of January 12, 2009 No. 3
About court practice on cases on hooliganism
For the purpose of ensuring uniform court practice and need to make to courts explanations on the questions which arose in the field of application of the legislation on responsibility for hooliganism and in connection with change of the current legislation, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. According to the law penal hooliganism the intentional actions made with special impudence disturbing the public peace showing explicit disrespect of the guilty person for society and moral standards caused by his desire to contrast itself with people around, to show the negligence to them which were followed by use of violence to citizens or threat of its application can be acknowledged, and it is equal destruction or damage of alien property, or making of the obscene actions differing in exclusive cynicism.
2. The distinctive sign testimonial of bigger degree of public danger of penal hooliganism in comparison with disorderly conduct, is the special impudence of disorderly conduct expressing explicit disrespect for society.
In cases when strong language in public places, the offensive stickings to physical persons, the defilement of premises, places public and other similar actions expressing disrespect for people around, disturbing the public peace and tranquility of physical persons were followed by use of violence or threat of its application, and it is equal destruction or damage of alien property, such actions are beyond administrative offense and form structure of penal hooliganism.
Such criminal disorderly conduct expressing explicit disrespect for society which was followed by use of violence to citizens or threat of its application, destruction or damage of alien property or making of the obscene actions differing in exclusive cynicism can be recognized as especially impudent disorderly conduct. Long and persistently continuous disorderly conduct, failure of mass action, the temporary termination of normal activities of the company, organization, organization or public transport can be also referred to such actions.
It is necessary to understand the demonstrative violation of the universally recognized norms and rules of conduct dictated by desire of the guilty person to contrast itself with people around, to show negligence to them as explicit disrespect for society.
It is necessary to understand such actions which were followed by demonstrative neglect to the commonly accepted regulations of morality, for example, shamelessness manifestation, mockery at patients, the aged, being down and out persons and others as exclusive cynicism.
In the indictment and in sentence it shall be surely reflected in what especially impudent disorderly conduct was specifically expressed, and obscenity of hooligan actions was shown. Specify the qualifying hooliganism signs which were not imputed to person by criminal prosecution authorities, inadmissibly in sentence.
3. In case of plurality of crimes, some of them contain essential elements of offense, stipulated in Article 293 Criminal Codes of Kazakhstan (further - UK), it is necessary to be guided by the explanations on application of article 13 UK made in the normative resolution of the Supreme Court of the Republic of Kazakhstan of December 25, 2006 to No. 11 "About qualification of not momentariness and cumulative offenses".
It is necessary to delimit hooliganism from other crimes including which are commited by person from hooligan motives depending on content and orientation of its intention, motive, the purpose and circumstances of actions.
Drawing insults, beating, damnification to health and other similar actions made in family, concerning relatives, acquaintances and caused by personal aversions, the wrong actions of the victims, shall be qualified under the articles of the Criminal Code providing responsibility for crimes against the personality. When such actions were at the same time integrated to gross violation of public order, obvious to the guilty person, and expressed explicit disrespect for society, they should be qualified as hooliganism.
4. In case of otgranicheniya of the violence applied from hooligan motives from the violence committed in the course of the quarrel or fight because of personal aversions it is necessary to consider nature of relations of the guilty person and victim, occasion and the cause of conflict, to reveal who was his initiator, the activity rate and nature of actions of his participants, other circumstances testimonial of orientation of intention of the guilty person.
Cannot be considered as the murder committed from hooligan motives, causing heavy or average weight of harm to health only in connection with their making in the public place or in the presence of foreign citizens if motives of their making were, for example, jealousy, the revenge, aversions and other motives which arose because of personal relations, and equally illegal behavior of the victim initiating quarrel or fight.
5. In case of qualification of the hooligan actions of the guilty person integrated to murder or damnification to health of the person of varying severity it is necessary to be guided by the explanations containing in the normative resolution of the Supreme Court of the Republic of Kazakhstan of May 11, 2007 No. 1 "About qualification of some crimes against life and health of the person".
The making of hooligan actions which was followed by intentional causing little harm to health of the victim is completely covered by actus reus, provided by the corresponding part of article 293 UK.
At the same time, health of the person of harm of moderate severity, severe harm or making of murder from hooligan motives should qualify causing on the relevant standards of UK providing responsibility for the committed crimes against life and health of the person from hooligan motives.
The hooligan actions made both to and after causing death from hooligan motives, damnification of moderate severity or severe harm to health of the person from hooligan motives, and not related single intention, in all cases are subject to qualification independently by the corresponding parts of article 293 UK.
Careless damnification to health when making hooliganism cannot attract its qualification as the actions which were followed by use of violence.
6. When in case of hooliganism unlawful taking of alien property is made, it is necessary to establish, this property was for what purpose withdrawn. If person pursued the mercenary aim, its actions depending on occupancy method shall be qualified by property as cumulative offenses against property and hooliganism.
7. If when making hooligan actions as a result of intentional destruction or damage of alien property significant damage is caused, then such actions are subject to additional qualification under article 202 UK in the presence of the aggravating circumstances provided in this Article.
In case of the solution of question of whether significant damage is caused to the victim, it is necessary to proceed from cost destroyed or costs of recovery of the damaged property.
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