The commission of a crime by a participant in a crime that was not in the minds of other participants is recognized as his excesses. For excesses, other participants are not subject to criminal liability.
By the verdict of the specialized Inter-District Court for criminal cases of South Kazakhstan region dated July 10, 2012: S., previously not convicted, for 4 years with Part 2 of Article 251 of the Criminal Code, Part 2 of Article 28, Part 3 of Article 179 with confiscation of property under Paragraph "B" for 10 years, Part 5 of Article 28,Part 2 of Article 96 with confiscation of property under paragraphs "Z, Z" for 16 years, Part 2 of Article 28,Article 175 2-with the confiscation of property by paragraphs "A, B" of the part to imprisonment for 4 years, with the confiscation of final property by Part 4 of Article 58 of the Criminal Code to imprisonment for 17 years, sentenced to serve his sentence in a strict disciplined correctional colony. Also, 13 people were convicted under this sentence. Convicted by a court verdict E., S., B. for illegal possession, transportation and carrying of firearms as part of a group of persons who conspired in advance; S. convicted in this case B. and D. for assisting in the murder of the victim I. with selfish motives, acting in one criminal act, as well as E., S., B. and ZH. are found guilty of participating in robbery and crimes against property by a group of persons who conspired in advance. The decision of the court was left unchanged by the decisions of the Appellate Judicial Board and the Cassation Judicial Board of the South Kazakhstan regional court. The defense of the convicted S., in disagreement with the decisions of the court, submitted an application to the supervisory Judicial Board of the Supreme Court, where the case was not examined in detail, the investigator interrogated the convicted S. by deception, violence, intimidation, indicating that the convicted S. was not involved in murder, illegal possession of weapons, robbery, reconsidering the criminal case, reducing the case due to the fact that the guilt on the charges has not been proven, re-qualifying his actions under Articles 363, 364 of the Criminal Code, mitigating circumstances he asked for a light sentence.
The commission of a crime by a participant in a crime that was not in the minds of other participants is recognized as his excesses. For excesses, other participants are not subject to criminal liability.
The supervisory Judicial Board of the Supreme Court examined the case documents and the arguments presented in the petition and changed the court decisions on the grounds below.The fact that S., convicted in the case, illegally seized and transported firearms as part of a group of persons who conspired, assisted in robbery with the aim of theft of property in large quantities, repeatedly assisted in the secret theft of other people's property as part of a group of persons who conspired, was investigated in the judicial investigation and found full evidence with a set of evidence correctly evaluated by the court of First Instance. The criminal activity of the convicted S. is properly differentiated by Part 2 of Article 251, Part 2 of Article 28, paragraph "B" of Part 3 of Article 179, Part 2 of Article 28, paragraphs "a,b" of Part 2 of Article 175. However, the conclusion of the court that S., convicted in this case, B. and D. Three, acting in one criminal act, helped to kill the victim I. with selfish motives, did not find its proof. According to the documents of the criminal case, during the preliminary investigation, convicted S. the victim responded by admitting that he participated in the robbery of I.'s house, that the victim was on the territory of the courtyard of the house at the time of the murder of I., and that he was tied up so that the victim would not resist. This answer was fully supported by the convicts. However, the convicted S. refused his answers during the confrontation, stating that the victim did not go to I.'s House and the courtyard of the house with other convicts, waiting next to the car. During the confrontation, the convict D. said that the field was dark, he did not see S. enter the House. Also convicted E. when he himself went outside during the robbery, S. confirmed that he was inside the car and did not enter the house where the robbery took place.
At the main trial, the convicted S. partially admitted the charges and indicated that he participated in the events of cattle thefts, and the victim did not participate in the robbery of I.'s House. The court did not take into account the fact that S. had no intention of murder, making the correct conclusion that S. was in the territory of the courtyard of the house at the time of the murder of the victim I. According to the requirement of Article 30 of the criminal code, the excesses of a participant in a crime are defined as the commission by a person of a crime that is not covered by the intentions of other participants. If the commission of a crime that goes beyond the general intention uses more dangerous means and weapons than intended in the conspiracy, then the blame for this is not placed on the shoulders of other participants. In such cases, they do not understand the real significance of a new crime or this crime, do not help to perform an uncoordinated particularly dangerous act of the performer, that is, exclude their responsibility for the excesses of the participant in the crime. The commission of a crime by a participant in a crime that was not in the minds of other participants is recognized as his excesses. For excesses, other participants are not subject to criminal liability. In the process of committing criminal acts, B. said that the victim should shoot I., and D. fulfilled the said word. However, no evidence recorded in the case does not prove that the convicted S. supported B. and D. During the entire period of the preliminary investigation, S. confirmed to B. that he did not come to the murder, that he did not agree to such an act. The court did not pay due attention to these indications of the convicted S. and incorrectly classified his actions as facilitating the commission of a murder crime. It is not established whether the convicted S. had intentions or actively participated in the murder. In accordance with paragraph 1 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 No. 1 on the qualification of certain crimes against the life and health of a person, in order to ensure the correct application of criminal law in the qualification of crimes against an individual and the imposition of fair punishment on persons who committed them, it is necessary to determine the form of guilt, the type of intent, the essence and purpose of committing a crime, the method, the state and stage of committing a crime, the severity of the consequences. Bodies conducting criminal proceedings must justify their conclusions in procedural documents with the provision of admissible evidence. In accordance with paragraph 2 of this normative resolution, when committing a crime by several persons, it is necessary to establish whether there was a preliminary conspiracy to commit a crime between them, whether the roles were allocated, what actions each of them committed at the time of committing a crime, as well as all other circumstances, and on the basis of which to draw conclusions, it is necessary to assign a fair punishment, differentiating their actions individually.
In the said criminal case, the supervisory judicial board changed the judicial acts due to the fact that S. had intent to commit murder, his participation in which was not proved by any evidence. In connection with the absence in the actions of S. of the corpus delicti in paragraphs "Z, Z" of Part 5 of Article 28,Part 2 of Article 96 of the criminal code, the criminal case under these articles was reduced. In the part convicted by Part 2 of Article 251, part 2 of Article 28, paragraph "B" of Part 3 of Article 179, part 2 of Article 28, paragraphs "A,B" of Part 2 of Article 175, leaving the judicial acts unchanged, on the basis of Part 3 of Article 58 of the criminal code, the property was confiscated by partial addition of final sentences, sentenced to imprisonment for a period of 11 (eleven) years, serving a sentence in a correctional colony of a general order. Reference to judicial practice (March, 2013) Judicial Board of supervision for civil and administrative cases of the Supreme Court of the Republic of Kazakhstan Page 3 "Court of application of tax legislation".
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