On judicial practice in cases of hooliganism

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 3.

     The footnote. Throughout the text, the numbers "257" are replaced by the numbers "293" in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

      In order to ensure uniform judicial practice and the need to provide clarifications to the courts on issues that have arisen in the field of application of legislation on liability for hooliganism, and in connection with changes in current legislation, the plenary session of the Supreme Court of the Republic of Kazakhstan

      Decides:

In accordance with the law, 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 disdain for them, accompanied by the use of violence against citizens or the threat of its use, as well as destruction or damage, may be recognized as criminally punishable hooliganism. other people's property, or by committing obscene acts characterized by exceptional cynicism.

A distinctive feature indicating a greater degree of public danger of criminally punishable hooliganism compared to minor hooliganism is the special audacity of violating public order, expressing a clear disrespect for society.

      In cases where obscenity in public places, insulting harassment of individuals, desecration of residential premises, common areas and other similar actions expressing disrespect for others, violating public order and peace of mind of individuals, were accompanied by the use of violence or the threat of its use, as well as the destruction or damage of other people's property, such actions come out They go beyond the scope of an administrative offense and form part of a criminally punishable hooliganism.

      A particularly audacious violation of public order may be recognized as such a criminal violation of public order expressing obvious disrespect for society, which was accompanied by the use of violence against citizens or the threat of its use, the destruction or damage of other people's property, or the commission of obscene acts characterized by exceptional cynicism. Such actions can also include a prolonged and persistent violation of public order, disruption of a mass event, temporary cessation of normal activities of an enterprise, institution, organization or public transport.

      Obvious disrespect for society should be understood as a demonstrative violation of generally accepted norms and rules of behavior, dictated by the perpetrator's desire to set himself against others, to demonstrate a disdainful attitude towards them.

      Exceptional cynicism should be understood as actions that were accompanied by demonstrative disregard for generally accepted norms of morality, for example, shamelessness, bullying of the sick, elderly, helpless persons, and others.

      The indictment and the verdict must necessarily reflect what exactly the particularly audacious violation of public order was expressed in, and the obscenity of hooliganism was revealed. It is unacceptable to indicate in the verdict qualifying signs of hooliganism that were not imputed to the person by the criminal prosecution authorities.

     The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

If there are multiple crimes, some of them contain signs of a crime provided for in Article 293 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), it is necessary to be guided by the explanations on the application of Article 13 of the Criminal Code given in the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 11 "On the qualification of multiple and cumulative crimes".

      Hooliganism should be distinguished from other crimes, including those committed by a person with hooligan motives, depending on the content and direction of his intent, motive, purpose and circumstances of actions.

     Insults, beatings, injury to health and other similar actions committed in the family, against relatives, acquaintances and caused by personal hostility, improper actions of the victims, should be qualified under articles of the Criminal Code providing for responsibility for crimes against the person. In cases where such actions were simultaneously associated with a gross violation of public order that was obvious to the perpetrator and expressed clear disrespect for society, they should be qualified as hooliganism.

     The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

When distinguishing violence used for hooligan motives from violence committed during a quarrel or fight based on personal hostility, one should take into account the nature of the relationship between the perpetrator and the victim, the cause and cause of the conflict, identify who initiated it, the degree of activity and the nature of the actions of its participants, and other circumstances indicating the direction of the perpetrator's intent..

      Murder, infliction of serious or moderate harm to health cannot be considered as committed out of hooligan motives only in connection with their commission in a public place or in the presence of unauthorized citizens, if the motives for their commission were, for example, jealousy, revenge, hostile relations and other motives arising from personal relationships, as well as illegal behavior. the victim who initiated the quarrel or fight.

When qualifying hooligan actions of the perpetrator involving murder or causing harm to human health of varying severity, one should be guided by the explanations contained in 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."

      The commission of hooligan acts accompanied by intentional infliction of minor harm to the victim's health is fully covered by the corpus delicti provided for in the relevant part of Article 293 of the Criminal Code.

      At the same time, causing harm to human health of moderate severity, serious harm, or committing murder for hooligan motives should be qualified according to the relevant norms of the Criminal Code, which provide for responsibility for crimes committed against human life and health for hooligan motives.

      Hooligan acts committed both before and after causing death for hooligan motives, causing moderate or serious harm to human health for hooligan motives, and not related to them with a single intent, are in all cases subject to qualification independently under the relevant parts of Article 293 of the Criminal Code.

      Negligent injury to health during the commission of hooliganism cannot entail its qualification as acts accompanied by the use of violence.

     The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).

In cases where illegal seizure of other people's property has been committed during hooliganism, it is necessary to establish the purpose for which this property was seized. If a person pursued a selfish goal, his actions, depending on the method of taking possession of property, should be qualified as a set of crimes against property and hooliganism.

If significant damage has been caused during the commission of hooligan acts as a result of intentional destruction or damage to someone else's property, then such actions are subject to additional qualification under Article 202 of the Criminal Code in the presence of aggravating circumstances provided for in this article.

      When deciding whether significant damage has been caused to the victim, one should proceed from the cost of the destroyed or the cost of restoring damaged property.

     The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

Hooliganism should be distinguished from vandalism, that is, committing acts aimed at desecrating buildings or other structures, damaging property on public transport or in other public places. In the case of vandalism, the violation of public order is not in all cases demonstratively audacious and expressing obvious disrespect for society, since the violation of public order remains unknown until its consequences are discovered.

When giving a legal assessment of the actions of the perpetrators as hooliganism committed in the presence of qualifying signs of "commission by a group of persons", "a group of persons by prior agreement", "a criminal group", it is necessary to proceed from the requirements provided for in Article 31 of the Criminal Code.

     The qualifying attribute "commission by a group of persons" may be imputed in cases where two or more perpetrators participated in hooliganism without prior agreement.

When qualifying the actions of the perpetrators on the basis of "commission by a group of persons by prior agreement", it is necessary to find out whether there was an agreement between two or more persons expressed in any form to commit hooliganism, whether these persons colluded before committing actions directly aimed at violating public order, that is, before the objective side of the crime was fulfilled by at least one the performer.

      Hooliganism is qualified on the basis of "a group of persons by prior agreement" and in cases where the common efforts of two or more persons are combined to commit it and the actions of each of the accomplices are a necessary condition for the commission of the actions of other accomplices, according to the preliminary distribution of roles, and are causally related to the common one resulting from the activities of all accomplices, a criminal result. In such cases, it is not necessary for two or more perpetrators to participate in the commission of hooliganism; one performer is sufficient if there are other types of accomplices.

      The responsibility of the organizer, instigator or accomplice comes under Article 293 of the Criminal Code with reference to Article 28 of the Criminal Code, except in cases when they were simultaneously co-perpetrators of hooliganism.

     A person who was not in a preliminary conspiracy with other accomplices of hooliganism, but joined them and took direct part in the course of its commission by other persons, should be responsible for the specific actions actually committed by him as a co-executor.

     The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

When deciding on the qualification of the actions of several persons under part three of Article 293 of the Criminal Code, indicating the qualifying feature provided for in paragraph 1 of part two of the same article, the courts should keep in mind that a preliminary agreement should be reached not only on the joint commission of hooligan acts, but also on the use of weapons or objects specially adapted to cause harm to health. To qualify what was done, it does not matter whether all the persons who agreed to commit such a crime used weapons or objects.

      In the event that one person, in the course of committing joint illegal actions in the absence of prior collusion with other participants in the crime, used or attempted to use weapons or objects specially adapted to cause harm to health, what he did, if there are grounds for it, is subject to qualification taking into account the requirements of Article 30 of the Criminal Code.

     The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

Criminal acts of a person may be qualified by paragraph 2 of the second part of Article 293 of the Criminal Code in the case when they took place directly during the commission of hooligan acts and are associated with resistance to a representative of the government or another person performing duties to protect public order or stop the violation of public order.

     The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

Resistance to a representative of the government or another person performing duties to protect public order, or suppressing a violation of public order, should be understood as deliberate actions (striking, beating, harming health) of the perpetrator to overcome the legitimate actions of these persons aimed at suppressing a violation of public order, for example, by detaining or disarming a person committing hooliganism., preventing the continuation of hooligan acts in any other way.

Hooliganism and resistance offered after the cessation of hooliganism, for example, in connection with the subsequent detention of the perpetrator, are subject to qualification as a set of crimes.

      Hooligan acts that are accompanied by resistance to a person performing duties to protect public order or stop a violation of public order, including those associated with violence or the threat of its use against these persons, are fully covered by the disposition of paragraph 2 of the second part of Article 293 of the Criminal Code and do not require additional qualifications under other articles. Resistance to a person who is responsible for protecting public order or suppressing a violation of public order is not covered by hooliganism only in cases where another more serious offense is committed as a result of the violence used.

     The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

If the perpetrator, while resisting a person performing duties to protect public order or stop a violation of public order, intentionally caused serious or moderate harm to his health, or committed murder, the act, if there are grounds for it, should be classified according to the totality of crimes provided for in paragraph 2 of the second part of Article 293 of the Criminal Code and, accordingly, paragraph 2 of the second part of Article 106 of the Criminal Code, paragraph 2 of the second part of Article 107 of the Criminal Code or paragraph 2 of the second part of Article 99 of the Criminal Code, as the commission of the specified crimes against a person in connection with the exercise of his official activity or the performance of a professional or public duty.

     The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

Other persons who perform duties to protect public order or prevent violations of public order should be understood as conscripts involved in the protection of public order, as well as other persons involved in such actions on their own initiative.

Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).

When qualifying a person's actions under part three of Article 293 of the Criminal Code, the courts, if necessary, should, in accordance with the Law of the Republic of Kazakhstan dated December 30, 1998 No. 339-I "On State Control over the turnover of certain types of weapons" and on the basis of an expert opinion, determine whether the object or device used in the commission of hooliganism is a weapon designed to defeating a live or other target.

      If there are grounds for that, the actions of a person who used a weapon in committing hooliganism should additionally qualify under Article 287 of the Criminal Code. At the same time, the guilty person must be aware that he is using a weapon.

     The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

The use of firearms, gas weapons, knives, brass knuckles and other cold weapons or other objects 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 intentional use as a weapon. means of mental violence. That is, the basis for qualifying such actions under the third part 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.

      At the same time, it should be borne in mind that the use of weapons involves only the use of their damaging properties (for example, in the case of blows with the handle of a weapon during hooliganism, it should be regarded as an object used to harm health, and not as a weapon).

      When using a deliberately unsuitable or unloaded weapon or other object in the process of hooliganism that only imitates the weapon specified in part three of Article 293 of the Criminal Code (a mock pistol, a toy knife or brass knuckles, etc.), regardless of the victim's perception of it, the actions of the perpetrator cannot be qualified under part three of Article 293 of the Criminal Code.

Verbal threats, as well as the demonstration of weapons or other objects during hooliganism, are covered by the disposition of the first part of Article 293 of the Criminal Code and cannot be qualified as hooliganism committed with their use, since such actions do not yet indicate the use of weapons or other objects, therefore, they do not pose a real threat to the life and health of citizens.

Objects specially adapted for causing harm to health are those to which the perpetrator, for the specified purpose, gave properties of a damaging nature in advance or during the commission of hooligan acts, as well as objects that, although not subjected to any preliminary treatment, were specially prepared by the perpetrator and were with him for the same purpose of use, based on their constructive properties. features and properties (household knives, screwdrivers, axes, batons, baseball bats, metal pipe trimmings, sticks, fittings, razors, and others).

      The use or attempt to use objects picked up at the scene of a crime that were not specifically adapted to cause harm to health cannot serve as a basis for qualifying actions on the grounds of part three of Article 293 of the Criminal Code.

The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

An attempt to use firearms, gas weapons, knives, brass knuckles and other cold weapons or other objects specially adapted to cause harm to health should be understood as actions directly aimed at using these objects in accordance with their intended purpose, but not completed due to circumstances beyond the control of the perpetrator.

To declare invalid in connection with the adoption of this resolution:

      Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated July 21, 1995 No. 5 "On judicial practice in cases of hooliganism".

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.

Chairman of the Supreme Court

Republic of Kazakhstan

K. Mamie

Judge of the Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

J. Baishev

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

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