Intentional infliction of serious harm to health

By the verdict of the Kazybekbiysky District Court of Karaganda dated July 10, 2020: T., who had no previous criminal record, was sentenced under paragraph 7) of part 2 of Article 106 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 5 years in prison to serve his sentence in an institution of the medium security penal system. It was decided to calculate the term from the moment of his actual detention, with the penalty offset according to the rules of paragraph 2) of part 3 of Article 62 of the Criminal Code. K.'s civil claim was partially satisfied. Recovered from T.: in favor of K. as compensation for moral damage, 2,000,000 tenge, state duty 1,389 tenge, procedural costs for conducting examinations 1,681 tenge, compulsory payment in the amount of 50,500 tenge to the Compensation Fund for Victims. By the verdict of the court, T. was found guilty of intentionally causing serious harm to the health of the victim K., committed out of hooligan motives. By the resolution of the Judicial Board for Criminal Cases of the Karaganda Regional Court dated September 17, 2020, the verdict was changed, the procedural costs collected from T. in the amount of 1,681 tenge were reduced to 841 tenge. In the descriptive part of the sentence, after the words "punch", the word "right" is replaced by the word "left". The rest of the verdict was left unchanged. In the petition, S.'s lawyer, disagreeing with the judicial acts against convicted T., claims that there is no corpus delicti in the actions of the convicted person provided for in paragraph 7) of part 2 of Article 106 of the Criminal Code. He points out that, according to the conclusions of the commission's forensic medical examination No. 3751/23.3/46k dated April 27, 2020, the formation of K.'s injuries directly from a left-handed fist strike to the right side of K.'s face is excluded. The nature and anatomical localization of the injuries to the skull bones indicate that this fracture was formed as a result of falling onto a plane with a place of force application – the parietal region on the right. The possibility of the formation of this fracture, brain contusions, hematomas and hemorrhage as a result of a punch is excluded.

Intentional infliction of serious harm to health

There is no evidence of T.'s guilt. He considers that K. suffered serious bodily injuries as a result of falling on the asphalt, and not as a result of a blow inflicted by T. He asks to reclassify the actions of convicted T. under paragraph 7) of part 2 of Article 106 of the Criminal Code to part 3 of Article 114 of the Criminal Code and impose a punishment unrelated to actual imprisonment. As follows from the circumstances established by the verdict of the court, T., having seen how previously unknown And. He struck once with his right hand in the area of the left side of K.'s face, for hooligan motives, struck with his left fist in the right side of K.'s face, causing the victim to fall to the asphalt and lose consciousness. The Court concluded that the grave harm to the victim's health was caused as a result of T.'s single blow to the victim's face. The charge of causing other injuries to the victim is not imputed. Meanwhile, while establishing the subjective side of T.'s actions, the court stated in the descriptive part of the verdict that the convict, striking a fist into the victim's head, "had direct intent," at the same time, in the reasoning part of the verdict, it asserts that the convict "with due care and foresight should have and could have foreseen the possibility of a socially dangerousdangerous consequences of their actions, namely causing serious harm to the victim's health," that is, characterizes the act as committed through negligence – in the form of negligence (part 3 of Article 21 of the Criminal Code). Thus, despite the fact that the verdict is a logically related document in which the descriptive and motivational parts of the verdict must correspond to each other, the court came to a contradictory conclusion that T. committed a criminal offense both intentionally and negligently. Moreover, the court, having failed to ensure the comprehensiveness and objectivity of the examination of evidence, took into account the conclusion of the commission of forensic medical examination dated April 27, 2020 No. 3751/23.3/46k unilaterally. While it follows from the conclusion of the commission of forensic medical examination No. 3751/23.3/46 dated April 27, 2020: – at the time of treatment at the medical institution, K. there were the following injuries: closed craniocerebral trauma in the form of a linear fracture of the frontal parietal bone on the left with a transition to the right parietal bone through the sagittal suture with partial divergence of the coronary and sagittal sutures, subdural hemorrhage (hemorrhage under the dura mater) in the frontal parietal region on the left (total volume of 80 ml.), frontal region on the right (total volume of 30 ml.), subarachnoid hemorrhages (hemorrhages under the soft meninges), brain contusions of the left and right frontal lobes of the 2nd degree, with the formation of an intracerebral hematoma (with a total volume of 80 ml. on the left; 30 ml. on the right), which were formed from the impact of a blunt solid object (objects); these injuries are considered in a single complex as having caused serious harm to health on the basis of danger to life; – taking into account the data of the video recording of bodily injury, the nature and localization of the fracture of the bones of the cranial vault (linear fracture of the frontal-parietal bone on the left with transition to the right parietal bone through the sagittal suture with partial divergence of the coronary and sagittal sutures), localization of the beginning of the fracture line (lower parts of the parietal bone on the right), the presence of subdural hemorrhage of the frontal-parietal region on the left, the frontal region on the right, taking into account the presence of predominant brain damage on the diametrically opposite side from the parietal region on the right (artaking into account the data of the video recording of bodily injury, the nature and localization of the fracture of the bones of the cranial vault (linear fracture of the frontal-parietal bone on the left with transition to the right parietal bone through the sagittal suture with partial divergence of the coronary and sagittal sutures), localization of the beginning of the fracture line (lower parts of the parietal bone on the right), the presence of subdural hemorrhage of the frontal-parietal region on the left, the frontal region on the right, taking into account the presence of predominant brain damage on the diametrically opposite side from the parietal region on the right (area, where it originates) – subarachnoid hemorrhages, brain contusions of the left and right frontal lobes of the 2nd degree, with the formation of an intracerebral hematoma – the so-called shock-resistant injuries, it can be said that this craniocerebral injury was formed as a result of the impact of a blunt solid object with a limited traumatic surface, which could be the palm of the left hand, clenched into a fist, into the face area (lower jaw area), giving kinetic energy to the body and then falling off the curb and hitting a freely movable head the so-called shock-resistant injuries, it can be said that this craniocerebral injury was form a result of the impact of a blunt solid object with a limited traumatic surface, which could be the palm of the left hand, clenched into a fist, into the face area (lower jaw area), giving kinetic energy to the body and then falling off the curb and hitting a freely movable head (parietal region on the right) against a stationary blunt solid object with an unlimited traumatic surface, which could be an asphalt patch of ground (acceleration injury); – con– considering the nature and anatomical localization of injuries to the bones of the skull and brain matter (linear fracture of the frontal parietal bone on the left with transition to the right parietal bone through the sagittal suture with partial divergence of the coronary and sagittal sutures, subarachnoid hemorrhages, brain contusions of the left and right frontal lobes of the 2nd degree, with the formation of intracerebral hematoma), we can say that their formation is directly caused by a left-hand punch to the right side of K.'s face is excluded. This impact gave kinetic energy to the victim'This impact gave kinetic energy to the victim's body, which led to his fall from the curb and the impact of his freely movable head (parietal region on the right) on a stationary blunt solid object with an unlimited traumatic surface, which could be an asphalted piece of ground (acceleration injury). The presence of rotation of the head relative to the vertical axis (according to the video) does not exclude the possibilitIn addition, the possibility of subdural hemorrhage under the above conditions is not excluded; – taking into account the nature and anatomical localization of damage to the bones of the skull (linear fracture of the frontal-parietal bone on the left with transition to the right parietal bone through the sagittal suture with partial divergence of the coronary and sagittal sutures), localization of the beginning of the fracture line (lower parts of the parietal bone on the right), It can be determined that this fracture was formed as a result of falling onto a plane with a place of force application - the parietal region on the right. The possibility of the formation of this fracture from a punch is excluded.; – brain contusions of the left and right frontal lobes of the 2nd degree, with the formation of an intracerebral hematoma, subarachnoid hemorrhages are shock-resistant injuries and were formed on the diametrically opposite side from the site of the fracture (lower parts of the parietal bone on the right), as a result of a fall followed by a collision with a freely movable head (parietal region on the right) on a stationary blunt solid object with unlimited a traumatic surface, which could be an asphalted piece of land, after giving kinetic energy to the bobrain contusions of the left and right frontal lobes of the 2nd degree, with the formation of an intracerebral hematoma, subarachnoid hemorrhages are shock-resistant injuries and were formed on the diametrically opposite side from the site of the fracture (lower parts of the parietal bone on the right), as a result of a fall followed by a collision with a freely movable head (parietal region on the right) on a stationary blunt solid object with unlimited a traumatic surface, which could be an asphalted piece of land, after giving kinetic energy to the body, by punching his left fist into the right side of K.'s face (acceleration injury). These video recordings of bodily injury show that the possibility of the above-described bodily injuries as a result of a punch is excluded.; – considering the nature and anatomical location of the injuries to the skull bones - linear fracture of the frontal-parietal bone on the left with a transition to the right parietal bone through the sagittal suture with partial divergence of the coronary and sagittal sutures, it can be said that this fracture was formed as a result of a general deformation of the skull during a fall, followed by a collision with a freely movable head (parietal region on the right) on a stationary blunt solid object with unlimited traumatic surface, which It could have been an asphalt patch of ground, after giving kinetic energy to the linear fracture of the frontal-parietal bone on the left with a transition to the right parietal bone through the sagittal suture with partial divergence of the coronary and sagittal sutures, it can be said that this fracture was formed as a result of a general deformation of the skull during a fall, followed by a collision with a freely movable head (parietal region on the right) on a stationary blunt solid object with unlimited traumatic surface, which It could have been an asphalt patch of ground, after giving kinetic energy to the body, by hitting the right side of K.'s face with his left fist (acceleration injury). Thus, the commission's forensic medical examination, having indicated that the injuries to the victim, which caused serious harm to his health, occurred when he fell from a 155 cm high curb and hit a stationary blunt solid object, which could have been an asphalt plot of land, excluded their formation from a punch. The causal relationship between the convict's action and the consequences that ensued, that is, the infliction of serious harm to K.'s health as a result of a blow inflicted by the convict with an unarmed fist of his left hand in the victim's face area, has not been established. The injury caused by T. punching the victim in the face does not constitute serious harm to health. Serious harm to the victim's health was caused by injuries that occurred when the victim fell, followed by a freely movable head hitting the asphalt surface of the ground.

Consequently, T.'s intent did not include inflicting grievous bodily harm on the victim. Striking K. in the face, T. did not want and did not foresee serious consequences, although he should have and could have foreseen it. Thus, the totality of tently, T.'s intent did not include inflicting grievous bodily harm on the victim. Striking K. in the face, T. did not want and did not foresee serious consequences, although he should have and could have foreseen it. Thus, the totality of the evidence indicates the presence of a careless form of guilt in relation to the occurrence of harmful consequences in the actions of the convicted person. T.'s careless guilt is expressed in the form of negligence, since, striking the victim in the face with his fist, T. He did not foresee the onset of such serious consequences, although, according to the circumstanceHe did not foresee the onset of such serious consequences, although, according to the circumstances of the case, he could and should have foreseen that the victim, as a result of his blow, could fall and hit his head on the asphalt surface of the ground and receive serious harm to his health. The obligation and possibility of anticipating such a fall and for victim K. to receive serious harm to health as a result of the fall are evidenced by the fact that after being hit in the face by I., victim K. moved back and was on the curb, which obliged T. to show the necessary care and foresight at the time of the blow. However, the court did not give a propHowever, the court did not give a proper assessment of the specific situation and unreasonably found him guilty of committing a crime under paragraph 7) of part 2 of Article 106 of the Criminal Code. In such circumstances, the court, having correctly established the factual circumstances of the case, made a mistake in the subjective side of the convict's actions - in determining the direction of T.'s intent when he punched the victim. In this regard, T.'s actions are subject to reclassification from paragraph 7) of part 2 of Article 106 of the Criminal Code to part 3 of Article 114 of the Criminal Code as causing serious harm to health by negligence. When discussing the measure of punishment, the judicial board for criminal cases of the Supreme Court takes into account the nature and degree of public danger of the crime committed, the personality of the convicted person, the specific circumstances of the crime, the consequences that have occurred, circumstances mitigating his responsibility and punishment (young age, bringing to criminal responsibility for the first time) and the absence of aggravating circumstances.

Considering that in the presence of a mitigating circumstance that is not provided for as a sign of aConsidering that in the presence of a mitigating circumstance that is not provided for as a sign of a committed crime, and in the absence of aggravating circumstances, the term or amount of the main type of punishment may not exceed half of the maximum term or amount provided for in the relevant article of the Special Part of this Code in the commission of a minor offense, the term of punishment for T. under this article shall be imposed according to the rules established by the Legislation of the Russian Federation. paragraph 1) part 2 of Article 55 of the Criminal Code. According to paragraph 1) of part 5 of Article 46 of the Criminal Code, the punishment should be served in an institution of the minimum security penal system. Taking into account the change in the category of the offense committed by the perpetrator on the basis of article 173 of the Criminal Procedure Code of the Republic of Kazakhstan, article 98-1 and Article 98-2UK, the amount of the compulsory payment collected from T. to the Compensation Fund for Victims is subject to reduction to 10 monthly calculation indices. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of local courts in relation to T.: – his actions were reclassified from paragraph 7) of part 2 of Article 106 of the Criminal Code to part 3 of Article 114 of the Criminal Code, according to which 6 (six) months of imprisonment were imposed with serving the sentence in an institution of the minimum security penal system; – the time spent in custody before the sentence entered into force from July 11 to September 17, 2020, was counted towards the term of serving the sentence at the rate of one day for t In addition, the possibility of subdural hemorrhage under the above conditions is not excluded; – taking into account the nature and anatomical localization of damage to the bones of the skull (linear fracture of the frontal-parietal bone on the left with transition to the right parietal bone through the sagittal suture with partial divergence of the coronary and sagittal sutures), localization of the beginning of the fracture line (lower parts of the parietal bone on the right), It can be determined that this fracture was formed as a result of falling onto a plane with a place of force application - the parietal region on the right. The possibility of the formation of this fracture from a punch is excluded.; – brain contusions of the left and right frontal lobes of the 2nd degree, with the formation of an intracerebral hematoma, subarachnoid hemorrhages are shock-resistant injuries and were formed on the diametrically opposite side from the site of the fracture (lower parts of the parietal bone on the right), as a result of a fall followed by a collision with a freely movable head (parietal region on the right) on a stationary blunt solid object with unlimited a traumatic surface, which could be an asphalted piece of land, after giving kinetic energy to the bobrain contusions of the left and right frontal lobes of the 2nd degree, with the formation of an intracerebral hematoma, subarachnoid hemorrhages are shock-resistant injuries and were formed on the diametrically opposite side from the site of the fracture (lower parts of the parietal bone on the right), as a result of a fall followed by a collision with a freely movable head (parietal region on the right) on a stationary blunt solid object with unlimited a traumatic surface, which could be an asphalted piece of land, after giving kinetic energy to the body, by punching his left fist into the right side of K.'s face (acceleration injury). These video recordings of bodily injury show that the possibility of the above-described bodily injuries as a result of a punch is excluded.; – considering the nature and anatomical location of the injuries to the skull bones - linear fracture of the frontal-parietal bone on the left with a transition to the right parietal bone through the sagittal suture with partial divergence of the coronary and sagittal sutures, it can be said that this fracture was formed as a result of a general deformation of the skull during a fall, followed by a collision with a freely movable head (parietal region on the right) on a stationary blunt solid object with unlimited traumatic surface, which It could have been an asphalt patch of ground, after giving kinetic energy to the linear fracture of the frontal-parietal bone on the left with a transition to the right parietal bone through the sagittal suture with partial divergence of the coronary and sagittal sutures, it can be said that this fracture was formed as a result of a general deformation of the skull during a fall, followed by a collision with a freely movable head (parietal region on the right) on a stationary blunt solid object with unlimited traumatic surface, which It could have been an asphalt patch of ground, after giving kinetic energy to the body, by hitting the right side of K.'s face with his left fist (acceleration injury). Thus, the commission's forensic medical examination, having indicated that the injuries to the victim, which caused serious harm to his health, occurred when he fell from a 155 cm high curb and hit a stationary blunt solid object, which could have been an asphalt plot of land, excluded their formation from a punch. The causal relationship between the convict's action and the consequences that ensued, that is, the infliction of serious harm to K.'s health as a result of a blow inflicted by the convict with an unarmed fist of his left hand in the victim's face area, has not been established. The injury caused by T. punching the victim in the face does not constitute serious harm to health. Serious harm to the victim's health was caused by injuries that occurred when the victim fell, followed by a freely movable head hitting the asphalt surface of the ground.

Consequently, T.'s intent did not include inflicting grievous bodily harm on the victim. Striking K. in the face, T. did not want and did not foresee serious consequences, although he should have and could have foreseen it. Thus, the totality of tently, T.'s intent did not include inflicting grievous bodily harm on the victim. Striking K. in the face, T. did not want and did not foresee serious consequences, although he should have and could have foreseen it. Thus, the totality of the evidence indicates the presence of a careless form of guilt in relation to the occurrence of harmful consequences in the actions of the convicted person. T.'s careless guilt is expressed in the form of negligence, since, striking the victim in the face with his fist, T. He did not foresee the onset of such serious consequences, although, according to the circumstanceHe did not foresee the onset of such serious consequences, although, according to the circumstances of the case, he could and should have foreseen that the victim, as a result of his blow, could fall and hit his head on the asphalt surface of the ground and receive serious harm to his health. The obligation and possibility of anticipating such a fall and for victim K. to receive serious harm to health as a result of the fall are evidenced by the fact that after being hit in the face by I., victim K. moved back and was on the curb, which obliged T. to show the necessary care and foresight at the time of the blow. However, the court did not give a propHowever, the court did not give a proper assessment of the specific situation and unreasonably found him guilty of committing a crime under paragraph 7) of part 2 of Article 106 of the Criminal Code. In such circumstances, the court, having correctly established the factual circumstances of the case, made a mistake in the subjective side of the convict's actions - in determining the direction of T.'s intent when he punched the victim. In this regard, T.'s actions are subject to reclassification from paragraph 7) of part 2 of Article 106 of the Criminal Code to part 3 of Article 114 of the Criminal Code as causing serious harm to health by negligence. When discussing the measure of punishment, the judicial board for criminal cases of the Supreme Court takes into account the nature and degree of public danger of the crime committed, the personality of the convicted person, the specific circumstances of the crime, the consequences that have occurred, circumstances mitigating his responsibility and punishment (young age, bringing to criminal responsibility for the first time) and the absence of aggravating circumstances.

Considering that in the presence of a mitigating circumstance that is not provided for as a sign of aConsidering that in the presence of a mitigating circumstance that is not provided for as a sign of a committed crime, and in the absence of aggravating circumstances, the term or amount of the main type of punishment may not exceed half of the maximum term or amount provided for in the relevant article of the Special Part of this Code in the commission of a minor offense, the term of punishment for T. under this article shall be imposed according to the rules established by the Legislation of the Russian Federation. paragraph 1) part 2 of Article 55 of the Criminal Code. According to paragraph 1) of part 5 of Article 46 of the Criminal Code, the punishment should be served in an institution of the minimum security penal system. Taking into account the change in the category of the offense committed by the perpetrator on the basis of article 173 of the Criminal Procedure Code of the Republic of Kazakhstan, article 98-1 and Article 98-2UK, the amount of the compulsory payment collected from T. to the Compensation Fund for Victims is subject to reduction to 10 monthly calculation indices. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the judicial acts of local courts in relation to T.: – his actions were reclassified from paragraph 7) of part 2 of Article 106 of the Criminal Code to part 3 of Article 114 of the Criminal Code, according to which 6 (six) months of imprisonment were imposed with serving the sentence in an institution of the minimum security penal system; – the time spent in custody before the sentence entered into force from July 11 to September 17, 2020, was counted towards the term of serving the sentence at the rate of one day for t

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