MURDER COMMITTED WHILE EXCEEDING THE LIMITS OF NECESSARY DEFENSE

           The application of criminal legislation in cases of crimes criminalizing murder committed while exceeding the limits of necessary defense is provided for in Article 102 of the Criminal Code of the Republic of Kazakhstan.

             Article 102 of the Criminal Code establishes liability for murder in extenuating circumstances - murder in excess of the limits of necessary defense.

             Exceeding the limits of necessary defense is an intentional act that clearly does not correspond to the nature and danger of the encroachment. This means that the defender deliberately resorted to protection in ways and means that obviously did not meet either the nature of the danger or his real capabilities to repel the encroachment.

             The Supreme Court of the Republic of Kazakhstan draws attention to the fact that courts should distinguish murder when exceeding the limits of necessary defense from the same acts committed in a state of sudden intense mental agitation, bearing in mind that when exceeding the limits of necessary defense, the defendant, harming the attacker, is guided by the desire to provide protection from socially dangerous encroachment, whereas for crimes committed in a state of sudden intense emotional agitation, It is typical to harm the victim precisely under the influence of such excitement (physiological effect), and not for the purpose of protection. If the defender exceeded the limits of the necessary defense and at the same time was in a state of sudden intense mental agitation, then his actions should be qualified as murder if he exceeded the limits of the necessary defense. Another feature that distinguishes these crimes from each other is that when a murder exceeds the limits of necessary defense, a state of strong mental excitement may be absent.

             This crime is considered completed from the moment of the attacker's death, i.e. by design, the composition of art. 102 of the Criminal Code is material. The objective side of the crime in question is characterized by actions that exceed the limits of necessary defense, resulting in the death of the victim.

             According to the construction of the objective side, the corpus delicti is material. The crime is over from the moment of the victim's death. The main structural feature of the objective side is the situation of the commission of a crime - a situation of necessary defense.Exceeding the limits of necessary defense is recognized as a clear discrepancy between the protection and the nature and degree of public danger of the encroachment, as a result of which the encroaching person suffers clearly excessive harm that is not caused by the situation. Such an excess entails criminal liability only in cases of intentional harm.

             It is not considered exceeding the limits of necessary defense to harm a person who is encroaching on human life, or when repelling another encroachment involving: the use or attempt to use weapons or other objects or means, the use of which poses a threat to the life or health of the defender or other persons; violence dangerous to the life or health of the defender or other persons, or with an immediate threat of such violence; with unlawful forcible entry into a dwelling or other premises.

             When deciding on the presence or absence of signs of exceeding the limits of necessary defense, one should take into account not only the correspondence or inconsistency of the means of defense and attack, but also the nature of the danger that threatened the defender, his strength and ability to repel the encroachment, as well as all other circumstances that could affect the real balance of forces of the encroaching and defending (the number of encroaching and defending, their age, physical development, the presence of weapons, the place of encroachment, etc.).

             The subjective side of killing when exceeding the limits of necessary defense is characterized by direct or indirect intent. The perpetrator is aware that, while defending himself from a socially dangerous encroachment, he himself commits an unlawful act, anticipates the possibility or inevitability of causing death to the encroaching person and desires (direct intent) or deliberately allows it to occur or treats it indifferently (indirect intent). The intent in such a murder is always sudden. Deprivation of life in excess of the limits of necessary defense due to negligence does not entail criminal liability.

             A mandatory feature of the subjective side of the crime in question is a legitimate motive and purpose – to protect oneself or others or the legally protected interests of society or the state from socially dangerous encroachment.

             The subject of a crime is any sane individual who has reached the age of sixteen at the time of the commission of the crime.

An official who commits a murder exceeding the limits of necessary defense is liable under Article 102 of the Criminal Code. Additional qualifications under Article 362 of the Criminal Code of the Republic of Kazakhstan are not required in this case, although this person was attacked in connection with the performance of his official duties.

According to the same article, military personnel who commit murder while exceeding the limits of necessary defense during protection from encroachments at the time of their military duties are liable.

The sentences against two women were studied, one considered in the official language by the Khromtau district Court of Aktobe region, the second by the Sandyktau District Court of Akmola region.

The subjects of both crimes were previously undocumented women, both with permanent residence, one born in 1979, a rural resident with secondary education, a married woman working as a grocery store clerk, exceeding the limits of necessary defense, stabbed her husband to death.

The second, born in 1959, a resident of the village, who has 8 grades of education, is not married, does not work, having exceeded the limits of necessary defense, by stabbing, took the life of a roommate.

A study of these judicial acts showed that in both cases, the husband in one and the cohabitant in the other were intoxicated and were the initiators of conflicts and later the persons who contributed to the commission of the crime. And as a result of their illegal actions, in the first case, the wife, in the second case the cohabitant turned out to be defending themselves, but in both cases, by using knives, they exceeded the limits of necessary defense and deprived the lives of people with whom they lived for a long time.

The reason and condition for the commission of this crime was the presence of the victims in a state of alcoholic intoxication, who, under the influence of alcohol, first initiated a conflict, then exerted psychological and physical pressure on the defendants, who, being under psychological and physiological pressure from the victims, exceeded the limits of necessary defense and committed murder.

By the verdict of the Khromtau District Court of the Aktobe region dated 30.06.2015, A.B. Ermukhanova was sentenced to 1 year of restriction of freedom under Article 102 of the Criminal Code of the Republic of Kazakhstan.

By the verdict of the Sandyktau District Court of the Akmola region dated February 26, 2015, in the conciliation proceedings, Senina M.G. was sentenced to 2 years of restriction of liberty under Article 102 of the Criminal Code of the Republic of Kazakhstan.

In the presence of similar circumstances of the crimes committed, Judge L.D.Seksenbayeva of the Sandyktau District Court did not take into account the requirements of Article 55, Part 3 of the Criminal Code of the Republic of Kazakhstan, where in cases of accelerated pre-trial investigation, as well as in cases where all the conditions of the procedural agreement are fulfilled, the term or amount of punishment for the committed criminal offense may not exceed half of the maximum term or the amount of the most severe type of punishment provided for in the relevant article of the Special Part of the Code of the Republic of Kazakhstan.

According to art.397 Part 1 of the CPC, the descriptive and motivational part of the conviction must contain a description of the criminal offense recognized by the court as proven, indicating the place, time, method of its commission, the form of guilt, motives and consequences of the crime. The verdict provides evidence on which the court's conclusions regarding the defendant are based.

According to paragraph 18 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial verdict", when presenting evidence, the court should not limit itself to listing and stating their contents, it is obliged to make a comprehensive analysis of the evidence in relation to each defendant, indicate which circumstances confirm this evidence and which refute it.

However, in most cases, the close relatives of the victims are recognized as representatives of the victims or legal representatives of the victims. Although according to the rules of art.71, part 11 of the CPC RK, each of them is a victim in the case, and not a representative. Thus, in accordance with art.71, part 11 of the CPC RK in cases of crimes resulting in the death of a person, the rights of the victim provided for in this article are exercised by close relatives of the deceased. If several persons who have suffered moral damage due to the death of their relatives claim to be granted the rights of the victim, all of them may be recognized as victims or, by agreement between them, one of them.

For example, by the verdict of the Khromtau district Court of the Aktobe region dated 30.06.2015, E.A.B. was sentenced to 1 year of restriction of freedom under Article 102 of the Criminal Code of the Republic of Kazakhstan. The deceased was Zh. Zh., and his brother N.Zh.T., was recognized as a representative of the victim, although, for example, by the verdict of the Khromtau district Court of the Aktobe region dated 30.06.2015, Ermukhanova A.B. was sentenced to 1 year of restriction of freedom under art. 102 of the Criminal Code of the Republic of Kazakhstan.The deceased was Turemuratov Zhaskairat Zhaksylykovich, and his brother N.J.Turemuratov was recognized as the victim's representative, although he should be the victim.

By the verdict of the Sandyktau District Court of the Akmola region dated February 26, 2015, in the conciliation proceedings, Senina M.G. was sentenced to 2 years of restriction of liberty under Article 102 of the Criminal Code of the Republic of Kazakhstan.

In the presence of similar circumstances of the crimes committed, Judge L.D.Seksenbayeva of the Sandyktau District Court did not take into account the requirements of Article 55, Part 3 of the Criminal Code of the Republic of Kazakhstan, where in cases of accelerated pre-trial investigation, as well as in cases where all the conditions of the procedural agreement are fulfilled, the term or amount of punishment for the committed criminal offense may not exceed half of the maximum term or the amount of the most severe type of punishment provided for in the relevant article of the Special Part of the Code of the Republic of Kazakhstan.

According to art.397 Part 1 of the CPC, the descriptive and motivational part of the conviction must contain a description of the criminal offense recognized by the court as proven, indicating the place, time, method of its commission, the form of guilt, motives and consequences of the crime. The verdict provides evidence on which the court's conclusions regarding the defendant are based.

According to paragraph 18 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial verdict", when presenting evidence, the court should not limit itself to listing and stating their contents, it is obliged to make a comprehensive analysis of the evidence in relation to each defendant, indicate which circumstances confirm this evidence and which refute it.

However, in most cases, the close relatives of the victims are recognized as representatives of the victims or legal representatives of the victims. Although according to the rules of art.71, part 11 of the CPC RK, each of them is a victim in the case, and not a representative. Thus, in accordance with art.71, part 11 of the CPC of the Republic of Kazakhstan in cases of crimes resulting in the death of a person, the victim's rights provided for in this article are exercised by close relatives of the deceased. If several persons who have suffered moral damage due to the death of their relatives claim to be granted the rights of the victim, all of them may be recognized as victims or, by agreement between them, one of them.

For example, by the verdict of the Khromtau district Court of the Aktobe region dated 30.06.2015, E.A.B. was sentenced to 1 year of restriction of freedom under Article 102 of the Criminal Code of the Republic of Kazakhstan. The deceased was Zh. Zh., and his brother N.Zh.T., was recognized as a representative of the victim, although, for example, by the verdict of the Khromtau district Court of the Aktobe region dated 30.06.2015, Ermukhanova A.B. was sentenced to 1 year of restriction of freedom under art. 102 of the Criminal Code of the Republic of Kazakhstan.The deceased was Turemuratov Zhaskairat Zhaksylykovich, and his brother N.J.Turemuratov was recognized as the victim's representative, although he should be the victim.

           Courts impose punishments based on the public danger of crimes, mitigating and aggravating circumstances, information about the identity of the convicted, as well as the opinions of the victims.

In cases of non-custodial sentences, the courts do not always comply with the requirements of art.380, part 1, paragraph 4) of the Criminal Procedure Code of the Republic of Kazakhstan, namely, the obligation of convicts to appear in the authorized state body for registration is not specified in the operative part of the sentence.

It is necessary to clearly distinguish murder when exceeding the limits of necessary defense against premeditated murders.

Courts must strictly comply with the requirements of the law regarding the structure and content of a court verdict, namely, examine all the evidence collected in the case, evaluate it and motivate the decision, not limited to listing the available written evidence and simply stating the testimony of witnesses and other participants in the process.

When considering cases of accelerated pre-trial investigation, as well as in cases where all the conditions of the procedural agreement have been fulfilled, the courts should strictly comply with the requirements of art. 55 Part 3 of the Criminal Code of the Republic of Kazakhstan, compliance with the terms and amounts of sentencing.

The courts also need to strictly comply with the requirements of the law regarding the recognition of close relatives of the deceased as victims in the case, and not representatives of the victim.

In cases where a non-custodial sentence is imposed, courts must strictly comply with the requirements of the law, namely, in the operative part of the sentence, indicate the obligation of convicts to appear within ten days after the sentence enters into force at the authorized body at the place of residence for registration, as well as the consequences of failure to perform the duties assigned by the court.

 

 

 

 

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