Sexual inviolability of minors
By the verdict of the specialized interdistrict criminal Court of the North Kazakhstan region dated August 13, 2018: G., previously convicted on February 29, 2012 under part 3 of Article 257 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 5 years of restriction of liberty, on May 24, 2012, the unserved sentence was commuted to 4 years 3 months 6 days of imprisonment freedom, released on parole on December 29, 2015, - sentenced under paragraphs 3) and 4) of part 3 of Article 192 of the Criminal Code to 7 years in prison, under paragraph 8) of part 2 of Article 99 of the Criminal Code to 16 years in prison, under paragraph 3 of Article 24 and paragraph 3) of part 3 of Article 120 of the Criminal Code to 10 years in prison with deprivation of the right to hold teaching positions and positions related to work with minors for a period of ten years, on the basis of part 4 of Article 58 of the Criminal Code for a total of criminal offenses, are finally sentenced to 18 years in prison with deprivation of the right to hold teaching positions and positions related to work with minors., for a period of 10 years and serving a sentence in an institution of the maximum security penal system. By the verdict of the court, G. was found guilty of murdering M., coupled with robbery, and attempted rape of the obviously underage victim Z. By a resolution of the Judicial Board for Criminal Cases of the North Kazakhstan Regional Court dated October 26, 2018, the court's verdict against G. was changed: the actions of the convicted person were reclassified from part 3 of Article 24 and paragraph 3) of part 3 of Article 120 of the Criminal Code to part 1 of Article 122 of the Criminal Code, according to which he was sentenced to 3 years in prison; The punishment under paragraph 8) of part 2 of Article 99 of the Criminal Code was reduced to 15 years in prison; on the basis of part 4 of Article 58 of the Criminal Code, for a total of criminal offenses, the convicted person was finally sentenced to 16 years in prison and served his sentence in an institution of the maximum security penal system.
In the petition, the legal representative of the minor victim, considering the decision of the court of appeal to be illegal, asks to cancel it. The materials of the criminal case established that G., being intoxicated, with the aim of a robbery on May 9, 2018 at 4:30 a.m., broke a window and entered the house of M., who lived with her minor granddaughter Z. (born March 1, 2003). Having been discovered by M., G. committed her murder by stabbing her, after which he proceeded to the room of the minor Z. The latter, having woken up from the scream of her grandmother in the house, realizing that her grandmother had been killed, and afraid to get out of bed, hid under the covers. When he saw Z., G., in order to have sexual intercourse with her, undressed, lay down in her bed, where, against the victim's will, he began to take off her shorts and T-shirt. Minor Z. she resisted him and tried to hold her clothes on her body with her hands, and then, under the pretext that she needed to go outside to the toilet, she went outside with G.'s permission, and through her cell phone she asked A.'s friend for help. G., realizing that Z. She deceived him and would not return, ran out of the house half-naked, where A. tried to detain him. However, G. managed to escape and escape. In the circumstances of the case, the conclusions of the court of appeal that G.'s actions did not include any violence or threat of its use aimed at raping a minor, and the decision on the qualification of the convicted person's actions under part 1 of Article 122 of the Criminal Code are unfounded. Within the meaning of Article 122 of the Criminal Code, liability under this provision of the criminal law occurs for sexual intercourse or other acts of a sexual nature with a person under the age of sixteen, when the voluntary consent of the victim (victim) to commit sexual intercourse or other acts of a sexual nature is established. There was no such consent in this criminal case.
On the contrary, G., in order to engage in sexual intercourse with the minor victim against her will, began to use violence, tried to take off her shorts and T-shirt. The minor victim, due to her age (15 years) and fear of the convict who committed the murder of her grandmother, resisted him as much as possible – she tried to hold her clothes on her body with her hands. his intent to engage in forced sexual intercourse with a minor victim could not be completed due to circumstances beyond his control – the victim was fraudulently able to go outside and call for help. In such circumstances, the decision of the court of first instance to qualify G.'s actions in this part of the charge under Part 3 of Article 24 and paragraph 3) of part 3 of Article 120 of the Criminal Code as attempted rape of a known minor victim is correct. The actions of the convicted person under paragraphs 3) and 4) of part 3 of Article 192 and paragraph 8) of part 2 of Article 99 of the Criminal Code were also correctly qualified by the lower court. The measure of punishment imposed by the court of first instance on the convicted person is lawful and justified. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court overturned the decision of the appellate instance, upholding the decision of the court of first instance in respect of G. The petition of the legal representative of the minor victim was satisfied.
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