time, the prosecutor's arguments set out in the protest are well-founded and must be satisfied. According to paragraph 18 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "On judicial verdict", due to the presumption of innocence and in accordance with Article 19 of the Code of Criminal Procedure of the Republic of Kazakhstan (hereinafter referred to as the CPC), a guilty verdict cannot be based on assumptions and must be supported by a sufficient set of reliable evidence. In accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 4 "On certain issues of evaluation of evidence in criminal cases", a court verdict cannot be recognized as legitimate if it is made only on the basis of the victim's testimony, which has not been analyzed, compared for reliability and not confirmed by other evidence.

An assessment of a witness's testimony is an analysis of it in order to identify reliable information about the facts that correctly reflect the circumstances of the case. Assessing the contradictory testimony of various witnesses about the same factual circumstances, the court must, with the help of other evidence, analyze the contradictions contained in the testimony itself, resolve them, indicating in the judicial act the motives for which some statements were accepted and rejected as untrue. Contrary to these requirements, the court's conclusions on the guilt of convicted B. The charges of attempted murder committed by a group of individuals are based on the testimony of victims J., D., K. and witness S., given by them in the main trial, whereas these testimonies are diametrically opposed to their own testimony at the pre-trial stage of the investigation. Based on the analysis of the testimony of victims Zh., D., K. and witness S., given by them at the court session, and their comparison with other factual data collected at the stage of the pre-trial investigation, doubts arose about B.'s guilt in committing the attempted murder of the victims. So, convict B. from the moment of detention and during the confrontation with the victim K. and witness S. He consistently denied his guilt in the attempted murder of the victims, explaining that before the invasion of the house and while there, he had no conspiracy with A. to kill K. and his family members. He testified that, on the contrary, he had stopped A., who was heading towards the house of the victim K. This fact was confirmed by convict A. The victims K., D., and witness S., who were interrogated at the pre-trial stage, gave similar testimony that B. He did not commit any actions against them, but when he saw the fight, he backed away, hid the knife and ran outside. Victim Zh. testified that he left the room and saw A. striking K. At the same time, the victim did not report any actions or statements on the part of B., but only indicated that K. had driven him away with a bat.

These statements were confirmed by the victim K. and witness S. during the identification of B. and confrontations with him. Only the victim, K., testified in the first interrogation that one of the attackers said at the entrance to the house: "Let's take him down." However, at the hearing, the victims Zh., D., K. and witness S., having significantly changed their testimony, began to assert that A. and B., having burst into the house, shouted "oltiremiz barini, oltiremiz" (translated: "let's kill, let's kill everyone"), that B. also attacked, brandishing a knife, although earlier They did not mention such circumstances at the pre-trial stage of the investigation. At the same time, the subsequently modified statements of the victims and the witness, given by them during the consideration of the criminal case regarding B.'s actions, contain contradictions with each other and are inconsistent with other evidence. The victim J. and witness S. testified in court that they had seen K. fighting with B. However, the victims K. and D. did not say in court that B. had committed any active acts against them, in particular, K. testified that B., having seen how he fell from A.'s blow, ran into the street. If there really was a fight between B. and the victim K., then B. There should have been any bodily injuries, whereas it follows from the conclusion of the forensic medical examination that B. has no injuries. Due to the fact that the victims and witnesses justified the change in their testimony by saying that they were in a state of shock on the day of the interrogation, the court took them as the basis of the charges. At the same time, the court's verdict did not reflect the testimony of the victims and witness S., given by them at the pre-trial stage of the investigation, which significantly contradict each other. It was established from the case file that the crime was committed on March 9, 2017, at about 03:00 hours, and the victims: K. He was interrogated on March 9, 2017, from 06:05 to 06:53 hours, D. – from 07:00 to 07:37 hours, J. – from 09:30 to 10:20 hours, witness S. – from 06:15 to 07:15 hours, procedural actions to identify K. The suspects, B., were held at 17:12 p.m., S. – B. at 16:30 p.m., and the confrontation between S. and K. with convict B. at 17:40 and 19:42 hours, respectively. It follows from the above data that the time and duration of their interrogations was sufficient for them to indicate all the circumstances of the case and the details of each convict's actions at the time of the home invasion.

 Moreover, it is impossible not to take into account that the victim Zh., who worked at that time as deputy head of the Department of Internal Affairs of Arkalyk, by the nature of his work should not have missed all the details and circumstances of the crime committed against him during interrogation as a victim. In addition, at the stage of the pre-trial investigation, the investigator asked all the victims and the witness a clarifying question about whether B. and A. threatening statements about demands for money, property, etc., to which they gave negative answers, except for K., who testified only once in the first interrogation that one of the convicts said "knock him out" when he opened the door. During the pre-trial investigation, the victims were repeatedly familiarized with the procedural documents of the criminal case, where there were no requests from their side to supplement the testimony. Similarly, the victims did not receive any petitions regarding the inaccuracy or inconsistency of their testimony when reviewing the materials of the criminal case, which is confirmed by the protocols of reviewing the case. It should also be noted that the investigation of the criminal case lasted more than two months, and this time was enough to file a petition or appeal the actions of the investigator, who twice sent the case to the court for robbery and illegal home invasion, and not for attempted murder. An attempt at premeditated murder on the subjective side is characterized only by direct intent, when the perpetrator, while committing premeditated actions, was aware of their socially dangerous nature, acted with the aim of unlawfully causing death to the victim, foresaw its occurrence and desired it, but due to circumstances beyond his control death did not occur. B.'s lack of intent to kill the victims is confirmed by B.'s repeated explanations that he had stopped A., who had gone to K.'s house, and by the explanations of the convicted A. that B. had indeed stopped him. It is also confirmed that he did not inflict bodily harm on the victims, stood aside and did not take any active actions. It should be noted that B., having a knife in his hands, had the opportunity to harm the victims' health if he wanted to, but he did not do so. The court and the criminal prosecution body have not established the motive for B.'s attempted murder of two or more persons. According to paragraph 2 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", when committing a crime by several persons, it is necessary to establish the degree of participation of each of the accomplices, to find out whether there was a prior conspiracy between them, whether the roles were distributed, as well as all other circumstances, on the basis of which it is possible to draw a conclusion about the commission of an act by a group of persons, to determine the form and degree of complicity of each of the persons brought to justice., individually qualify their actions and impose a fair punishment.

According to the meaning of the law, a murder should be recognized as committed by a group of persons if it was committed by the joint actions of two or more perpetrators of the crime. But from the testimony of the convicted B. and the evidence examined in court, it follows that both before the invasion of the house and during his stay in it, there was no conspiracy with A. to kill the victims, and he did not take any active actions to do so. Under the established circumstances, the judicial board considers that the guilt of convicted B. The attempted murder of two or more persons committed by a group of persons has not been objectively confirmed and all possibilities for collecting additional evidence have been exhausted. Consequently, judicial acts regarding the conviction of B. for attempted murder are subject to cancellation, and the proceedings in accordance with part 2 of Article 35 of the CPC are terminated due to the absence of corpus delicti in his actions. The acquittal of B. on the episode of attempted murder, in turn, entails the exclusion of paragraph 7) of part 2 of Article 99 of the Criminal Code from A.'s actions In accordance with Chapter 4 of the CPC for B. The right to compensation for damage caused as a result of illegal actions of the body conducting the criminal process should be recognized. The arguments of convicted A. about the reclassification of his actions under part 3 of Article 24, paragraphs 1), 7) of part 2 of Article 99 of the Criminal Code to articles 179, 108 of the Criminal Code are untenable and should be dismissed, since his guilt in the attempted murder of two or more persons is fully confirmed by the case materials examined in court.

Based on the above, the judicial Board for criminal Cases of the Supreme Court amended the judicial acts of the local courts in respect of B. and A. B.'s conviction under part 3 of Article 24, paragraph 1), 7) of part 2 of Article 99 of the Criminal Code was canceled, the proceedings were terminated on the basis of part 2 of Article 35 of the CPC, for lack of composition in his actions crimes. The application of part 4 of Article 58 of the Criminal Code was abolished and it was decided to consider him convicted under part 2 of Article 149 of the Criminal Code to 1 year of imprisonment.

The recovery of procedural costs in the amount of 283,614 tenge from B. in favor of the state was canceled. It was decided to consider the punishment imposed on B. as served and release him from custody immediately. In accordance with article 39 of the CPC, B. is recognized as having the right to compensation for damage caused as a result of illegal actions of the body conducting the criminal proceedings. A.'s actions excluded the qualifying feature of "a group of persons" under part 2 of Article 99 of the Criminal Code and decided to consider him sentenced under part 3 of Article 24, paragraph 1) of part 2 of Article 99 of the Criminal Code to 15 years in prison. On the basis of part 4 of Article 58 of the Criminal Code, he was finally sentenced to 15 years and 8 months of imprisonment in an institution of the maximum security penal system. The rest of the judicial acts remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan was satisfied, the petition of the convicted A. was left without satisfaction.

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