Intentional infliction of serious harm to the health of the victim from hooligan motives on the basis of personal relationships that initiated a quarrel or a fight
By the verdict of the court No. 2 of Kostanay dated September 8, 2016, O. was sentenced under part 1 of Article 106 of the Criminal Code to 5 years of restriction of liberty with the establishment of probation control. I. was convicted under Article 108UK, fined 40 MCI, that is, in the amount of 84,840 tenge. By the verdict of the court, the claims of K. partially satisfied. From the convicted O. in favor of K. the amount of material damage caused by the crime, 254,545 tenge, compensation for moral damage in the amount of 1,000,000 tenge and court costs were recovered. From the convict And. recovered in favor of K. compensation for moral damage in the amount of 50,000 tenge and court costs. The procedural costs were collected from the convicted O. and I. in a shared manner from each in the amount of 3,921 tenge. By the verdict of the court, O. was found guilty of intentionally causing serious harm to the health of the victim K., I. – of intentionally causing minor harm to the health of the victim K. By the decision of the judicial board for Criminal Cases of the Kostanay Regional Court of November 1, 2016, the court verdict against O. He was sentenced under part 1 of Article 106 of the Criminal Code to 3 years in prison while serving his sentence in a general regime penal colony. The verdict against I. was upheld by the court of appeal. The Judicial Board for Criminal Cases of the Supreme Court dismissed the victim's petition against O., partially satisfied with respect to I. on the following grounds. The arguments of the victim's petition for the commission of O. acts of hooligan motives and improper reclassification by the court of his actions from paragraph 2) of part 3 of Article 293 and paragraph 7) of part 2 of Article 106 of the Criminal Code to part 1 of Article 106 of the Criminal Code, on the imposition of excessively lenient punishment to the convicted person, insufficiency of the amount of moral damage recovered from O. are unjustified.
Intentional infliction of serious harm to the health of the victim from hooligan motives on the basis of personal relationships that initiated a quarrel or a fight
The court's conclusions about O.'s guilt in intentionally causing serious harm to the health of the victim K. are confirmed by the evidence collected in the case: protocols of inspection of the scene of the incident – the territory of the West nightclub, protocols of identification from photographs, testimonies of the victim K., convicted O., witnesses M., V., N., A., B., F., G., S., L., E. and S., protocols for checking and clarifying testimony on the spot, conclusions of forensic medical, forensic ballistics examinations, video recordings from surveillance cameras of the West nightclub and other evidence. The materials of the criminal case, including the video from the surveillance cameras of the West nightclub, established that the fight in front of the West club occurred due to an incident that arose between B. and M. Convicted O. was in this club for security purposes, did not enter into a preliminary conspiracy to commit hooliganism. O. went outside in order to prevent a violation of public order. However, he did not take part in the fight. He was struck first by the victim K., who knocked him to the ground and continued to deliver repeated blows. Only after the victim K. beat him up, O. fired about 5 shots at him. The conclusion of the forensic medical examination found a bruise in the lumbar region, swelling of the soft tissues of the temporal occipital region on the left, which caused minor harm to health. The victim K. suffered serious harm to his health. In such circumstances, the court came to the correct conclusion that the subjective side of O.'s retaliatory actions was based on revenge for the victim's misconduct, rather than hooligan motives. This conclusion fully corresponds to the explanations of paragraph 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 "On judicial practice in cases of hooliganism" that serious harm to health cannot be considered as committed out of hooliganism only in connection with their commission in a public place or in the presence of unauthorized citizens, if the motive Their commission was revenge, hostility and other motives that arose on the basis of personal relationships, as well as illegal behavior of the victim., the one who initiated the quarrel or fight.
Thus, the court has given a correct legal assessment of the actions of convicted O. under part 1 of Article 106 of the Criminal Code. The penalty of 3 years of imprisonment was imposed on convicted O. by the court of appeal, taking into account the nature and degree of public danger of the act, the specific circumstances in which O. committed the crime, as well as the identity of the perpetrator, who was brought to criminal responsibility for the first time, the presence of mitigating and non-aggravating circumstances and punishment. This punishment was imposed within the limits of the sanction of the article, according to which Fr. found guilty, and is not unduly lenient. In this regard, the judicial board of the Supreme Court found unfounded the arguments of the victim's petition for the reclassification of the actions of convicted O. to paragraph 2) of part 3 of Article 293 and paragraph 7) of part 2 of Article 106 of the Criminal Code and the imposition of the maximum sentence. The judicial board did not agree with the arguments of the victim's petition for an increase in compensation for moral damage collected from O. to 7,000,000 tenge. The court's decision regarding the recovery of moral damage is based on the requirements of Article 952 of the Civil Code and the clarifications of paragraph 8 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 7 dated November 27, 2015. "On the application by courts of legislation on compensation for moral harm," according to which, when determining the amount of compensation for moral harm, the court takes into account not only a citizen's subjective assessment of the severity of moral or physical suffering caused to him and objective evidence of this, but also the property status of the person responsible for the moral harm caused, and other confirmed materials business circumstances. The victim's link to in the petition for the prejudicial meaning for O. of the judgment of court No. 2 that has entered into legal force. Kostanay, dated August 29, 2016, in respect of Zh. the judicial board found it inconsistent with the requirements of the law.
Thus, the court verdict of August 29, 2016, which entered into force, assessed the actions of only Zh. At the same time, the issues of O. and I.'s guilt were not investigated. In accordance with the provisions of part 1 of Article 127 of the CPC, a sentence that has entered into legal force, as well as another court decision in a criminal case that resolves it on its merits, are binding on all state bodies, individuals and legal entities in relation to both the established circumstances and their legal assessment in relation to the person in respect of whom they taken out. Thus, according to the current criminal procedure law, a verdict that has entered into legal force has prejudicial significance only in relation to the person who was convicted by this verdict. In relation to other persons, this sentence does not entail legal consequences that restrict their rights and freedoms. The question of application to Fr. paragraph 2 of Article 4 of the Law of the Republic of Kazakhstan dated December 13, 2016 "On amnesty in connection with the twenty-fifth anniversary of Independence of the Republic of Kazakhstan" and the reduction by one-fourth of the unserved part of the term of the main sentence is subject to resolution in the order of execution of the sentence in the presence and occurrence of the conditions provided for by the specified norm of the Law on Amnesty. In view of the above, the judicial board left the judicial acts against O. unchanged, and the victim's petition in this part was not satisfied. In addition, the judicial board of the petition of the victim K. I. partially granted the request for review of judicial acts against the convicted person on the following grounds. Judicial acts against I. are reviewed by the court of cassation, taking into account the provisions of article 484 of the CPC that judicial acts in cases of moderate crimes are subject to cassation review. So, I. was put on trial under paragraph 1) of part 2 of Article 293 of the Criminal Code, that is, for committing a crime of moderate gravity. The materials of the criminal case, including the video from the surveillance cameras of the West nightclub, established that as a result of the incident, which arose due to an insignificant reason between B. and M., a fight took place, in which a group of people from both B. and M., including I., took part. who, being an acquaintance of B., went outside with the conflicting parties to clarify the relationship. At the same time, I., realizing that the conflict was over a minor matter between M. and B. He escalated into a fight and, supporting actions for a particularly audacious violation of public order, expressing obvious disrespect for society, joined a mass brawl and took direct part in it, using violence against K. Thus, the motive for I.'s actions are hooligan motives. By virtue of the above, the judicial board recognized the arguments of the victim about the need to retrain the actions of convict I. from Article 108 of the Criminal Code to paragraph 1) of part 2 of Article 293 of the Criminal Code, justified.
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