NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of May 11, 2007 No. 1

About qualification of some criminal offenses against life and health of the person

Due to the change of the legislation of the Republic of Kazakhstan and for the purpose of ensuring uniformity in application of the penal legislation about responsibility for making of criminal offenses against life and health of the person, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

1. For ensuring the correct application of the penal statute in case of qualification of criminal offenses against life and health and purpose of just punishment it is necessary to establish fault form, intention type, motives and the purpose, method, situation and stage of making of criminal offense, weight of the come effects. The conclusions bodies leaders shall motivate criminal procedure in procedural documents (the indictment, sentence) with reduction of admissible, attributable and mathematical evidences.

2. When making criminal offense by several persons it is necessary to find out whether there was between them previous concert on making of criminal offense, whether were cast what operations when making criminal offense are performed by each of them, and also all other circumstances based on which it is possible to draw conclusion on act making by group of persons, by group of persons by previous concert or criminal group, to determine form of partnership of each of persons made responsible, to individually qualify their actions and to impose just punishment.

3. According to part two of article 28 of the Criminal Code of Kazakhstan (further - UK) contractors of criminal offense should recognize persons who acted with single intention, directly participated in process of execution of criminal offense (carried out the objective party of criminal offense) or made criminal offense by means of use of other persons which are not subject to criminal prosecution owing to the age, diminished responsibility or other circumstances provided by UK or by means of mechanisms or animals. Their actions are subject to qualification by the corresponding part (Items) of Article providing responsibility for committed criminal offense without reference to article 28 UK.

Actions of other accomplices who according to the law are recognized organizers, helpers, instigators of criminal offense if they at the same time were not also collaborators of the same criminal offense, need to be qualified under Article providing responsibility for the criminal offense made by the contractor with reference to article 28 UK.

4. The ended criminal offense against life and health of the person, can be made both with direct, and with indirect intent, and attempt at their making from the subjective party is characterized only by direct intention. Therefore along with determination of stage of making of criminal offense it is necessary to consider also form of fault, to find out and determine what the intention of the guilty person what effects were caused by criminal offense, and the subjective relation of the guilty person to approach of such result was directed to. If the criminal offense was interrupted before its termination, then is subject to examination in this connection the guilty person stopped the actions whether it depended on its will, whether he at the same time had real opportunity to continue making of criminal offense what circumstances prevented approach of socially dangerous effects.

In this regard, attempted homicide, stipulated in Article 99 UK, it is necessary to recognize intentional actions when which making the guilty person realized their socially dangerous nature, was effective for the purpose of illegal causing death to the victim, expected its approach and wished it, but owing to circumstances death did not come.

5. The basis for qualification of murder on Item 1) of part two of article 99 UK is the intention of the guilty person on simultaneous causing death to several persons. In such cases murder of two and more persons is, as a rule, committed by one action or several actions in short period and demonstrates single intention of the guilty person on causing death to two and more persons.

If between murder of the first and murder of the second victim there passed certain time, then qualification on Item 1) parts two of article 99 UK is possible only in the presence at guilty single intention on causing death to both victims. For example, the perpetrator causes death to one victim in the beginning, and then for the purpose of implementation of the single intention directed to murder of two persons through certain time and in other place deprives of life and the second victim.

In case of orientation of intention of the guilty person on murder of two and more persons when result of criminal intent - the death of several persons did not come on the circumstances independent of will of the subject of crime, murder of one and attempted homicide of other person cannot be considered as the ended criminal offense - murder of two persons. In such cases of action of the guilty person for unfinished murder qualifications on part three of article 24 UK and Item 1) are subject to part two of article 99 UK, and the ended murder - on part one or part two of article 99 UK depending on availability or lack of the qualifying signs. At the same time the sequence of actions of the guilty person in case of simultaneous murder of one person and attempted homicide of other value for similar qualification has no.

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