The participation of the defense counsel in the case does not exempt the preliminary investigation bodies and the court from the obligation of the suspect of the minor accused to involve the legal representative of the defendant in the case.
By the verdict of the Specialized Interdistrict court for criminal cases of the South Kazakhstan region dated January 15, 2013 N., previously not convicted, was found guilty by Part 1 of Article 96 of the Criminal Code of the Republic of Kazakhstan and sentenced to imprisonment for a period of 7 years and 6 months, serving a sentence in the general regime of a penal colony. According to the verdict of the court, the minor convicted N. in the course of a fight that arose as a result of a conspiracy, was found guilty of the murder of the minor Sh. He changed the verdict of the court and the decision of the Appellate Judicial Board of the South Kazakhstan regional court and re-ranked N.'s actions in paragraph "O" of Part 2 of Article 96 of the criminal code, imposing a sentence of 10 years in prison. The rest of the sentence and resolution are left unchanged. The lawyer and legal representative of the convicted N. indicated in the petition that they did not agree with the court decisions, canceled them and asked to impose a sentence of restriction of freedom for 2 years, classifying the actions of the convicted N. as actions committed while exceeding the limits of the necessary defense. Hearing the opinion of the defense attorney in support of the appeal, the conclusion of the prosecutor, studying the case documents and the arguments presented in the appeal, the Supervisory Board considers that the decisions of the court of Appeal and cassation are subject to violation on the following grounds.
The participation of the defense counsel in the case does not exempt the preliminary investigation bodies and the court from the obligation of the suspect of the minor accused to involve the legal representative of the defendant in the case.
In the course of the preliminary investigation and in the answers given at the main trial, the convicted N. pointed to a group of guys who beat and kicked him in a closed way and showed that he swung a knife in defense. The same summary was given by the responsible witnesses B., S., M., R. According to the conclusion of the forensic medical examination, traces of injuries were found on the shoulders of the convicted N. But the court of first instance did not give an adequate assessment of the specified circumstances. In accordance with paragraph 36 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated August 15, 2002 No. 19 ( with amendments and additions made by the normative resolutions of the Supreme Court dated March 9, 2006 No. 2 and dated June 25, 2010 No. 17), since all parts of the sentence constitute a logical, related document, the final part of the guilty verdict must meet the requirements of Article 380 of the code of criminal procedure and With the indication of the Criminal Law (Article, part, paragraph) in the final part, the decision to find the accused guilty must follow from the concept of prosecution, expressed in the descriptive-argumentative part. However, in the descriptive part of the sentence, the convicted N. showed that as a result of a quarrel caused by several guys who beat him in the face, he took a knife in his hand and waved him ten times in order to escape from the scene, during these actions the victim grabbed Sh., stabbed him in the chest, and then fled from the scene. From this part of the sentence, it is not established that the convicted N. swung a knife for the purpose of Defense or premeditated murder. And in the accusatory part of the sentence, the contradictory conclusion is indicated that he committed the crime of murder, that is, intentional death against the rights of a person, specified in Part 1 of Article 96 of the criminal code, and imposed a punishment under this article. These contradictions were ignored by the higher courts. At the same time, Part 7 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002 No. 6 (July 11, 2003, December 25, 2006, with amendments and additions made on April 21, 2011) states that the participation of the defense counsel in the case does not exempt the investigating authorities and the court from the obligation to involve the legal representative of the minor accused, suspect, defendant in the case. In the course of consideration of a criminal case by the Judicial Board of Cassation, a gross violation of the rights of a minor convicted N. was allowed. In particular, the convicted N. and his legal representative were not notified of the consideration of the criminal case in Cassation. Therefore, the legal representative of the convicted person did not have the opportunity to participate in the meeting of the Cassation judicial board. Under the influence of violation of the above-mentioned legal requirement, an illegal sentence in a criminal case is allowed. During the review of the criminal case, it is necessary to assess all the accumulated circumstances in the appropriate legal context and make a legal decision. Supervisory judicial board convicted N. he sent the criminal case to the Appellate Judicial Board of the same court for revision in a different composition.
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