Violent hooliganism
The guilty person must be given a fair, necessary and sufficient punishment for his correction within the limits established by the relevant article of the Special Part of the Criminal Code, and taking into account the provisions of the General Part of the Criminal Code by the verdict of the Ridder City Court of the East Kazakhstan region dated November 3, 2020: S., previously not convicted, convicted under paragraph 7) of part 2 of Article 106 The Criminal Code of the Republic of Kazakhstan (hereinafter – CC) to 6 years of imprisonment, according to paragraph 1) of part 2 of Article 293 of the Criminal Code to 2 years and 6 months of imprisonment, based on part 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment, 6 years of imprisonment were finally imposed with serving the sentence in an institution of the medium security penal system; P., who had no previous criminal record, was sentenced under paragraph 1) of part 2 of Article 293 of the Criminal Code to 2 years and 6 months in prison, under part 1 of Article 106 of the Criminal Code to 3 years in prison, on the basis of part 3 of Article 58 of the Criminal Code, by absorbing a less severe punishment, 3 years of imprisonment were finally imposed with serving the sentence in establishment of a medium-security penal enforcement system. By the verdict of the Court of S. He was found guilty of intentionally causing serious harm to the health of victim R., committed for hooligan motives, as well as hooliganism with violence committed in a group of persons, causing minor harm to the health of victim B. P. was found guilty of intentionally causing serious harm to the health of victim V., as well as hooliganism with violence committed in a group of persons, causing minor harm to the health of victim B. The verdict of the court was changed by the decision of the Judicial Board for Criminal Cases of the East Kazakhstan Regional Court dated January 6, 2021. The descriptive and motivational part of the verdict excludes the indication that they committed a criminal offense while intoxicated, which is recognized as an aggravating criminal liability and punishment circumstance. 2 years of imprisonment were imposed under paragraph 7) of part 2 of Article 106 of the Criminal Code with the application of part 4 of Article 55 of the Criminal Code, 2 years of restriction of freedom were imposed under paragraph 1) of part 2 of Article 293 of the Criminal Code, 2 years of restriction of freedom were imposed on the basis of part 3 of Article 58 of the Criminal Code by absorbing a less severe punishment with a more severe one. in an institution of the minimum security penal system.
Violent hooliganism
P. was sentenced to 3 years of restriction of freedom under part 1 of Article 106 of the Criminal Code, 2 years of restriction of freedom under paragraph 1) of part 2 of Article 293 of the Criminal Code, and 3 years of restriction of freedom with the establishment of probation control for the entire term was finally imposed on the basis of part 3 of Article 58 of the Criminal Code by absorbing a less severe punishment with a more severe one. The rest of the verdict remains unchanged. In the protest, the Prosecutor General points out that the court of appeal unjustifiably applied the rules of part 4 of Article 55 of the Criminal Code and the alternative punishment of paragraph.
Violent hooliganism
Requests to cancel the decision of the court of appeal regarding the imposition of punishment, and leave the judicial acts unchanged in the rest. According to the clarifications of paragraph 1 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of criminal punishment", when imposing criminal punishment, courts should strictly observe the general rules for sentencing specified in Article 52 of the Criminal Code. When determining the degree of public danger of a committed criminal offense, courts should take into account its severity and the totality of the circumstances in which it was committed (the method of commission, the form of guilt, motives and goals, the stage of completion of the act, the degree of public danger of the consequences, etc.). According to Article 52 of the Criminal Code, a person found guilty of committing a criminal offense, a fair, necessary and sufficient punishment for his correction is imposed within the limits established by the relevant article of the Special Part of the Criminal Code, and taking into account the provisions of the General Part of the Criminal Code. However, the court did not comply with these requirements of the law. When deciding on the amount of punishment, the Court of Appeal took into account the youth of the convicts, the lack of a criminal record, compensation for material and moral damage to the victims, recognized them as exceptional circumstances and, in accordance with part 4 of Article 55 of the Criminal Code, reduced the sentence of S. to 2 years in prison, and P. imposed an alternative punishment provided for by the sanction of part 1 of Article 106 of the Criminal Code, in the form of restriction of freedom. According to part 4 of Article 55 of the Criminal Code, if there are exceptional circumstances related to the goals and motives of the act, the role of the perpetrator, his behavior during or after the commission of a criminal offense, and other circumstances that significantly reduce the degree of public danger of the act, as well as with the active assistance of a participant in a group criminal offense to disclose the acts committed by the group, the penalty may be imposed below the lower limit provided for in the relevant article of the Special Part of the Criminal Code, or the court may impose a milder type of punishment than provided for in this article., or not to apply the additional type of punishment provided for as mandatory. When applying this rule to S., the court of appeal did not take into account that he inflicted grievous bodily harm on the victim R. with a knife and caused minor harm to the health of the victim B., out of hooligan motives, for no reason and fled the scene of the crime. Also, when assigning an alternative punishment, Paragraph the court of appeal did not take into account that the convicted person, having committed hooliganism in a group of persons, causing minor harm to the health of victim B., a month later intentionally caused serious harm to the health of another victim B.
Violent hooliganism
The mitigating circumstances referred to by the court of appeal, including those recognized as exceptional, were taken into account by the court of first instance when sentencing the convicted. Moreover, the court of first instance took into account the nature and degree of public danger of criminal offenses committed in a group of persons, the nature, method and multiplicity of bodily injuries caused, accompanied by fractures of the victim's ribs, the use of S. as a weapon of crime – a knife, causing serious harm to the victim's health. In this regard, the court of first instance correctly decided to impose a minimum sentence in the form of actual imprisonment provided for by the sanctions of the articles incriminated to them. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the decision of the appellate court in respect of S. and P., namely, it canceled it regarding the sentencing of convicted S. and P. punishment. The verdict of the Ridder City Court of the East Kazakhstan region dated November 3, 2020 against S. and P. regarding the sentencing of convicts remained unchanged. In this regard, it was decided: to consider S. sentenced under paragraph 7) of part 2 of Article 106 of the Criminal Code to 6 years in prison, under paragraph 1) of part 2 of Article 293 of the Criminal Code to 2 years and 6 months in prison, with the application of part 3 of Article 58 of the Criminal Code finally to 6 years in prison, with serving the sentence in the establishment of a medium-security penal system; count P. convicted under paragraph 1) of part 2 of Article 293 of the Criminal Code to 2 years and 6 months of imprisonment, part 1 of Article 106 of the Criminal Code to 3 years of imprisonment, with the application of part 3 of Article 58 of the Criminal Code, finally to 3 years of imprisonment, with serving the sentence in an institution of the medium security penal system. The rest of the judicial acts have not been changed. The protest of the Prosecutor General of the Republic of Kazakhstan was satisfied.
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