The sudden and directly related occurrence of mental stress of the perpetrator with an immoral act of the victim are the distinguishing features of murder in a state of mental stress.
By the verdict of the Specialized Interdistrict court for criminal cases of Almaty region dated December 27, 2011, M., not previously convicted: found guilty by Part 1 of Article 96 of the criminal code, sentenced to 8 years in prison, serving a sentence in a strict correctional colony. Due to their previous feud between M. and the victim A., a conflict arose, and in the course of the fight, M. beat A. to death in the neck with a long, pointed iron club intended for firefighting. By a court verdict, he was found guilty of killing another person with the intent to commit unlawful intentional death. By the decision of the Appellate Judicial Board of the Almaty regional court, the verdict was left unchanged. By the decision of the Judicial Board of Cassation, the court verdict was changed, and the criminal behavior of the convicted M. was again differentiated from Part 1 of Article 96 of the Criminal Code to Part 1 of Article 98 of the criminal code, in which he was sentenced to 3 years of imprisonment. The place of serving the sentence has been transferred from a strict institution to a general institution. The rest of the sentence is left unchanged. The defense of the victim did not agree with the decision of the Judicial Board of Cassation, filed an application with the supervisory Judicial Board of the Supreme Court, which overturned the verdict of the court of Cassation and asked to leave the verdict of the court of First Instance and the decision of the court of Appeal unchanged. The supervisory judicial board heard the opinion of the prosecutor, the arguments of the defenders of the victim and the convicted person, studied the case materials and satisfied the request of the victim's defense. A conflict arose between the convicted M., who works as the head of the department at the railway institution, and the worker of this institution, the victim A., as a result of previous hostilities. During the conflict, A. was the first to hit M. with his fist. The master of repair of railway equipment K. pressed on the quarreling M. and A., took the iron in the hands of the latter, the wood in the hands of M. and stood in the middle, separating the two. At this point, M. taking a long, pointed-headed iron club from a fire-fighting board, with the aim of killing, that is, deliberately killing another person against the law, the victim struck A.'s vital point-in the neck. According to the conclusion of the forensic examination, the victim A. was inflicted with serious physical injuries dangerous to the life and health of a person, the sleep and blood vessels of the neck were cut, as a result of these serious injuries, the victim lost a lot of blood and died of bleeding.
The sudden and directly related occurrence of mental stress of the perpetrator with an immoral act of the victim are the distinguishing features of murder in a state of mental stress.
The conclusion of the psychological and psychiatric examination indicates that the convicted M. was in a state of mental stress (physiological affect) during criminal acts. Article 120 of the CPC stipulates that the expert's opinion is a document reflecting the course and results of a forensic examination, drawn up in accordance with the requirements of this code, that the expert's opinion is not binding on the body conducting a criminal case, however, its disagreement with the conclusion must be reasoned. Article 26 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 " states that when qualifying an act, a necessary condition is the presence of physiological stress of the perpetrator, its sudden appearance and connection with the actions of the victim. A state of mental distress refers to a short-term, intense state of mind in which the perpetrator has power over his ability to behave and act.
The length of time between the actions of the victim and the retaliatory actions of the perpetrator excludes the application of articles 98 or 108 of the criminal code. The convicted M. voluntarily told about how he committed the crime during the preliminary investigation, how he beat the victim with a sharp iron club. When evaluating the answers of M. during the preliminary investigation, the court determined that he gave a thorough, complete report on how the incident of the crime began, his own and the actions of the victim, the answers of the convicted person correspond to the evidence collected in the case, the answers of witnesses who witnessed the conflict. In this regard, the convicted M. came to the conclusion that he was in a situation where he was fully responsible for his actions, could dispose of the ability to behave and act. According to the answers of B., K., zh., who directly witnessed the conflict, the conflict between the convict and the victim lasted about 5-6 minutes, in addition, when the Witness B. interceded between the victim and the convict, he showed an iron slaughter in the hands of A., a tree in the hands of M. That is, B. calmed both of them for a moment, during this pause M. the conclusion of the court of first instance that there is no reason to believe that there was a special state of mind here, and in the event that it happened, the state of mind appeared suddenly, is correct and in accordance with the circumstances of the case. Consequently, the court of first instance correctly ranked the criminal actions of the convicted M. on the basis of the totality of the accumulated evidence in the case, Part 1 of Article 96 of the criminal code. Therefore, the decision of the Judicial Board of Cassation is violated, and the verdict of the court of First Instance and the decision of the Judicial Board of Appeal are subject to cancellation.
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