Intentional infliction of serious harm to health
By the verdict of the Atbasarsky District Court of the Akmola region dated August 2, 2019: L., previously, on March 10, 2017, convicted under paragraph 1) of part 2 of Article 188 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 2 years and 6 months of restriction of liberty, with confiscation of property and the establishment of probation control, was convicted under part 1 Article 106 of the Criminal Code to 3 years and 6 months of imprisonment. On the basis of parts 1 , 4 of Article 60, part 5 of Article 64 of the Criminal Code, by partially attaching the unserved part of the punishment under the previous sentence, L. He was sentenced to 3 years and 10 months of imprisonment to be served in an institution of the medium-security penal system. The term of punishment for convicted L. was calculated from August 2, 2019. L. was charged with procedural costs in the amount of 841 tenge and a compulsory payment to the Victims Compensation Fund in the amount of 20 monthly calculation indices in the amount of 50,500 tenge. By the verdict of the court, L. was found guilty of intentionally causing serious harm to the health of the victim K. By a decision of the judicial board for Criminal Cases of the Akmola Regional Court dated October 2, 2019, the court's verdict was changed to recognize the circumstance mitigating L.'s criminal responsibility and punishment – the presence of dependent young children. The reference to the application of part 5 of Article 64 of the Criminal Code was excluded from the verdict. In the petition, the convicted L., disagreeing with the qualification of his actions, indicates that the victim is his own brother K., he did not apply to the pre–trial investigation authorities with a statement on the fact of causing serious harm to health, and had no complaints against him. The trial was conducted unilaterally, with an accusatory bias. He requests that his actions be reclassified under Article 114 of the Criminal Code and that a non-custodial sentence be imposed.
Intentional infliction of serious harm to health
In the petition, lawyer N. presents the same arguments as convict L., and also points out that the testimony of the convict, victim and witness M. has not been analyzed. The only reason for the conviction was that, at the stage of the pre-trial investigation, L. fully admitted his guilt in the specified act. L. is positively characterized at his place of work, has two dependent young children, reconciled with the victim, and fully repaired the damage caused by the crime. He asks to retrain L.'s actions. from part 1 of Article 106 of the Criminal Code to Article 114 of the Criminal Code and impose a non-custodial sentence. In his petition, the victim K. asks to change the judicial acts, assigning L. a non-custodial sentence. The court's conclusions on the evidence of L.'s guilt in intentionally causing serious harm to the health of the victim K. under the circumstances set out in the court verdict are based on evidence objectively examined and properly evaluated at the court session and correspond to the actual circumstances. L.'s guilt, except for his partial confessions, which did not deny the fact of inflicting K. blows to the head with a fist are confirmed by the testimony of the victim K., witnesses M., O., protocols of investigative actions, conclusions of forensic examinations and other materials of the criminal case. From the conclusions of the forensic medical examination, it follows that the victim K. suffered bodily injuries in the form of a closed craniocerebral injury, diffuse brain injury, traumatic subarachnoid hemorrhage, bruised wounds of the scalp, eyelid, brow area on the left, which could have been formed by the action of blunt solid objects, impacts with them, or when hitting them. In the court of appeal, expert S. testified that K.'s injuries were caused by the impact of blunt hard objects, and not by falling from a height of his own height. In such circumstances, the court correctly qualified L.'s actions under part 1 of Article 106 of the Criminal Code. At the same time, the court of appeal, having correctly excluded the application of part 5 of Article 64 of the Criminal Code on the cancellation of a suspended sentence in the verdict of the court of first instance, did not properly pay attention to the correctness of sentencing the convicted person according to the totality of sentences. So, according to the case file L. He was sentenced by the verdict of the District court No. 2 of the Esil district of Astana dated March 10, 2017 under paragraph 1) of part 2 of Article 188 of the Criminal Code to 2 years and 6 months of restriction of freedom. From the letter of the probation service attached to the case file, which was received by the court of first instance on November 1, 2019, it follows that L. was registered with the probation service of the Atbasar district of the Akmola region on April 18, 2017. On August 2, 2019, L. was removed from the probation service due to the fact that a sentence was passed against him. Thus, L. served 6 months of his 2–year sentence, which was 2 years, 3 months, and 15 days. The unserved term of punishment is 2 months and 15 days. Attached to the case file is a certificate from the probation service inspector G. dated March 13, 2019, stating that L. has been registered with the probation department since April 18, 2017 to the present, that is, on March 13, 2019. However, the court of first instance, when imposing punishment on the basis of Article 60 of the Criminal Code, added 4 months to the unserved part of the punishment, which is not true. At the same time, the judicial board considers that the arguments of the petitions regarding the imposition of excessively harsh punishment to the convicted person, which does not correspond to the gravity of the crime committed and his personality, are justified on the following grounds.
In accordance with parts 2, 3 of Article 52, part 2 of Article 39 of the Criminal Code, punishment is applied in order to restore social justice, correct the convicted person and prevent the commission of new crimes by both convicted and other persons, and when appointing it, the nature and degree of public danger of the criminal offense, the identity of the perpetrator, including his behavior before and after the commission of the offense, the circumstances mitigating and aggravating responsibility and punishment, the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family or persons, those who are dependent on him. According to the clarifications of paragraph 6 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of criminal punishment", if the sanction of the article of the Criminal Code for which a person is found guilty provides for alternative types of punishments, the courts should discuss the possibility of imposing a less severe one. The specified requirements of the law in determining the type and amount of punishment in relation to convicted L. were not observed by the lower courts. The case file established that between L. and K. A conflict arose due to the fact that the latter was abusing alcoholic beverages and L. had punched K. in the face several times and caused serious harm to his health. The victim K. Both during the pre-trial investigation and in the courts of the first, appellate and cassation instances, he showed that he had no material or moral claims against his brother. Because he believes that he is to blame because he abuses alcoholic beverages. From the testimony of O.'s mother, it follows that the sons often quarreled because K. He is a heavy drinker, and therefore had to be coded, but he continued to drink alcohol. She asked for a non-custodial sentence to be imposed on L.'s son. The court did not sufficiently take into account mitigating circumstances, such as L.'s marital status, the presence of two young children dependent on him, a partial admission of guilt, and the victim's opinion on the imposition of a non-custodial sentence. At the place of residence and work, L. is characterized positively, does not abuse alcoholic beverages. While the victim K. He systematically abuses alcoholic beverages, is registered with a narcologist with a diagnosis of "Mental and behavioral disorders caused by alcohol consumption, addiction syndrome," and is negatively characterized by neighbors.
Intentional infliction of serious harm to health
The Judicial Board concluded that, taking into account the circumstances mitigating criminal liability and punishment of L., it is possible for a convicted person under part 1 of Article 106 of the Criminal Code to impose a non-custodial sentence in the form of restriction of liberty. The sanction of part 1 of Article 106 of the Criminal Code (in force at the time of sentencing) provided for punishment in the form of restriction of liberty for a period of 3 to 7 years or imprisonment for the same period. In accordance with part 1 of Article 44 of the Criminal Code, the restriction of freedom consists in establishing probation control over a convicted person and engaging him in forced labor for one hundred hours annually during the entire term of serving the sentence. Forced labor is organized by local executive bodies in public places and is served no more than four hours a day. Convicts who have a permanent place of work are not involved in forced labor. Due to the fact that L. has a permanent place of work, forced labor is not assigned to him. At the same time, the courts should have paid attention to the pre-trial investigation of the case. The reason for the criminal case was the report of the operational duty officer, based on the nurse's report on the admission of citizen K. to the hospital. intoxicated with a closed traumatic brain injury. The pre-trial investigation of the case was decided to be conducted in the form of an inquiry. The criminal case was initiated under Article 107 of the Criminal Code. According to article 189 of the CPC, a pre-trial investigation in the form of an inquiry is conducted by the criminal prosecution body for crimes specified in parts 2-12 of Article 191 of the CPC, including in cases of criminal offenses provided for in Article 107 of the Criminal Code. By a decree of the Deputy head of the Atbasar district police Department dated March 14, 2019, the investigative task force was entrusted with conducting a pre-trial investigation into a criminal offense under Article 107 of the Criminal Code. On March 30, 2019, the investigative task force was disbanded.
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