The orientation of the intent to murder indicates the presence of hooliganism in the actions of the convicts with the use of traumatic weapons, a criminal group

By the verdict of the judicial board for criminal cases of the Nur-Sultan City Court dated September 10, 2019: R., who had no previous criminal record, was sentenced under part 1 of Article 262 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 7 years in prison, under part 3 of Article 24, paragraphs 6), 15) of part 2 of Article 99 to 10 years of imprisonment, paragraphs 1), 2) of part 3 of Article 293 of the Criminal Code to 4 years of imprisonment, under part 2 of Part 287 of the Criminal Code to a fine of 1,000 monthly calculation indices (hereinafter – MCI). Based on part 4 of Article 58 of the Criminal Code, by partially adding up the penalties imposed, 10 years and 6 months of imprisonment were finally imposed, while serving his sentence in an institution of the maximum security penal system. T., who had no previous criminal record, was sentenced to 5 years in prison under part 2 of Article 262 of the Criminal Code, under part 3 of Article 24, paragraphs 6), 15) of part 2 of Article 99 of the Criminal Code to 10 years in prison, paragraphs 1), 2) of part 3 of Article 293 of the Criminal Code to 3 years in prison, under part 2 of Article 287 of the Criminal Code to a fine of 1,000 MCI. Based on part 4 of Article 58 of the Criminal Code, by partially adding up the penalties imposed, 10 years and 1 month of imprisonment were finally imposed, to be served in an institution of the maximum security penal system. A., who had no previous criminal record, was sentenced under part 2 of Article 262 of the Criminal Code to 5 years in prison, under part 3 of Article 24, paragraphs 6), 15) of part 2 of Article 99 of the Criminal Code to 10 years in prison, paragraphs 1), 2) of part 3 of Article 293 of the Criminal Code to 3 years in prison, under part 2 of Article 287 of the Criminal Code to a fine of 1,000 MCI. Based on part 4 of Article 58 of the Criminal Code, by partially adding up the penalties imposed, 10 years and 1 month of imprisonment were finally imposed, to be served in an institution of the maximum security penal system. K., who had no previous criminal record, was sentenced to 5 years in prison under part 2 of Article 262 of the Criminal Code, under part 3 of Article 24, paragraphs 6), 15) of part 2 of Article 99 of the Criminal Code to 10 years in prison.

The orientation of the intent to murder indicates the presence of hooliganism in the actions of the convicts with the use of traumatic weapons, a criminal group

Based on part 4 of Article 58 of the Criminal Code, by partially adding up the imposed punishments, 10 years and 1 month of imprisonment were finally imposed, while serving the sentence in an institution of the maximum security penal system. The same verdict convicted E., N. and T., in respect of which judicial acts are not appealed. By the verdict of appeal, R., T., A., K. were found guilty of committing the following crimes. R. On September 14, 2014, in the VIP ROOM nightclub, using violence and traumatic weapons against the victims, U. and A. committed particularly malicious hooliganism. R. In 2012, he created and led an organized criminal group, and T., A., K., E., N., and T. participated in it. On the night of September 3 to 4, 2016, R., T., A., K. attempted to murder victim A. at the Joy nightclub in a manner dangerous to the lives of other people by a criminal group. On September 10, 2016, R. together with T., A., E., N. and J. During repeated actions by the criminal group, he committed particularly malicious hooliganism, which resulted in the firing of a Lada Priora car with traumatic weapons, assuming that the victim A. was in it, while police officers M. and Kh. were in the car, who received minor injuries as a result of this shelling. In addition, R., T., A., E., N., and T. illegally acquired, stored, transported, and carried weapons with traumatic cartridges. By the decision of the Judicial Board for Criminal Cases of the Supreme Court dated November 24, 2020, the verdict of the judicial board for criminal cases of the Nur-Sultan City Court dated September 10, 2019 remained unchanged. The protest of the Prosecutor General and the petitions of lawyer N., defenders R., K., A. and M., were left without satisfaction. In his submission, the Chairman of the Supreme Court believes that judicial acts against convicts R., T., A. and K. are subject to review due to a violation of uniformity in the interpretation and application of legal norms by the courts. In the petition, the defender M. In the interests of the convict, R., having supported the arguments of the submission, requests that part 1 of Article 262 of the Criminal Code, that is, the creation and leadership of an organized group, be excluded from the charge.

The court's conclusions on the proven guilt of convicts R., T., A. and K. in the crimes charged against them under the circumstances set out in the verdict are based on evidence objectively examined and properly evaluated at the court session and correspond to the actual circumstances of the case. The court qualified R.'s actions under part 1 of Article 262, paragraphs 1), 2) of part 3 of Article 293, part 2 of Article 287 of the Criminal Code, T. – under part 2 of Article 262, paragraphs 1), 2) of part 3 of Article 293, part 2 of Article 287 of the Criminal Code, A. – under part 2 of Article 262 of the Criminal Code. As for the arguments of the defender R. that the convict R. He did not create or lead an organized group, and the board considers them unfounded. The totality of the evidence examined by the court objectively established that R. created and led an organized group, and T., A. and K. participated in it. On the night of September 10, 2016, this criminal group, without K.'s participation, committed malicious hooliganism against police officers, where each of them performed their assigned role. In such circumstances, the court came to a reasonable conclusion that R.'s guilt in creating and leading an organized group was proven, and T., A. and K. – participation in it, and correctly qualified their actions under Article 262 of the Criminal Code, depending on their role. At the same time, the court's conclusions about the guilt of R., T., A. and K. in the attempted murder of victim A. under aggravating circumstances are not supported by a set of sufficient and reliable evidence. According to paragraph 3) of part 1 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force, specified in part one of Article 484 of this Code, are violations of constitutional rights and freedoms of citizens committed during the investigation or judicial review of a case or the improper application of criminal and the criminal procedure laws that led to an incorrect qualification of the convicted person's act. There are such violations in the case. According to the episode of attempted murder of victim A. The pre-trial investigation body has not established a sufficient body of evidence that the intent of the convicts was aimed at causing the death of the victim. It follows from the case file that the shots at the victim were fired from traumatic pistols loaded with rubber bullets. A traumatic pistol is a hand–held short-barreled firearm or gas-powered traumatic weapon, usually designed for self-defense at a short distance. The verdict stated that death did not occur due to the fact that the victim was covering his head with his hands.

Meanwhile, according to the conclusion of the forensic medical examination, three bullets hit the victim's head, as a result of which he was slightly injured. Under such circumstances, it must be assumed that the victim escaped death not because he covered his head with his hands, but because of the insufficient striking force of the weapon used. It follows from the testimony of witnesses under the pseudonyms "C" and "K" that the participants in the attack intended to "shoot" at A. There is no information about the intention of the latter to commit murder in the testimony of these witnesses. The distance from which A. was shot, namely 1-1.5 meters, is taken from the victim's words. There is no other information about the distance of the shots in the case file. It follows from the verdict on the episode in the VIP ROOM nightclub that R., A., U. and unidentified persons struck E. and fired one shot from a traumatic weapon into the latter's head area, causing him minor injury in the form of a bruised wound to the occipital region. Their actions are qualified under paragraph 2) of part 3 of Article 293 of the Criminal Code as hooliganism. That is, similar actions are qualified under different articles of the criminal law. Thus, the nature of the weapon used, namely a traumatic pistol loaded with rubber bullets, the consequences of the shots in the form of minor injury to health, the lack of evidence indisputably confirming the intent of those convicted of murder, indicates the presence of hooliganism in their actions with the use of traumatic weapons by a criminal group, and not an attempt at premeditated murder. In such circumstances, the judicial board concludes that the judicial acts in respect of R., T., A. and K. subject to change, their actions should be reclassified from part 3 of Article 24, paragraphs 6), 15) of part 2 of Article 99 of the Criminal Code to paragraphs 1), 2) of part 3 of Article 293 of the Criminal Code, according to which punishment is imposed in the form of imprisonment, in accordance with the sanction of this provision of the criminal law. At the same time, the acts of R., T., A. and K. in all episodes of hooliganism committed by them should qualify only once under paragraphs 1), 2) of part 3 of Article 293 of the Criminal Code, taking into account all qualifying features. Punishment of R., T., A. and K. According to the totality of criminal offenses, it is necessary to appoint, in accordance with part 3 of Article 3 of the Criminal Code, by absorbing a less severe punishment with a more severe one, since the collegium considers the application of this principle of punishment sufficient and proportionate to the deed. In accordance with part 5 of Article 46 of the Criminal Code of R., T., A. and K., an institution of a medium-security penal system should be appointed to serve imprisonment.

The orientation of the intent to murder indicates the presence of hooliganism in the actions of the convicts with the use of traumatic weapons, a criminal group

According to part 3 of Article 62 of the Criminal Code, it is necessary to set off in the term of punishment of R., T., A. and K. the time of their detention before the sentence enters into force at the rate of one day per one and a half days of serving their sentence in a medium-security institution. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of the local courts in respect of R., T., K. and A. under part 3 of Article 24 and as a result: - R.'s actions were reclassified from paragraphs 6), 15) of part 2 of Article 99 to paragraphs 1), 2) of part 3 of Article 293 of the Criminal Code, for which a sentence of 4 years in prison was imposed. It was decided to consider R. sentenced under part 1 of Article 262 of the Criminal Code to 7 years in prison, under paragraphs 1), 2) of part 3 of Article 293 of the Criminal Code (for all episodes of hooliganism) to 4 years in prison, under part 2 of Article 287 of the Criminal Code to a fine of 1,000 MCI. On the basis of part 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment with a more severe one, R. 7 (seven) years of imprisonment were finally imposed, while serving the sentence in an institution of the medium-security penal system. 

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