On the qualification of certain criminal offenses against human life and health

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Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 1.

The footnote. The title is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

The footnote. Throughout the text, the words "crimes", "crime", "crime" are replaced, respectively, by the words "criminal offenses", "criminal offense", "criminal offense" in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

In connection with the amendment of the legislation of the Republic of Kazakhstan and in order to ensure uniformity in the application of criminal legislation on liability for criminal offenses against human life and health, the plenary session of the Supreme Court of the Republic of Kazakhstan

p o s t a n o v l I e t:

The footnote. The preamble as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

To ensure the correct application of the criminal law in the qualification of criminal offenses against life and health and the imposition of fair punishment, it is necessary to establish the form of guilt, the type of intent, motives and purpose, method, setting and stage of the commission of a criminal offense, the severity of the consequences. The authorities conducting criminal proceedings should motivate their conclusions in procedural documents (indictment, verdict) with acceptable, relevant and reliable evidence.

The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When committing a criminal offense by several persons, it is necessary to find out whether there was a prior agreement between them to commit a criminal offense, whether the roles were assigned, what actions were performed by each of them during the commission of a criminal offense, as well as all other circumstances on the basis of which it is possible to conclude that the act was committed by a group of persons, a group of persons by prior agreement or a criminal group, determine the form of complicity of each of the persons brought to justice, individually qualify their actions and impose a fair punishment.

The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

In accordance with the second part of Article 28 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), perpetrators of a criminal offense should be recognized as persons who acted with a single intention, themselves directly participated in the process of executing a criminal offense (performed the objective side of the criminal offense) or committed a criminal offense through the use of other persons who are not subject to criminal liability in due to age, insanity, or other circumstances provided for in the Criminal Code, or with the help of machinery or animals. Their actions are subject to qualification according to the relevant part (paragraphs) of the article providing for responsibility for the committed criminal offense, without reference to Article 28 of the Criminal Code.

The actions of other accomplices who, in accordance with the law, are recognized as organizers, accomplices, instigators of a criminal offense, if they were not simultaneously co-perpetrators of the same criminal offense, must be qualified under the article providing responsibility for the criminal offense committed by the perpetrator, with reference to article 28 of the Criminal Code.

The footnote. Paragraph 3 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).

A completed criminal offense against human life and health can be committed with both direct and indirect intent, and an attempt to commit them from the subjective side is characterized only by direct intent. Therefore, along with determining the stage of commission of a criminal offense, the form of guilt should also be taken into account, to find out and establish what the perpetrator's intent was directed at, what consequences resulted from the criminal offense, and the perpetrator's subjective attitude to the occurrence of just such a result. If the criminal offense was interrupted before its completion, it is necessary to clarify why the perpetrator stopped his actions, whether it depended on his will, whether he had a real opportunity to continue committing the criminal offense, what circumstances prevented the onset of socially dangerous consequences.

In this regard, attempted murder under Article 99 of the Criminal Code should be recognized as intentional acts in which the perpetrator 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.

The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

The basis for qualifying murder under paragraph 1) of the second part of Article 99 of the Criminal Code is the intention of the perpetrator to simultaneously cause death to several persons. In such cases, the murder of two or more persons is usually committed by one act or several acts in a short period of time and indicates a common intent of the perpetrator to cause the death of two or more persons.

If a certain amount of time has passed between the murder of the first and the murder of the second victim, then qualification under paragraph 1) of the second part of Article 99 of the Criminal Code is possible only if the perpetrator has a single intention to cause death to both victims. For example, the perpetrator first causes the death of one victim, and then, in order to carry out his single intent aimed at killing two persons, after a certain time and in another place, he takes the life of the second victim.

If the perpetrator's intent is to kill two or more persons, when the result of the criminal intent is the death of several persons due to circumstances beyond the control of the subject of the crime, the murder of one and the attempted murder of another person cannot be considered as a completed criminal offense - the murder of two persons. In such cases, the actions of the perpetrator of an unfinished murder are subject to qualification under part three of Article 24 of the Criminal Code and paragraph 1) of part two of Article 99 of the Criminal Code, and the completed murder - under part one or part two of Article 99 of the Criminal Code, depending on the presence or absence of qualifying features. At the same time, the sequence of actions of the perpetrator in the simultaneous murder of one person and the attempted murder of another does not matter for such a qualification.

If, when committing the murder of several persons, the intent of the co-perpetrators of the crime was aimed at taking the lives of several people and for its implementation they distributed roles among themselves, as a result of which each participant in the crime directly participated in taking the life of only one person, then the actions of each of them are also subject to qualification under paragraph 1) of the second part of Article 99 of the Criminal Code.

The murder of two persons cannot be qualified under paragraph 1) of the second part of Article 99 of the Criminal Code if responsibility for one of them is provided for by the relevant part of Article 99 of the Criminal Code, and for the other by Article 100 of the Criminal Code, 101 of the Criminal Code, 102 of the Criminal Code or Article 103 of the Criminal Code. In such cases, each criminal offense is subject to qualification independently according to the relevant norm of the criminal law.

The footnote. Paragraph 5 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).

When qualifying murder under paragraph 2) of the second part of Article 99 of the Criminal Code, it should be clarified which lawful actions of the victim, related to the exercise of his official activities or the performance of professional or public duty, prompted the perpetrator to commit his murder or the murder of his loved ones, since a prerequisite for such qualification is the intention of the perpetrator that he encroaches on the life of this person is precisely related to these circumstances.

At the same time, the performance of official activities should be understood as the activities of a person within the scope of his official duties, and the performance of a public duty should be understood as the exercise by any citizens of both specially assigned public duties and the commission of any other actions in the interests of society or individuals (for example, the suppression of offenses, reporting an impending or committed criminal offense, giving testimony , etc.). The fulfillment of a professional duty should be understood as the commission by a person of actions related to a particular profession (for example, the artist's depiction of sketches, portraits, caricatures). In cases where the murder of the victim is committed in connection with the illegal official activity of the victim, the qualification of the act under paragraph 2) of the second part of Article 99 of the Criminal Code is excluded.

To qualify a murder committed in connection with the victim's performance of official duties, his professional or public duty, it does not matter whether the murder was committed during the victim's actual performance of the above actions or at another time.

The term "relatives" specified in paragraph 2) of the second part of Article 99 of the Criminal Code includes not only close relatives specified in paragraph 11) of Article 7 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), but also other persons who are valued by a person engaged in official activities or performing a professional or public duty.. At the same time, in each case, it is necessary to establish the knowledge of the culprit about their close relationship.

The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

According to paragraph 3) of the second part of Article 99 of the Criminal Code, it is necessary to qualify the murder of a person who, due to his mental or physical condition, was unable to resist the criminal and protect himself from the criminal encroachment committed against him. Such persons, in particular, may include minors, the elderly and seriously ill, as well as persons suffering from mental disorders that deprive them of the opportunity to correctly perceive what is happening. The murder of a sleeping person, as well as a person who is in a helpless state due to severe alcohol or drug intoxication or for other reasons, should also be qualified under paragraph 3) of the second part of Article 99 of the Criminal Code.

Finding the victim in a helpless state at the time of causing his death should be carefully checked and evaluated by the court. It should be borne in mind that the young or elderly age of the victim, his being intoxicated, does not in all cases indicate his helpless state, therefore, these circumstances must be assessed taking into account the specific circumstances of the case (for example, the victims actively resisting the attacker, causing him injury in response, etc.).

To qualify murder under paragraph 3) of the second part of Article 99 of the Criminal Code, it is necessary that the victim be in a helpless state at the time of the commission of the culpable acts related to causing his death. At the same time, it does not matter whether the victim himself brought himself into a helpless state (was injured in a fall on the street, consumed alcoholic beverages or narcotic drugs, etc.) or whether his condition occurred as a result of the actions of others.

The actions of the perpetrator (giving sleeping pills, alcoholic beverages or narcotic drugs, binding, striking, causing bodily injuries that caused loss of consciousness) committed in order to bring the victim into a helpless state and facilitate the execution of the intent to kill him are part of the objective side of this criminal offense. In such cases, causing death to the victim cannot be qualified under paragraph 3) of the second part of Article 99 of the Criminal Code.

The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When qualifying a murder involving kidnapping, it should be borne in mind that responsibility under paragraph 3) of the second part of Article 99 of the Criminal Code occurs when the murder of an abducted person is committed, as well as when other persons are killed in connection with the kidnapping (for example, intentional unlawful infliction of death to a person preventing the abduction). In such cases, kidnapping and murder form a set of criminal offenses, and each criminal offense is subject to independent qualification in accordance with the relevant parts of Article 125 and paragraph 3) of the second part of Article 99 of the Criminal Code. Premeditated murder committed during hostage-taking or during his detention should be qualified independently according to the relevant parts of Articles 99 and 261 of the Criminal Code, depending on the established qualifying features of each criminal offense.

The footnote. Paragraph 8 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 official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When qualifying a murder under paragraph 4) of the second part of Article 99 of the Criminal Code, it is necessary to establish that the perpetrator at the time of the murder was aware of the victim's pregnancy. At the same time, the duration of pregnancy, the condition of the victim due to pregnancy in a medical institution, the viability of the fetus, etc., does not matter for the qualification of murder.

In cases where the perpetrator only assumed that he was committing the murder of a pregnant woman, but in fact the victim was not pregnant, the actions of the perpetrator, in the absence of other qualifying features, are subject to qualification under the first part of Article 99 of the Criminal Code.

The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

According to paragraph 5) of the second part of Article 99 of the Criminal Code, murder is subject to qualification, in which the perpetrator showed special cruelty related to both the method of murder and other circumstances.

When assessing the circumstances concerning the method of causing death, it should be borne in mind that with extreme cruelty, the perpetrators intentionally commit acts that cause the victim special physical or moral torment and suffering. There is a sign of special cruelty, in particular, in cases where, before committing a murder or in the process of committing it, the victim was tortured, tortured or mocked, or when the murder was committed in a way that is obviously associated with causing the victim special torment and suffering (for example, beating the victim before death or large the number of wounds, torturing him for a long time, using a particularly painful poison, burning him alive, leaving him in the cold without warm clothes, and depriving a person of food for a long time, water for the purpose of his death, etc.).

The multiplicity of wounds inflicted during the execution of the objective side of the murder does not in itself constitute grounds for qualifying the act under paragraph 5) of the second part of Article 99 of the Criminal Code, unless it is established that the murder was committed with the aim of causing the victim special torment and suffering. The nature and severity of the injuries inflicted does not matter for the recognition of a murder committed with particular cruelty.

Special cruelty can also be expressed in the commission of a murder in the presence of persons close to the victim. Not only the persons referred to in paragraph 11) of Article 7 of the CPC who are related to the victim may be recognized as close, but also other persons who, in connection with the established relationship with the victim, are such (spouses, persons in actual marital relations, the bride and groom, guardians, trustees and their wards, etc. etc.), which the victim values.

In such cases, when qualifying a murder on the basis of its commission with particular cruelty in the presence of persons close to the victim, it is necessary to establish not only the presence of these persons during the commission of his murder, but also the awareness of the perpetrator that he is committing a criminal offense in their presence and to establish his intention to cause them special moral torment and suffering..

The alternate murder of persons related to each other or in close relations in the presence of each other can be qualified as committed with special cruelty if the perpetrator wanted to inflict special moral torment and suffering on each of them before his death by killing loved ones in his presence.

A murder committed in the presence of the victim's relatives, but due to the established relationship between them, which the perpetrator was obviously aware of, they were not subjected to special moral torment and suffering, cannot be qualified under paragraph 5) of the second part of Article 99 of the Criminal Code.

Disfiguring a corpse or abusing it after committing a murder, provided that the perpetrator was aware of the actual occurrence of death (except in cases of dismemberment for the purpose of concealment), should be qualified independently under the relevant part of Article 314 of the Criminal Code, and what was done as a whole under the totality of criminal offenses, while qualifying the same actions under paragraph 5) of Part The second article 99 of the Criminal Code is not required.

The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

To qualify murder under paragraph 6) of the second part of Article 99 of the Criminal Code as committed in a manner dangerous to the lives of other people, it is necessary to establish that, while carrying out the intent to kill a certain person(s), the perpetrator realized that he was using a method that poses a real danger to the life and health of other people by explosion, arson, production shots fired in crowded areas , etc. At the same time, for such a qualification of murder, it is enough that the chosen method of murder is really dangerous to the lives of other people, whose murder was not covered by the perpetrator's intent, and it does not matter whether death or harm to the health of the endangered persons and their number were caused during the commission of the murder.

If two or more persons were killed while committing a murder in a manner dangerous to the lives of other people, liability shall arise under paragraphs 1) and 6) of the second part of Article 99 of the Criminal Code. In the case of causing death to one person and harm to the health of others, the act is qualified by the totality of criminal offenses, according to paragraph 6) of the second part of Article 99 of the Criminal Code and the relevant articles of the Criminal Code providing for liability for intentional harm to health.

The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

According to paragraph 7) of the second part of Article 99 of the Criminal Code, murder committed by two or more perpetrators, as well as committed by prior agreement between the perpetrator and other participants in a criminal offense, is subject to qualification.

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 a criminal offense who acted without prior agreement.

If the persons agreed in advance to commit a criminal offense together, and then each of them participated in its implementation, then the murder should be recognized as committed by a group of persons by prior agreement, regardless of whether they were all co-perpetrators or whether the form of complicity of any of them in the commission of a criminal offense was different (organizers, instigators, accomplices).

The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

A murder committed by a stable group of people who have previously united to commit one or more criminal offenses should be recognized as committed by a criminal group. At the same time, the organizer and the head of a criminal group are liable for both the creation of a criminal group and its leadership, and the participants as for participation in a criminal group, according to the relevant parts of the articles. 257, 262, 263, 264, 265, 267, 268 The Criminal Code, depending on the forms of the criminal group, and for murder under the paragraph 15) the second part of Article 99 of the Criminal Code, in which each of them was directly involved. At the same time, the organizer and the head of a criminal group are liable under the totality of the above-mentioned articles of the criminal law and in the event that the commission of murder by other members of the criminal group was covered by their intent.

The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Murder committed for the purpose of obtaining material benefits for oneself or others (property rights, housing rights, etc.) or in order to get rid of material costs (repayment of property, debt, payment of services, payment of alimony, fulfillment of material obligations and payments, etc.) is subject to qualification under paragraph 8) of the second part of Article 99 Criminal code as committed for selfish reasons.

The actions of a person who committed murder for remuneration should also be qualified under paragraph 8) of the second part of Article 99 of the Criminal Code as murder for hire, and the actions of a person who organized this murder or persuaded the perpetrator to commit murder for remuneration, under part three or four of Article 28 of the Criminal Code and paragraph 8) of the second part of Article 99 of the Criminal Code.

If the perpetrator's intent was to commit robbery or extortion and in the process of committing these criminal offenses, when using violence against the victim, the perpetrator intentionally deprived him of life, then the deed should be qualified as a set of criminal offenses under paragraph 8) of the second part of Article 99 of the Criminal Code and the corresponding part of Article 192 of the Criminal Code or Article 194 of the Criminal Code.

When qualifying a murder for hire involving robbery or extortion, an additional imputation of a qualifying attribute is not required - the commission of a murder for mercenary motives.

If the intent to seize property arose after causing death and a selfish purpose was not the motive for the murder, then the actions of the perpetrator related to the seizure of the victim's property after depriving him of his life should be qualified under articles of the Criminal Code providing for liability for criminal offenses against other people's property, and murder - under the relevant part of Article 99 of the Criminal Code, depending on the availability of qualifying signs.

Intentional unlawful infliction of death in order to conceal an assault or extortion committed against the victim after the specified criminal offenses is subject to qualification according to the norm of the criminal law providing for responsibility for the deed, and according to paragraph 10) of the second part of Article 99 of the Criminal Code.

The actions of the organizer of the murder for hire, if the perpetrator of the murder hired by him did not knowingly intend to cause the death of the victim and his actions did not go beyond the imitation of murder under the control of law enforcement agencies, then the actions of the person in search of the perpetrator of the murder for hire form preparation for the commission of murder for hire and are subject to qualification under part three of Article 28, part one of Article 24 and paragraph 8) of the second part of Article 99 of the Criminal Code.

The footnote. Paragraph 14, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).

It is necessary to distinguish between murder for hooligan motives and murder committed on the basis of personal hostility, committed during a quarrel or fight. When resolving this issue, it is necessary to clarify and take into account the relationship between the perpetrator and the victim, the cause and cause of the conflict, identify who was its instigator, the activity and nature of the actions of both, and other circumstances.

According to paragraph 9) of the second part of Article 99 of the Criminal Code, murder committed on the basis of obvious disrespect for society, gross violation of the norms of morality and morals, when the behavior of the perpetrator is an open challenge to public order and is conditioned by the desire of the perpetrator to contrast himself with others, to show his sense of superiority or disregard for them. Often, such a murder is committed for no apparent reason or using an insignificant reason as an excuse for murder.

If, when committing the murder of one person for hooligan motives, the perpetrator intentionally caused serious or moderate harm to the health of other persons, then the acts committed as a whole should be classified according to the totality of criminal offenses under paragraph 9) of the second part of Article 99 of the Criminal Code and the relevant articles of the Criminal Code providing for liability for causing harm to health, indicating the qualifying the sign is for hooligan motives.

Hooligan acts committed both before and after a murder committed for hooligan motives, and not related to it with a single intent, should be qualified independently under the relevant part of Article 293 of the Criminal Code.

It cannot be considered as murder committed for hooligan motives, causing serious or moderate harm to health only in connection with their commission in a public place or in the presence of unauthorized citizens, if the motive for their commission was, 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.

The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Murder, the motive of which was the desire to facilitate the commission of a new crime by depriving the victim of his life or to conceal a crime previously committed by the murder subject or another person, should be qualified under paragraph 10) of the second part of Article 99 of the Criminal Code and the norm of the criminal law providing for responsibility for a crime committed by the perpetrator before or after the murder in fulfillment of his intent. When establishing the specified motive for murder, it does not matter whether a concealed crime has been committed against the victim himself or against other persons or another crime is expected to be committed, which category of severity this crime belongs to, the time and method of committing these crimes, whether the subject of the murder or other persons committed the concealed crime or intend to commit a new crime after the murder whether a report has been received to the relevant authorities about the concealed crime committed, and whether the perpetrator has achieved his goal as a result of the murder.

The qualification of murder as committed with the aim of concealing another crime or facilitating its commission excludes the possibility of simultaneous qualification of the same murder on points. 2), 8), 9), 11), 12) the second part of Article 99 of the Criminal Code, which provides for other motives and motives.

Causing death, if it was committed in order to conceal or facilitate the commission of a criminal offense, cannot be qualified on the basis provided for in paragraph 10) of the second part of Article 99 of the Criminal Code, since this qualifying feature can only occur in the case of murder committed to conceal another crime or facilitate its commission.

The footnote. Paragraph 16, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).

Murder involving rape and violent acts of a sexual nature should be understood as the intentional infliction of death on the victim(s) committed during an attempt to commit these criminal offenses or in the process of their commission.

Unlawful intentional infliction of death on the victim(s), committed in the process of rape or sexual violence or attempted commission of these criminal offenses, as well as after the end of forced sexual intercourse, sexual violence in order to conceal the deed, or motivated by revenge for resistance, should be qualified collectively under paragraph 10) of the part the second article 99 of the Criminal Code and the corresponding part of Article 120 of the Criminal Code or 121 of the Criminal Code. Qualifying these actions of the perpetrators under paragraph 10) of the second part of Article 99 of the Criminal Code, the body conducting the criminal proceedings must indicate all other qualifying features established in the case, provided for in other paragraphs of the second part of Article 99 of the Criminal Code and the relevant parts of articles 120 of the Criminal Code or 121 of the Criminal Code.

Intentional infliction of rape or sexual violence, or an attempt to commit these criminal offenses, minor or moderate harm to the health of the victims, as well as negligent infliction of serious harm to the health or death of the victims, is covered by the disposition of Articles 120 or 121 of the Criminal Code, respectively, and does not require additional qualifications.

The severity of the damage caused to health is established on the basis of an expert opinion obtained in accordance with the Rules for the Organization and Conduct of Forensic examinations and Research in Forensic examination bodies, approved by Order of the Minister of Justice of the Republic of Kazakhstan dated April 27, 2017 No. 484 (hereinafter referred to as the Rules for the Organization and Conduct of Forensic Examinations and Research).

The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When qualifying a murder under paragraph 11) of the second part of Article 99 of the Criminal Code, evidence must be established confirming that the perpetrator acted motivated by social, national, racial, religious hatred or enmity or motivated by blood feud. In particular, it should be clarified whether the perpetrator belongs to the group of the population that recognizes the custom of blood feud, whether there was a murder of a person before the commission of this criminal offense, whether the perpetrator was related to him, from what sources he became aware that the violent deprivation of his relative's life was committed by the victim or his relatives, and other circumstances. Blood feud, as a motive for murder, which serves as the basis for qualifying murder on this qualifying basis, should be distinguished from murder, which was committed on the basis of personal hostility that arose in connection with the previous murder of a relative of the perpetrator.

When qualifying a murder committed in connection with social, national, racial or religious hatred or enmity, it should be established that it was the victim's belonging to a certain part of the population and his religion that motivated the commission of a criminal offense. At the same time, to qualify murder under paragraph 11) of the second part of Article 99 of the Criminal Code, it is sufficient to establish that a hostile or hateful attitude was expressed towards a specific person who was the victim of a criminal offense, or even towards an indefinite circle of people of a different faith, nationality, occupying a certain social position in society, to which the victim belonged.

The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

It is necessary to distinguish premeditated murder committed for the purpose of using human organs and tissues from causing death by negligence by forcing a person to remove his organs and tissues or as a result of forcible removal of organs and tissues from him, responsibility for which is provided for respectively by part three of Article 106 of the Criminal Code and part three of Article 116 of the Criminal Code.

The act is subject to qualification under paragraph 12) of the second part of Article 99 of the Criminal Code in cases where the intent of the perpetrator is aimed at killing the victim, and the motive for its commission is the purpose of using organs or tissues of the murdered person. Any organs and tissues of a person, including those that are not objects of transplantation, can be the subject of this offense. Such a goal implies the intention to use them for both medical and other purposes (for example, cannibalism). At the same time, for the qualification of murder on this qualifying basis, it does not matter whether the organs and tissues of the murdered person were actually used after the murder.

The footnote. Paragraph 19 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

The qualifying attribute provided for in paragraph 13) of the second part of Article 99 of the Criminal Code (murder committed repeatedly) is subject to imputation in cases where the perpetrator committed two or more acts provided for in Article 99 of the Criminal Code, for none of which he was convicted or was not released from criminal liability on the grounds established by law..

The organizers, instigators, and accomplices of the murder are liable under paragraph 13) of the second part of Article 99 of the Criminal Code only in cases where they knowingly knew that the perpetrator of the murder had circumstances related to the repeated commission of the murder.

If a person has committed several murders (except for the acts provided for in Articles 100, 101, 102, 103 of the Criminal Code) that are not united by a single intent, and has not been convicted of any of them, and if the statute of limitations for criminal prosecution for the previous murder has not expired, then all the acts are in accordance with the requirements of part the fourth part of Article 12 of the Criminal Code is subject to qualification under paragraph 13) of the second part of Article 99 of the Criminal Code (if there are grounds and other relevant paragraphs). At the same time, a separate qualification of the first murder committed at the time is not required under part one or part two of Article 99 of the Criminal Code.

In the case of murder and attempted murder, in the absence of a single intent to cause death to two persons, the actions of the perpetrator are subject to qualification, taking into account the clarifications of paragraph 19 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 11 "On the qualification of repeated and cumulative criminal offenses."

It is necessary to distinguish murder committed repeatedly from the murder of two or more persons according to the subjective side of the criminal offense: if each of the murders forming a repetition was covered by an independent intent, the acts are subject to qualification under paragraph 13) of the second part of Article 99 of the Criminal Code; when the intention of the perpetrator was unified and initially aimed at intentionally, unlawfully causing death to two or more persons. More specifically, the acts should be qualified under paragraph 1) of the second part of Article 99 of the Criminal Code.

The court has the right to reclassify the actions of the perpetrator from paragraph 1) to paragraph 13) of the second part of Article 99 of the Criminal Code, or vice versa.

The footnote. Paragraph 20 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).

20-1. To qualify murder under paragraph 14) of the second part of Article 99 of the Criminal Code, it is necessary to establish that the perpetrator was aware of the victim's minor age before committing the criminal offense. At the same time, it should be borne in mind that, in accordance with the requirements of part three of Article 6 of the Criminal Code, this qualifying feature cannot be attributed to a person accused of murder committed before the enactment of the law establishing this feature (before December 8, 2010).

The footnote. The Resolution was supplemented by paragraph 20-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

20-2. According to subparagraph 2) of Article 4 of the Law of the Republic of Kazakhstan dated February 8, 2003 No. 387 "On the state of emergency", one of the circumstances serving as the basis for the introduction of a state of emergency is an emergency caused by an epidemic. The existence of an emergency situation in the Republic of Kazakhstan in connection with the declaration by the World Health Organization of the new coronavirus COVID-19 as a pandemic was recognized by Decree of the President of the Republic of Kazakhstan dated March 15, 2020 No. 285 "On the introduction of a state of emergency in the Republic of Kazakhstan" and Decrees of the President of the Republic of Kazakhstan dated April 14, 2020 No. 306 and April 29, 2020 No. 310 "On the extension of the state of emergency in the Republic of Kazakhstan." There are no other regulatory legal acts on the existence of an emergency situation in the Republic of Kazakhstan in connection with the epidemic.

In this regard, according to paragraph 15) of the second part of Article 99 of the Criminal Code, acts committed between 08:00 on March 16, 2020 and 00:00 on May 11, 2020, that is, during the period of the state of emergency imposed by Presidential Decrees on the territory of the Republic of Kazakhstan, are subject to qualification on the basis of murder committed in an emergency situation. Of the Republic of Kazakhstan dated March 15, 2020 No. 285, April 14, 2020 No. 306 and April 29, 2020 No. 310.

The footnote. The regulatory resolution was supplemented by paragraph 20-2 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

20-3. The murder of a minor, including under the circumstances specified in paragraphs two of Article 99 of the Criminal Code, is subject to qualification only under part three of Article 99 of the Criminal Code.

The commission of the murder of a minor and another person who was not a minor with one intent should be qualified in accordance with the totality of part three of Article 99 and paragraph 1) of part two of Article 99 of the Criminal Code.

The murder of a minor and a person who is not a minor, if each is committed with independent intent, should be classified as a set of crimes. At the same time, the sign of repetition is imputed when qualifying an act under the second part of Article 99 of the Criminal Code in the event that it was committed after the murder of a minor.

In accordance with the provision on the retroactive effect of the criminal law (part three of Article 6 of the Criminal Code), the murder of a minor committed before January 11, 2020, is subject to qualification under paragraph 14) of part two of Article 99 of the Criminal Code.

The footnote. The regulatory resolution was supplemented by paragraph 20-3 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

When qualifying the same murder on several qualifying grounds, it should be borne in mind that the simultaneous imputation of qualifying grounds provided for in paragraphs 2), 8), 9), 10), 11), 12) the second part of Article 99 of the Criminal Code is not allowed.

The footnote. Paragraph 21 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

The acts provided for in the fourth part of Article 255 of the Criminal Code are fully covered by this provision of the criminal law. At the same time, these actions do not require additional qualifications under articles providing for liability for criminal offenses against a person.

The footnote. Paragraph 22 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

An attempt on the life of a person carrying out justice or a pre-trial investigation of a case committed in order to obstruct his legitimate activities or to avenge such activities should be qualified under article 408 of the Criminal Code. If the attack on the life of these persons was committed for other reasons and is not related to the performance of their official duties, the act should be qualified according to the relevant part of Article 99 of the Criminal Code, depending on the presence of qualifying signs.

The murder of a person who did not actually administer justice or investigate a case, but presented himself as guilty and performed actions aimed at protecting public order, should be qualified under paragraph 2) of the second part of Article 99 of the Criminal Code.

The footnote. Paragraph 23 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Murder committed by a person serving a custodial sentence or being held in custody in connection with a chosen preventive measure, during the disorganization of the normal activities of an institution of the penal system that ensures their isolation from society, or by a participant in mass riots, as well as in excess of power or official authority, is not covered by articles of the Criminal Code providing for liability for the commission of these criminal offenses, therefore, it must be qualified independently under the relevant part of Article 99 of the Criminal Code., and all the actions of the perpetrator are subject to qualification according to the totality of criminal offenses.

The footnote. Paragraph 24 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When qualifying murder under Article 100 of the Criminal Code, it should be borne in mind that responsibility under this article occurs if a mother commits murder of her newborn child during childbirth or immediately after childbirth or in the subsequent period.

A traumatic situation in such cases should be recognized as significant circumstances that negatively affect the mental state of the woman who gave birth (for example, the father's rejection of the child, the condemnation by relatives of the birth of a child out of wedlock, the refusal of the child's father or the woman's relatives to provide financial assistance for the existence of the mother and child, etc.).

A woman's mental disorder after the birth of a child is characterized, as a rule, by negative processes in her mental activity (depression, feelings of fear, manic moods, etc.). To establish a woman's sanity or insanity in connection with these disorders, it is necessary to conduct a forensic psychological and psychiatric examination.

When qualifying an act under Article 100 of the Criminal Code, the newborn child should be taken into account, which is determined in accordance with pediatric criteria by a forensic medical examination. The murder of a child after the expiration of his newborn period cannot be qualified under Article 100 of the Criminal Code, responsibility in such cases comes under Article 99 of the Criminal Code.

The footnote. Paragraph 25 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

To qualify an act under Article 101 of the Criminal Code, a necessary condition is that the perpetrator has a physiological affect, its suddenness and its connection with the actions of the victim.

Liability under Article 101 of the Criminal Code arises only when the affect is caused by violence, bullying or serious insult on the part of the victim or other illegal or immoral actions (inaction) of the victim (causing death or harm to the health of loved ones, their rape, suicide, arbitrariness, abuse of office, etc.), as well as prolonged traumatic a situation where a strong emotional disturbance arose as a result of the systematic illegal or immoral behavior of the victim., from his repeated illegal actions (systematic beatings, torture), the last of which was the reason for the murder.

At the same time, it does not matter whether these illegal actions were committed against the perpetrator himself or against persons close to him.

An affective state is a short-term, intense emotion that occupies a dominant position in the mind of the perpetrator while maintaining his ability to self-control and the ability to act in connection with the reason that caused the affect. The long period of time between the actions of the victim and the response of the perpetrator precludes the application of Articles 101 of the Criminal Code or 111 of the Criminal Code.

To clarify the question of whether the perpetrator was in a state of passion and for how long, it is necessary to conduct a forensic psychological and psychiatric examination.

Murder or intentional infliction of bodily harm committed in a state of passion, even if there are qualifying signs specified in part two of Article 99 of the Criminal Code and in part two of Article 106 of the Criminal Code, should be qualified under articles 101 of the Criminal Code or 111 of the Criminal Code.

The footnote. Paragraph 26 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Unlawful intentional infliction of death on another person must be distinguished from causing death by negligence, which cannot be qualified under Article 99 of the Criminal Code, since it is committed as a result of criminal arrogance (when a person, committing an act, foresees the possibility of death of the victim, but frivolously, without any reason, expects to prevent it) or criminal negligence (when the perpetrator does not foresee the possibility of the victim's death from his actions, although, according to the circumstances of the case, he could and should have foreseen).

At the same time, it should be borne in mind that causing death as a result of criminal arrogance and unlawful intentional infliction of death on another person, committed with indirect intent, differ from each other on the subjective side. With criminal arrogance, the perpetrator only anticipates the possibility of death and thoughtlessly counts on its prevention, and with indirect intent, he foresees not only the possibility, but also the likelihood of death, although he does not want to, but consciously allows it to occur or treats such a consequence of his actions indifferently, without taking any measures to prevent death. the victim.

Causing death by negligence is subject to qualification under Article 104 of the Criminal Code. If causing death by negligence is indicated in the relevant article as a qualifying feature of a criminal offense, then the deed is subject to qualification under the relevant article, which provides for responsibility for the committed criminal offense with the imputation of this qualifying feature. At the same time, additional qualifications under Article 104 of the Criminal Code are not required.

Causing death by negligence should be distinguished from innocent causing of death, for which responsibility is excluded in accordance with Article 23 of the Criminal Code (when, for example, a person could not and should not have foreseen the death of another person, or when he foresaw and took all necessary measures, in his opinion, to prevent its occurrence, but death occurred due to for reasons beyond his control).

The footnote. Paragraph 27 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Causing death by negligence, as well as causing serious, moderate or minor harm to health when using torture, is covered by the disposition of the relevant parts of Article 146 of the Criminal Code and additional qualifications under articles 104, 106, 107 of the Criminal Code are not required.

If death was intentionally inflicted on the victim during the use of torture, the act is subject to qualification according to the totality of criminal offenses under the relevant parts of Articles 146 of the Criminal Code and 99 of the Criminal Code, depending on the presence of qualifying signs of each criminal offense.

The footnote. Paragraph 28 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).

According to the disposition of Article 105 of the Criminal Code, a prerequisite for responsibility for driving to suicide is the presence of threats, systematic humiliation of human dignity, facts of ill-treatment, harassment or bullying of the perpetrator against the victim, a causal link between these actions of the perpetrator and the victim committing suicide. If it is established that the victim was financially or otherwise dependent on the perpetrator, the act should be qualified under the second part of Article 105 of the Criminal Code. If it is established that the above actions were committed against a minor, the act should be qualified under part three of Article 105 of the Criminal Code.

The subjective side of driving to suicide is characterized by intent in the commission of the above actions and is expressed in the form of negligence to a criminal result. When the above actions are committed by the perpetrator with intent to cause death to the victim by driving him to suicide and he desires such a result, the deed should be qualified as premeditated murder under the relevant part of Article 99 of the Criminal Code.

If a person is driven to attempt suicide, the act is qualified under the relevant part of Article 105 of the Criminal Code without reference to the third part of Article 24 of the Criminal Code.

The footnote. Paragraph 29 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).

It is necessary to distinguish the unlawful intentional infliction of death on a person from other intentional criminal offenses involving serious injury to health, resulting in death by negligence, to determine the direction of the perpetrator's intent, his subjective attitude to the results of his actions - the death of the victim.

When determining the subjective side of a criminal offense and the form of guilt, it is necessary to proceed from the totality of all the circumstances of the committed criminal offense, take into account, in particular, the nature of the relationship between the perpetrator and the victim, the method of commission and instrument of the criminal offense, the number, nature and localization of wounds and other bodily injuries, the reason for the termination of illegal actions by the subject of the criminal offense, etc., as well as his behavior before and after committing a criminal offense.

If it is established that the perpetrator acted with direct or indirect intent, was aware of the illegality of his actions, foresaw the onset of a socially dangerous consequence in the form of death of a person and desired this (with direct intent) or deliberately allowed such an outcome of his actions and treated it indifferently (with indirect intent), the act is subject to qualification under the relevant part of Article 99. of the Criminal Code (except in cases of causing death under the circumstances provided for in Articles 100, 101, 102, 103 of the Criminal Code).

If it is established that the perpetrator, while committing an intentional criminal offense, was aware of the illegality of his actions and foresaw the possibility of death to the victim, but his attitude to such a consequence is characterized by negligence, then the actions of the perpetrator are subject to qualification under part three of Article 106 of the Criminal Code, which provides for liability for intentional infliction of serious harm to health, resulting in death by negligence.

The occurrence of the victim's death not immediately after the commission of the crime, but some time after the attack on his life, does not affect the qualification of the perpetrator's actions as murder, if the perpetrator's intent (direct or indirect) to cause death and the presence of a causal relationship between the act and the resulting consequence are established.

The footnote. Paragraph 30 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).

Harm to human health should be understood as an unlawful violation of the anatomical integrity of human body tissues or other actions that have caused damage to organs or disruption of their normal functioning.

The severity of harm to health is determined by conducting a forensic medical examination in accordance with the Rules for the Organization and Conduct of forensic examinations and Research. Conducting such an examination in accordance with article 271 of the CPC is mandatory, and its conclusions are subject to thorough investigation and evaluation in conjunction with other evidence.

When qualifying serious harm to health caused by the qualifying criteria specified in part two of Article 106 of the Criminal Code, it should be borne in mind that they correspond in meaning to the same criteria specified in part two of Article 99 of the Criminal Code.

The footnote. Paragraph 31 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When imposing penalties for criminal offenses against human life and health, courts should take into account the totality of all the circumstances in which they were committed: the type of intent, motives and purpose, method, environment and stage of commission of the criminal offense, the severity of the consequences, the identity of the perpetrator, the presence of mitigating and aggravating circumstances and punishment.

At the same time, it should be borne in mind that when qualifying an act according to several qualifying criteria specified in the paragraphs of the dispositions of the relevant articles of the Criminal Code, punishment is imposed not for each paragraph separately, but once for the relevant part of the article of the Criminal Code.

The footnote. Paragraph 32 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).

To invalidate Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan No. 7 of 1994 "On the application by courts of legislation regulating liability for attacks on the life and health of citizens" (as amended by Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan No. 11 of December 20, 1996 and regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 12 of December 25 2006).

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

Judge of the Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases

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