Lawyer in Almaty on criminal cases of Hooliganism

By the verdict of the specialized interdistrict Criminal Court of Kostanay region dated March 15, 2019: I., who had no previous criminal record, was sentenced under part 1 of Article 380-1 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 10 years in prison and served his sentence in an institution of the maximum security penal system. I. was found guilty by the court that on October 16, 2018, at night in P. Borovskoye, Kostanay region, carrying a hunting rifle, with the aim of encroaching on the life of a law enforcement officer, while in his car, fired two shots at the building of the Mendykarinsky district police department, damaged two windows of Investigator P.'s office, in which the light was on, and then fled the scene. The State Institution "Police Department of Mendykarinsky district" caused material damage in the amount of 82,000 tenge. By the decision of the judicial Board for Criminal Cases of the Kostanay Regional Court dated May 8, 2019, the verdict was left unchanged. In the protest, the Prosecutor General points out that the judicial acts that have taken place are unfounded and subject to change due to the incorrect application of the law and the inconsistency of the court's conclusions with the factual circumstances of the case. Requests that I.'s actions be reclassified from part 1 of Article 380-1 of the Criminal Code to paragraph 2) of Part 3 of Article 293 of the Criminal Code, taking into account the requirements of paragraph 2) of part 2 of Article 55 of the Criminal Code, to impose a sentence of 4 years and 8 months of imprisonment to be served in an institution of the medium–security penal system. According to the provisions of article 19 of the Criminal Procedure Code of the Republic of Kazakhstan and paragraph 26 of the normative 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 sufficient set of admissible and reliable evidence is the basis of any verdict.

Lawyer in Almaty on criminal cases of Hooliganism

The verdict must contain a set of evidence on which the court's conclusions are based, as well as motives that reject other evidence. As grounds for the conviction of I. under part 1 of Article 380-1 of the Criminal Code, the court of first instance indicated that the actions of the convicted person were revenge, and his intent when firing shots at the windows of the police building was aimed at depriving a law enforcement officer of his life in order to hinder his legitimate activities. In the verdict, the court, based only on assumptions, noted the revenge of I. police officers for offending him, as he had previously been repeatedly brought to administrative and criminal responsibility. It follows from the case file that the convict and victim P. do not know each other, and there have been no conflict situations between them. In this regard, I. could not have had a goal to encroach on P.'s life out of revenge. In addition, the blinds in P.'s office were closed, so I. could not have known who was there. Moreover, the convicts committed criminal and administrative offenses in different years. The protocols were drawn up by employees of not only the Mendykara district police department, but also other departments of the internal affairs bodies of the Kostanay region. In addition, the court, referring to the testimony of witnesses of police officers Zh., N. and the verdict of May 24, 2017 on the conviction of I. for insulting and disobeying a representative of the authorities, unreasonably concluded that the convict had a negative attitude towards police officers. In accordance with paragraph 1 of the normative resolution of the Supreme Court of January 12, 2009 No. 3 "On judicial practice in cases of hooliganism", hooliganism can be recognized as intentional acts committed with particular audacity, violating public order, showing obvious disrespect for society and moral norms, due to his desire to contrast himself with others, to show his disdainful attitude towards them, accompanied by the use of violence against citizens or the threat of its use, as well as the destruction or damage of other people's property, or by committing obscene acts characterized by exceptional cynicism. The circumstances of the case indicate that I. fired shots at the windows of the police department building for hooligan motives. His actions resulted in a particularly audacious violation of public order, expressing clear disrespect for society, accompanied by damage to property with the use of firearms. This is confirmed by the testimony of victim P., witnesses R., S., Z., the protocol of inspection of the scene, verification and clarification of testimony on the spot, protocols of confrontation, and other materials of the criminal case.

Paragraph 18 of the above-mentioned regulatory decree stipulates that the use of firearms specially adapted to cause harm to health should be understood as actions aimed at using them for their intended purpose to cause harm to health (firing shots, stabbing, and others), as well as their deliberate use as a means of mental violence. That is, the basis for qualifying such actions under part 3 of Article 293 of the Criminal Code is not only the infliction or attempt to harm the victim's health using these objects, but also other behavior of the perpetrator in the process of hooliganism using such objects, which posed a real danger to the life and health of the victim. When considering the case, the court was obliged to find out the motives and goals of I.'s commission of the criminal act imputed to him, since the motive and purpose of the crime relate to the circumstances to be proved. In such circumstances, the board considers that the court has not obtained objective evidence confirming the perpetrator's intent to cause the death of law enforcement officer P. I.'s actions indicate his disrespect for society, disregard for generally accepted rules and norms of morality, and his desire to contrast his behavior with the generally accepted behavior of others. According to paragraph 2 of the normative resolution of the Supreme Court of August 15, 2002 No. 19 "On the judicial verdict", the verdict must be based on evidence that has been collected in compliance with the requirements of the law and fully, objectively and comprehensively examined directly at the court session, with their analysis and proper assessment, and the conclusions of the court are motivated. The inconsistency of the court's conclusions with the factual circumstances of the case led to an incorrect legal assessment of the actions of convicted I., which should be qualified under paragraph 2 of part 3 of Article 293 of the Criminal Code. In the verdict, the court recognized the dependent status of a minor child as a circumstance mitigating the criminal liability and punishment of I.

Lawyer in Almaty on criminal cases of Hooliganism

No aggravating circumstances have been established. According to paragraph 2) of part 2 of Article 55 of the Criminal Code, in the presence of a mitigating circumstance that is not provided for as a sign of a committed crime, and in the absence of aggravating circumstances, the term or amount of the main type of punishment may not exceed two thirds of the maximum term or amount provided for in the relevant article when committing a serious crime. According to part 3 of Article 293 of the Criminal Code, the main type of punishment may not exceed 2/3 of the maximum term, which is 4 years and 8 months. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts in respect of I.: I.'s actions under Part 1 of Article 380-1 of the Criminal Code were reclassified to paragraph 2) of part 3 of Article 293 of the Criminal Code and, subject to the requirements of paragraph 2) of Part 2 of Article 55 of the Criminal Code, a sentence of 4 (four) years 8 (eight) months was imposed. deprivation of liberty while serving a sentence in an institution of the medium-security penal system. The rest of the judicial acts remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied. 

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