About the court verdict

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4.

     A court verdict is the most important act of applying the law, which sums up all previous criminal proceedings.

     In order to improve judicial practice, eliminate existing shortcomings and improve the quality of sentences, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications.

According to the law, a verdict is a decision on a criminal case made on behalf of the Republic of Kazakhstan at a court hearing by a court of first and appellate instances on the guilt or innocence of the defendant and on the application or non-application of criminal punishment to him in compliance with the principles of justice specified in paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution) and in chapter 2 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter - CPC).

      When making decisions provided for in paragraphs 4), 5) of the first part of Article 431 of the CPC, the appellate instance issues a decision to overturn the verdict (decision) of the court of first instance and then, in compliance with the requirements of Chapter 46 of the CPC, a new verdict is passed.

     The verdict is binding on all state bodies, local governments, legal entities, officials, and citizens, without exception, and is subject to strict enforcement.

     Passing a sentence on behalf of the State and its significance require judges to be aware of their special responsibility for its legality and validity.

Courts should keep in mind that a verdict is lawful if it is issued by a lawful court in compliance with the rules of jurisdiction, in strict accordance with the requirements of the Criminal Procedure Law on the procedure of judicial proceedings based on the principle of competition and equality of the parties, ensuring their access to the examination of evidence on equal grounds, subject to the correct application of the rules of law.

     The validity of the verdict means that it is based on evidence that has been collected in compliance with the requirements of the law and has been fully, objectively and comprehensively examined directly at the court session, analyzed and properly evaluated, and the court's conclusions are motivated.

To draw the attention of the courts to the importance of observing the procedural rules governing the requirements for the form and content of the verdict, which contributes to the full disclosure of the content of the decisions taken by the court. It must meet both the form and content requirements of the articles. 395, 396, 397, 398, 399, 400, 401 The Criminal Procedure Code.

     When drafting a verdict, one should be guided by the internal documents of the judicial system regulating issues of legal technique and the parameters of drafting judicial acts.

The verdict is presented in the language of legal proceedings, in clear, understandable terms, without unnecessary repetitions of identical phrases and cumbersome sentences. The verdict is presented sequentially so that each new provision follows from the previous one and is logically connected with it. It is unacceptable to describe events that are not related to the case under consideration, the use of inaccurate wording, unacceptable abbreviations, words and expressions that are unacceptable in official documents. The testimony of the participants in the trial is provided by a third party and should contain only information that relates to the case under consideration. In this case, it is necessary to reflect the file number and the time of the interrogation of the specified person in the case of recording the court session by means of audio or video recordings.

      Corrections to the verdict in accordance with the fifth part of Article 395 of the CPC can be made only in the conference room, stipulated and certified by the judge's signature on the relevant page of the verdict. Making any corrections after its proclamation is not allowed. All issues are resolved and stated in the verdict so that there are no difficulties in its execution. The full text of the verdict must be prepared in the conference room, signed by the judge and then announced at the same court session in which the trial ended. A copy of the verdict must be handed over to the convicted or acquitted person, the defense attorney and the prosecutor within five days, and in case of a large volume – no later than fifteen days after its proclamation. A copy of the verdict is handed over to other participants in the process within the same period from the moment of receipt of the petition.

     After the verdict is pronounced, the presiding judge explains the substance of the decision, which is noted in the minutes of the court session.

      At the same court session, the presiding judge must explain the time and procedure for appealing the verdict, its execution, the consequences of non-execution of the sentence and other issues provided for in Article 402 of the CPC.

     The announcement of oral conclusions that are not written in accordance with the law and are not signed by a judge is not a court verdict.

Explain to the courts that in each case, in one trial, regardless of the number of defendants, only one verdict is passed. If the defendant is charged with committing several criminal offenses, the court, if there are grounds for that, decides the verdict, which justifies him in some episodes of the charges, and condemns him in others.

     When considering a case against several persons, the court in one verdict, depending on the circumstances established during the judicial investigation, may decide to acquit some and to find others guilty.

A guilty verdict is issued if the court has indisputably established that a criminal offense has been committed, this criminal offense was committed by the defendant, he is guilty of its commission, his guilt is confirmed by evidence collected in compliance with the requirements of the law. At the same time, there should be no grounds for terminating the proceedings and no grounds for referring the case to the prosecutor provided for in article 323 of the CPC. A person's guilt in committing a criminal offense is recognized as proven only in cases where the court, guided by the presumption of innocence, examined all the evidence directly, interpreting all the irremediable doubts in favor of the defendant, and within the framework of due process of law gave answers to all the questions specified in article 390 of the CPC.

A guilty verdict with the imposition of a criminal penalty to be served by a convicted person is issued against a person guilty of committing a criminal offense, provided that he is liable to punishment for the committed criminal offense and there are no obstacles to his appointment and serving.

In accordance with part six of Article 393 of the CPC, a guilty verdict with the imposition of criminal punishment and release from serving it is decided if the circumstances provided for by law are established at the court session, namely:

     if, by the time of its issuance, an amnesty act has been issued, exempting the convicted person from applying the punishment or serving the sentence imposed on him for the criminal offense he has committed.;

      when the time spent by the defendant in custody in this case, taking into account the rules of offsetting established by Article 62 of the Criminal Code, absorbs the punishment imposed by the court.

      A guilty verdict against a person who has committed a criminal offense, a crime of minor or moderate gravity with the imposition of criminal punishment and release from serving it may also be issued if the extraordinary circumstances that have arisen have caused particularly serious consequences for his family members (part one of Article 76 of the Criminal Code).

      A mental disorder of a person that makes it impossible for him to realize the actual nature and social danger of his actions (inaction) or to direct them, which occurred after the commission of a criminal offense, but before sentencing in a case submitted to the court with an indictment, in accordance with the first part of Article 75 of the Criminal Code, is also a circumstance by virtue of which the perpetrator A person cannot serve a sentence for a criminal offense. In such cases, the court decides on a guilty verdict with sentencing and release from serving it. At the same time, the court decides on the need to apply compulsory medical measures provided for in article 93 of the Criminal Code.

      In cases where an act prohibited by criminal law was committed by a person in a state of insanity or a person became ill with a mental disorder after sentencing, making it impossible to carry out the punishment, the court issues a ruling based on the first part of Article 521 of the CPC.

The issue of termination of a criminal case by a court on the basis of an amnesty act is subject to consideration with a preliminary hearing with the participation of the defendant in accordance with the first part of Article 321 of the CPC. In this case, the decision to terminate the case is made by the court in the absence of circumstances preventing the application of the amnesty act, which specifies the grounds for termination of the case and the defendant's consent to the application of the amnesty act. The consent of the defendant is understood as a full recognition of the charges brought against him and the civil claim filed. The decision to terminate the case must comply with the requirements of Article 327 of the CPC and resolve issues of civil claim recovery. It should be noted that according to the requirements of the first part of Article 170 of the CPC, the court must satisfy the civil claim in full. In the same decision, the court resolves the issue of material evidence in accordance with the procedure established by part three of Article 118 of the CPC.

In the event that the defendant considers himself innocent or does not agree with the civil claim, the court appoints and conducts the main trial, which ends, if there are grounds for it, with a verdict of guilty, with the imposition of punishment and release from it.

      If circumstances preventing the application of the amnesty act are not established during the judicial investigation, the court, in accordance with article 343 of the CPC, terminates the case as a result of the amnesty act.

      The issue of applying the amnesty act in criminal cases where money and other criminally acquired valuables, items of illegal business and contraband are recognized as material evidence is resolved in the main court proceedings, since in accordance with paragraph 4) In the third part of Article 118 of the CPC, these items are subject to conversion to the state's income by court verdict.

Explain to the courts that the death of the defendant entails the termination of the proceedings at any stage of the proceedings by issuing a ruling based on paragraph 11) of the first part of Article 35 and articles 327, 343 of the CPC. If there is a petition from the parties for the rehabilitation of the deceased or for consideration of the case against other persons who have committed a criminal offense together with him, as well as the identification of criminally acquired property, funds and other valuables subject to confiscation or providing compensation for the damage caused, the proceedings in the case shall continue and be completed, if there are grounds for that, by a resolution a guilty verdict against the deceased. At the same time, the operative part of the verdict formulates a conclusion on finding him guilty under the relevant article of the criminal law without imposing punishment.

      A guilty verdict without imposing criminal punishment or with exemption from criminal liability is issued against a minor if there are grounds provided for in article 83 of the Criminal Code. In this case, compulsory measures of educational influence may be applied to a minor.

The courts should keep in mind that in the event of the expiration of the limitation period for criminal prosecution established by Article 71 of the Criminal Code, the proceedings in the case are subject to termination by issuing a ruling based on paragraph 4) of the first part of Article 35, Articles 327 and 343 of the CPC at the preliminary hearing stage or in the main trial.

     If the defendant objects to the termination on the specified grounds, the proceedings in the case shall continue and be completed, if there are grounds for that, by a verdict of guilty with release from criminal liability for the committed criminal offense.

     If the statute of limitations is established in the main court proceedings, for example, in the case of a reclassification of a criminal offense, the court decides on a guilty verdict with the release of the guilty person from criminal liability.

      The issue of applying the statute of limitations to a person who has committed a criminal offense for which the death penalty or life imprisonment may be imposed is resolved by the court only in the main court proceedings by passing a verdict. In this case, the court has the right to apply the statute of limitations, pass a guilty verdict and release the person from criminal liability. If the court does not consider it possible to release the person from criminal liability due to the expiration of the statute of limitations, it decides on a guilty verdict with sentencing in accordance with the fifth part of Article 71 of the Criminal Code.

In accordance with the first part of Article 36 of the CPC, the court has the right to terminate the proceedings in the case or to issue a guilty verdict with the release of the guilty person from criminal liability on non-rehabilitating grounds in connection with his active repentance, reconciliation with the victim, including through mediation, and making amends for the harm caused to him, if the limits of necessary defense are exceeded due to fear., fright or confusion caused by a socially dangerous assault, with a minor lagging behind in mental development, not related to a mental disorder, that is, in the cases provided for in part one of Article 65, articles 66, 67, parts two and three of Article 68, part one of Article 83, part three of Article 15 of the Criminal Code and on other non-rehabilitating grounds for exemption from criminal liability, directly provided for in the General Part of the Criminal Code.

      The circumstances provided for in the notes to articles 125, 175, 253 (para. 1), 255, 261, 267, 287, 288, 296 ( paragraph 2), 347, 367 (paragraph 2), 426, 442, 444, 445, 446, 447, 453 UK.

      In all these cases, if there is no dispute between the parties about the existence of circumstances leading to exemption from criminal liability, the proceedings in the case are terminated by a decision at the preliminary hearing stage or in the main trial on the basis of paragraph 12) of the first part of Article 35, part one of Article 36, articles 327 and 343 of the CPC.

      A guilty verdict with exemption from criminal liability on these grounds is issued only after the conclusion of the main trial in accordance with part five of article 393 of the CPC.

In accordance with part eight of Article 393 of the CPC, a guilty verdict with sentencing and postponement of serving the sentence on the basis of part one of Article 74 of the Criminal Code, subject to the restrictions established by this norm, is issued against pregnant women and women with young children, men raising young children alone.

      A guilty verdict with sentencing and postponement of serving the sentence on the basis of the second part of Article 76 of the Criminal Code, taking into account the restrictions established by this norm, is issued against persons who have committed a grave or especially grave crime, upon the occurrence of particularly grave consequences for members of his family due to extraordinary circumstances.

     At the same time, the courts should bear in mind that the existence of at least one of the grounds provided for in part one of Article 74 or part two of Article 76 of the Criminal Code obliges them to discuss and resolve the issue of postponing the serving of the sentence, citing the reasons.

The introductory part of the sentence must comply with the requirements of Article 396 of the CPC and begin with an indication that it was issued in the name of the Republic of Kazakhstan. The date of the verdict is the day, month and year of its proclamation. The place of the decision is the city or other locality where the verdict was actually pronounced and signed by the presiding judge or the composition of the court during the collegial consideration of the case.

     In this part of the verdict, in addition, the full and exact name of the court that issued the verdict, the composition of the court with an indication of positions, the public prosecutor, the defender, the secretary of the court session, the translator, other participants in the process, their representatives, if they participated, must be indicated. For each person mentioned in the introductory part of the sentence, it is necessary to indicate not only the surname, but also the initials. All information about the defendant listed in paragraph 4) of Article 396 of the CPC is reflected, while information about the surname, first name, patronymic, year, month, day and place of birth must correspond to the identity document.

     It also indicates whether a case was considered in an open or closed court session, on the use of audio-video recording by the court, on the consideration of a case completed in an expedited pre-trial investigation, on its consideration in an abbreviated procedure, conciliation, writ proceedings or in private prosecution.

To clarify that other information about the defendant's identity that is relevant to the case may include data that is taken into account when assigning punishment, when determining the type of institution of the penal system, establishing the type of recidivism, and qualifying actions. In particular, these are data on outstanding and unreturned criminal records, on the application of the amnesty act, on the disability of the defendant, and other information.

     When providing information on outstanding criminal records, the date of conviction, the criminal law, the type and amount of both the main and additional punishment, serving the sentence in places of deprivation of liberty, the basis and date of release from punishment are indicated. The name of the court by which the defendant was convicted earlier is indicated only if the imposed sentence has not been served and a new punishment can be imposed based on a set of criminal offenses or a set of sentences.

     Expunged and expunged criminal records are not indicated in the introductory part of the sentence, except in cases where an amnesty act was previously applied to the defendant, and this circumstance is important for deciding whether to apply the newly issued amnesty act to him.

     In the introductory part of the sentence, it is necessary to indicate the criminal law providing for the criminal offense of which the defendant is accused and for which he is being tried (article, part, paragraph). If the charges are changed during the preliminary hearing or in the main trial, it is indicated which criminal offense the defendant has been definitively charged with.

     The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

One of the conditions for passing a lawful sentence is that the descriptive and motivational part corresponds to the evidence examined at the court session. When drafting this part, the court is obliged to comply with the requirements of article 397 of the CPC.

The descriptive part of the sentence must contain a description of the criminal act recognized by the court as proven, indicating the place, time, method of its commission, the form of guilt, motives and consequences of the criminal offense. This description should be clear and concise. If a criminal offense is committed by a group of persons, a group of persons by prior agreement, or an organized group, the specific criminal acts committed by each of the defendants must be described.

     When making a verdict on multiple-episode criminal offenses, it is necessary to observe the chronology and sequence of events in their interrelation. Episode descriptions can be numbered with numbers 1, 2, 3, etc.

     The reasoning part reflects the defendant's attitude to the charge. The defendant's attitude to the charge must contain his specifically formulated position on admitting the charge in whole or in part, in which part of the charge or according to which criminal law qualification he admits guilt and in which part he does not agree with the charge or does not fully admit guilt.

     The motivational part also contains the testimony of the victim, witnesses, the contents of the deposited testimony examined at the court session, protocols of procedural actions, and case materials. The link to the protocols of the procedural actions and other materials should contain an indication of the volumes and pages of the criminal case.

     The same part substantiates the application of normative legal acts, and, if necessary, international treaties ratified by the Republic of Kazakhstan, the provisions of which relate to the criminal case under consideration.

      It also provides an analysis of the evidence, the court's conclusions on the evidence of the charge and the qualification of the act, the reasons for which the court accepted some evidence and rejected others, an assessment of each argument by the defense and the prosecution, justification for decisions on punishment and type of recidivism, civil action, material evidence, distribution of procedural costs and other issues provided for in Article 390. The CPC follows the same sequence. The reasoning part is the justification of the decisions set out in the operative part, and therefore should not conflict with it.

The reasoning of the guilty verdict sets out an assessment of the arguments of the defendant, given by him in support of his position.

     If the defendant changes his testimony given by him during the pre-trial proceedings in the case, the court must carefully examine all his testimony, find out the reasons for their change, and, together with other evidence, give them an objective assessment.

     It should be borne in mind that the defendant's refusal to testify is not proof of his guilt. Non-admission of guilt and refusal to give evidence to the defendant should be regarded as a way of defending against the charges and they should not be taken into account as circumstances that negatively characterize his personality.

      In accordance with subparagraph 9) of paragraph 3 of article 77 of the Constitution, no one can be convicted solely on the basis of his own confession. In this regard, courts should keep in mind that the defendant's admission of guilt can be used as the basis for a guilty verdict only if the guilt is confirmed by a combination of other evidence collected in the case.

Due to the presumption of innocence and in accordance with article 19 of the CPC, a guilty verdict cannot be based on assumptions and must be supported by a sufficient body of reliable evidence.

     The text of the verdict must contain a reasoned decision on the petitions of the parties concerning additional evidence, their relevance, admissibility and reliability, unless a separate decision was made on these petitions during the main trial.

     All possible versions of the case should be investigated. Any contradictions between the evidence are subject to clarification and evaluation. Irremediable doubts about the defendant's guilt, as well as doubts arising from the application of criminal and criminal procedure laws, are interpreted in his favor.

When presenting evidence in the reasoning part of the verdict, the court should not limit itself to listing and quoting their contents, it is obliged to make a comprehensive analysis of them, evaluate all the evidence, both incriminating and justifying the defendant, both confirming the conclusions of the court and contradicting these conclusions.

     When considering a case against several defendants or when a defendant is accused of committing several criminal offenses, the court must provide an analysis of the evidence against each defendant and for each charge. When presenting evidence, it is necessary to indicate which circumstances they confirm, which they refute, and why some evidence is recognized as reliable and others are rejected.

      When assessing evidence, courts should be guided by the provisions set out in subparagraph 9) of paragraph 3 of Article 77 of the Constitution, articles 112 and 125 of the CPC, and keep in mind that evidence obtained in violation of the law has no legal force and therefore cannot be used as the basis for a guilty verdict, as well as used in proving any circumstances specified in Article 113 of the CPC. If the evidence is found to have been obtained in violation of the law, the court must justify in the verdict its decision to exclude it from the totality of evidence in the case, indicating what the violation of the law was.

When considering criminal cases, courts must observe the principle of the immediacy of judicial proceedings. According to article 331 of the CPC, the verdict should be based only on the evidence that was examined directly in the main trial. The court has no right to refer in the verdict to evidence in support of its conclusions, if they were not the subject of research at a court hearing with the participation of the parties.

      The disclosure of the testimony of the defendant, victim, and witnesses obtained during the pre-trial proceedings in the case, as well as the reproduction of sound recordings, video recordings, or film recordings attached to the interrogation protocol, their testimony, and a reference to them in the verdict are possible only in cases provided for in articles 368 and 372 of the CPC. The factual data contained in these statements can be used as the basis for the court's conclusions only after their verification, comprehensive investigation and confirmation in the main court proceedings.

     In the case of a shortened judicial investigation, the verdict may be based on evidence obtained during the investigation and inquiry and not challenged in court by the parties. If there is a dispute about the evidence obtained during the pre-trial investigation, they must be checked and examined directly at the court session. In this case, the court must order a full judicial investigation.

If the victim, a witness who is a spouse or a close relative of the defendant refuses to testify, as well as if the defendant himself or a clergyman refuses to testify, the court has the right to refer in the verdict to the testimony given by these persons earlier, only if during the pre-trial proceedings in the case, before the interrogation, they were explained the provisions contained in subparagraph 7) of paragraph 3 of Article 77 of the Constitution, in articles 28 and 78 of the CPC, according to which no one is obliged to testify against himself, his spouse and close relatives, as well as against persons, those who trusted the priest in confession.

Based on the fact that the trial is conducted only in relation to the defendants, the court should not allow in the verdict formulations indicating the guilt of other persons who have not been tried for a criminal offense.

     If individual participants in a criminal offense are exempted from criminal liability on the grounds provided for in the law, the court may provide information in the verdict on the participation of such persons in the commission of a criminal offense with mandatory indication of the grounds for termination of proceedings in order to establish the degree of the defendant's participation in the criminal offense, the qualification of his actions and other essential circumstances of the case.

     If the case against some of the accused is separated into separate proceedings, the verdict indicates that the criminal offense was committed by the defendant jointly with other persons, without mentioning their surnames.

If the defendant is accused of committing several criminal offenses qualified by different articles of the criminal law (parts of articles), and the charge of committing some of them has not been confirmed, the court is obliged to provide in the reasoning part of the verdict the reasons for the defendant's conviction of some criminal offenses and acquittal of others, and in the operative part of the verdict formulate an appropriate decision on finding the defendant guilty under some articles and acquittal under other articles of the criminal law.

In the case when the defendant is accused of committing several criminal offenses that are qualified by one article of the criminal law (for example, several thefts or several episodes of ongoing criminal activity), and his guilt in some of them has not been confirmed, the court should formulate a conclusion in the reasoning part that the charges in this part are unfounded with evidence, and in the operative part, indicate the acquittal of the defendant in individual episodes.

In case of non-confirmation of the charge in part (if there is no evidence or lack of qualifying features), if this entails a change in the qualification of the deed, the court formulates a conclusion in the reasoning part of the verdict that the charges in this part are unfounded, and in the resolution part indicates the final decision on finding the defendant guilty of committing a proven criminal offense.

In the same cases, when the lack of proof of the charge in part does not entail a change in the qualification of the act (the article and part of the article remain the same), it is sufficient for the court to formulate a conclusion in the reasoning part of the verdict, stating the motives, that the charges in this part are unfounded.

If the defendant has committed one criminal offense, which is erroneously qualified by several articles of the criminal law, it is enough for the court to indicate in the reasoning part of the verdict the exclusion of the wrongly imputed article (or articles), citing the appropriate motives.

If it is necessary to qualify a criminal offense under an article of the law for which the defendant has not been charged, the court should proceed from the fact that such a change in qualification is permissible only on condition that the defendant's actions, qualified under the new article of the law, are imputed to him, do not contain signs of a more serious criminal offense and do not significantly differ in factual circumstances. from the final charge supported by the public prosecutor in the main trial, and changing the charges will not worsen the defendant's situation and will not violate his right to defense.

      At the same time, it should be borne in mind that a more serious charge or one that differs from the original one may be brought against the defendant during the main trial by the prosecutor in accordance with part five of Article 340 of the CPC by drawing up a new indictment.

     The victim's petition to bring a more serious or different charge against the defendant is subject to satisfaction only if it is supported by the prosecutor.

     An accusation is considered more serious when: another norm of the criminal law (article, part of the article) is applied, the sanction of which provides for a more severe punishment; additional facts and episodes that are not imputed to the defendant, qualifying signs, aggravating circumstances, entailing a change in the qualification of a criminal offense to a law providing for a more severe punishment, or increasing the volume of accusations, although they do not change the legal assessment of what was done.

      Any other change in circumstances and information listed in paragraphs should be considered a different charge from the original one in factual circumstances. 1), 2), 3) 4) of the third part of Article 299 of the CPC, entailing a violation of the defendant's right to defense.

If the previously filed charge is subject to reclassification to articles of the criminal law providing for liability for criminal offenses, cases for which are initiated only on the complaint of the victim (listed in parts two and three of Article 32 of the CPC), the court, if there is a victim's statement in the case or his oral appeal at a court hearing to bring the defendant to criminal responsibility. liability may qualify the defendant's actions under the specified articles of the criminal law and impose a guilty verdict.

      In the absence of a victim's statement (complaint) in the case on bringing the defendant to criminal responsibility, or when he refused the charge at a court hearing or declared his reconciliation with the defendant, the court justifies the conclusion that it is necessary to qualify the defendant's actions under the above articles of the criminal law and terminates the proceedings by a decision based on paragraph 5) of part the first article 35 and Article 343 of the CPC.

      In the absence of a complaint from the victim in the case or if he refuses to prosecute the defendant, the charge of committing a criminal offense prosecuted in private or in a public-private manner may be supported by the prosecutor at a court hearing only if there are circumstances specified in part four of Article 32 of the CPC. The consideration of the case in such circumstances, if there are grounds, ends with a verdict of guilty.

Recognizing the defendant guilty of committing a criminal offense on grounds subject to assessment (for example, special cruelty, obvious disrespect for society, significant violation of rights, grave consequences, etc.), the court is obliged to cite in the reasoning part of the verdict the circumstances that served as the basis for concluding that there was one or another qualifying feature in the deed.

The grounds for recognizing a recidivism of crimes established during the main trial are set out in the reasoning part. The type of recidivism should be reflected in the operative part of the sentence.

When drafting a verdict in a multi-episode case, it is permissible to state the established circumstances of a criminal offense, taking into account the chronology of events and evidence confirming the court's conclusions on guilt and the legal assessment of the act, for each episode or criminal offense separately. At the same time, after analyzing the evidence and qualifying the actions of the perpetrators by episode, the court should, in the reasoning part, substantiate a generalizing conclusion about the scope of the proven charge as a whole in relation to each defendant and the final qualification of his actions.

The limits of the main trial are specified in article 340 of the CPC, it is carried out only in relation to the defendant and to the extent of the charge on which he is being tried, unless it has been changed during the preliminary hearing or in the main trial.

     If the public prosecutor has changed the charge and the victim does not insist on the former, the court, when making a decision, proceeds from the new charge, which is finalized during the judicial investigation or judicial debate.

     If the public prosecutor and the victim completely reject the charges, the proceedings in the case are terminated by issuing a reasoned decision.

     If the public prosecutor has refused to charge, and the victim insists on the previous charge, the court releases the prosecutor from further participation in the trial and continues to consider the case with the participation of a private prosecutor or his representative, depending on the established, decides a guilty or acquittal verdict based on the charges on which the defendant was tried.

     In case of partial refusal of the public prosecutor and the victim from the charge, the court terminates the proceedings in this part of the case by a separate decision, which is issued by the court simultaneously with the verdict issued on the charges in the remaining part.

     In case of a change in the charge, the court must have a new motivated wording of the charge in writing, submitted by the public prosecutor. The refusal of the public prosecutor to charge in whole or in part is also submitted to the court in writing, stating the reasons.

If a defendant is charged under several articles of the criminal law and the court, during the main trial, concludes that it is necessary to dismiss the case for some of them, the decision on this is set out in a separate decision, and the verdict indicates that the case against the defendant for committing other criminal offenses has been terminated.

Having resolved the issues of qualification of the defendant's actions, the court, in the reasoning part of the verdict, in compliance with the rules specified in articles 52 to 64, articles 81, 82, 83 of the Criminal Code, justifies its conclusion on the punishment of the perpetrator. In the case of the conviction of several persons, the conclusion on the imposition of punishment is formulated in relation to each of them separately.

When passing a guilty verdict, the court is obliged to consider a civil claim filed in a criminal case, give the floor to the parties on it, give their opinion in the verdict and, with reference to the substantive law, make one of the decisions provided for in article 170 of the CPC. If the claim is satisfied in whole or in part, the sentence sets a time limit for voluntary execution.

     If the court is considering a case against several defendants whose actions have caused property damage, the verdict, citing the reasons, indicates whether civil liability is being recovered in solidarity or equity.

     When it is impossible to make a detailed calculation of a civil claim and this circumstance does not affect the qualification of a criminal offense, the court recognizes the civil plaintiff's right to satisfy the claim with reasons and submits the issue of its size for consideration in civil proceedings.

      When deciding whether to dismiss a claim, the court checks whether these actions do not contradict the law, whether someone's rights and legally protected interests are violated. At the same time, it should be borne in mind that, in accordance with the third part of Article 169 of the CPC, the waiver of a claim is accepted by the court with a decision to terminate the proceedings in this part at any time during the trial, but before being removed to the deliberation room for sentencing.

Proceeding from the fact that upon filing a civil claim in a criminal case, only the plaintiff is exempt from paying the state fee, in cases of satisfaction of the claim in whole or in part, the court decides in the verdict on the recovery of the state fee from the defendant(s) to the state revenue in full or in proportion to the satisfied part of the claim on the basis of the first part of Article 117 of the Civil Procedure Code of the Republic of Kazakhstan.

      Then the reasons for the decisions on the fate of the physical evidence and the procedural costs are given, while the court proceeds from the requirements of the third part of Article 118, articles 177, 178 of the CPC.

Compensation for certain categories of victims, provided for in article 173 of the CPC, is paid by the central authorized body for budget execution on the basis of a decision of the criminal prosecution body in accordance with the provisions of the Law of the Republic of Kazakhstan dated January 10, 2018 No. 131-VI "On the Victims Compensation Fund" (hereinafter referred to as the Law on the Fund). The decision on recourse claims against the convicted person on the return of money paid as compensation to the victim from the Victims Compensation Fund (hereinafter referred to as the Fund), on the recovery of compulsory payments to the Fund and their amounts are also subject to reflection in the operative part of the conviction. The amount of the compulsory payment is determined in accordance with the procedure provided for in Articles 98-1, 98-2 of the Criminal Code, the norms of which enter into force on July 1, 2018.

     The footnote. Paragraph 36 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

      36-1. The court must collect compulsory payments to the Fund from convicted persons in accordance with the provisions of articles 98-1 and 98-2 of the Criminal Code and the Law on the Fund.

     The collection of a compulsory payment is mandatory when the court passes every guilty verdict and from every convicted person, including when committing a criminal offense by a group of persons.

     In the case of a combination of criminal offenses, a compulsory payment corresponding to the category of the most serious criminal offense is collected from the convicted person.

      When imposing a penalty for a combination of criminal offenses, according to the rules of part six of Article 58 of the Criminal Code, the court must decide to collect a single compulsory payment for two sentences. If, according to the first sentence, a person was convicted of the most serious criminal offense with the collection of a corresponding compulsory payment, then the compulsory payment is not collected again by the last sentence. If a person is convicted of the most serious criminal offense by the last sentence, then the amount of the compulsory payment corresponding to this category of criminal offense is collected, offsetting the payment collected by the first sentence.

     Compulsory payment is collected by the court without any exceptions. The Criminal law does not contain grounds for exemption from compulsory payment. For the recovery of a compulsory payment, the presence of a victim in the case, the filing of a civil claim or its absence, compensation for damage and other circumstances do not matter legally.

      Compulsory payment is made for criminal offenses committed after June 30, 2018.

     When determining the amount of the compulsory payment, it is necessary to proceed from the monthly calculation index in force at the time of the commission of the criminal act.

     If the court of first instance did not collect a compulsory payment from the convicted person when passing the guilty verdict, the court of appeal has the right to do so at the request (protest) of the prosecutor or the complaint of the victim.

     The footnote. The regulatory resolution was supplemented by paragraph 36-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

Due to the fact that all parts of the verdict together form a logically coherent document, the operative part of the conviction must comply with the requirements of article 398 of the CPC and follow from the introductory and descriptive-motivating parts. The issues to be resolved in the operative part are set out in the order in which they are listed in the law. The decision to find the defendant guilty in the operative part, specifying the criminal law (article, part, paragraph), follows from the wording of the charge indicated in the descriptive and motivational part.

     In addition, the operative part of the indictment specifies: the type and amount of the main and additional punishment imposed on the convicted person for each criminal offense of which he was found guilty; and, in appropriate cases, according to the totality of criminal offenses and the totality of sentences; the decision to cancel or maintain a suspended sentence, parole; on deprivation of liberty. convicted of state awards, titles, class rank, diplomatic rank, qualification class, deprivation of citizenship of the Republic of Kazakhstan; on the measure of restraint, on the beginning of the calculation of punishment; on the calculation of pre-trial detention; on the appointment of compulsory treatment and the establishment of guardianship over the convicted person; on the type of recidivism.

     In case of conviction of several persons under several articles of the criminal law, punishment is assigned to each of them first for each criminal offense of which he is found guilty, then to each - according to the totality of criminal offenses, if there are grounds - according to the totality of sentences.

     When imposing a custodial sentence, the court indicates in the operative part of the sentence its term (the number of years in words), the type of regime of the institution of the penal system in which the convicted person should serve it, the beginning of the calculation period, and the calculation of the time in custody in this case. The procedure for serving imprisonment (in institutions of the penal system of a certain type of regime) is indicated only after the final penalty is imposed.

If a more lenient punishment is imposed than is provided by law for this criminal offense, or if additional punishment is not applied as required by the sanction of the article, the operative part indicates that the punishment was imposed on the basis of article 55 of the Criminal Code. A person guilty of committing several criminal offenses is punished first with the application of Article 55 of the Criminal Code for one or for each of the committed criminal offenses, and then according to the rules of Article 58 of the Criminal Code.

In case of a suspended sentence, the court establishes probation control for the entire term of imprisonment, and for minors for a period of six months to one year. Probation control includes the performance by a convicted person of the duties specified in the second part of Article 44 of the Criminal Code. If a person commits several criminal offenses, the decision that the punishment is imposed conditionally with the application of Article 63 of the Criminal Code is indicated after the final penalty is imposed.

Having come to the conclusion that it is necessary to release the convicted person from punishment in cases stipulated by law, the court in the operative part of the conviction finds him guilty of committing a criminal offense, appoints punishment, and then indicates release from serving the sentence with reference to the law.

     When passing a guilty verdict without imposing punishment, in the operative part, the court indicates the decision on finding guilty, that punishment is not imposed with reference to the law, and in relation to a minor, on imposing compulsory educational measures.

     The operative part of the conviction, with the release of the person from criminal liability, contains a decision to find the defendant guilty of committing a criminal offense and to release him from criminal liability with reference to the law.

     When passing a guilty verdict with the imposition of punishment and postponement of its serving in the operative part, the court finds the defendant guilty of committing a criminal offense, appoints the punishment and formulates a decision on postponement of serving the sentence with reference to the law and indicating the time of postponement.

     Recognizing the charge as incompletely proven, the court in the operative part of the conviction, in addition to the decision on conviction for proven criminal offenses, formulates a decision on acquittal for individual episodes of a criminal offense and articles of the criminal law, indicating the grounds.

The operative part of a guilty verdict must always contain a court decision on the measure of restraint against the defendant before the verdict enters into legal force. At the same time, it should be borne in mind that when passing a guilty verdict with release from criminal liability, without sentencing, with release from punishment, when sentenced to punishment unrelated to imprisonment, or to imprisonment and other suspended punishments, the operative part of the sentence should contain a decision on the immediate release of the defendant from prison.in custody.

By imposing an additional penalty in the form of confiscation of property, the court in the operative part indicates the amount of property subject to confiscation. The procedure for confiscation is defined by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of criminal punishment".

When deciding on a civil claim, the court indicates in the operative part of the verdict the decision to satisfy the civil claim in whole or in part, indicating the amount to be recovered, or to recognize the civil plaintiff's right to satisfy the claim and transfer the issue of its amount to consideration in civil proceedings, or to refuse to satisfy the civil claim, or leaving a civil claim without consideration, on the amount of the state fee to be collected from the defendant(s) to the state revenue, on setting a time limit for the voluntary execution of a sentence in respect of a civil claim.

     When satisfying a civil claim brought against several defendants, the court in the operative part indicates which specific amounts and from whom are to be recovered, in a joint or shared manner.

The operative part of the conviction reflects the court's decisions on the fate of the physical evidence and on the distribution of procedural costs. When formulating a decision on physical evidence, the court specifically specifies which items are to be destroyed, which of them are transferred to their rightful owners or interested persons and institutions at their request, which are transferred to the state's revenue, which remain in the case. On the issue of procedural costs, the operative part of the verdict indicates in what amount and to whom they are imposed or accepted at the expense of the State.

     In the same part of the sentence, it is necessary to set out the decision on whether or not it is necessary to continue implementing security measures against protected persons, maintaining measures to ensure a civil claim or confiscation of property, if any.

     It also explains the procedure and time limits for appealing or bringing a motion against the verdict by the prosecutor.

The issues of placement of unsupervised minor children, elderly parents, and other dependents of both the convicted person and the victim, as well as issues related to the protection of their property and homes, are resolved not in the verdict, but in a separate decision issued simultaneously with the verdict.

     The court decides on the amount of remuneration to be paid for the provision of legal assistance to the defender as appointed in a separate decision issued simultaneously with the verdict or after its proclamation at the request of interested persons.

The structure and content of a writ of guilty verdict must comply with the requirements of article 629-5 of the CPC.

The courts should keep in mind that the second part of Article 394 of the CPC establishes an exhaustive list of grounds for an acquittal, by which the court recognizes and proclaims the innocence of the defendant in committing a criminal offense on the charge on which he was tried or on charges modified by the prosecution during the preliminary hearing or in the main trial.

     An acquittal in the absence of a criminal offense event is decided in cases where the act imputed to the defendant was not committed by the defendant, or when the specified consequences occurred as a result of the actions of the person who was harmed, or independently of someone's will, for example, as a result of the action of the forces of nature.

     An acquittal for the absence of elements of a criminal offense in actions is decided if: the act, although committed by the defendant, is not recognized as criminal by criminal law; what he has done only formally contains signs of a criminal offense, but because of its insignificance does not pose a public danger; there are no conditions provided by law for recognizing the presence of elements of a criminal offense (repeated acts, non-occurrence of legally defined consequences, etc.); the act was committed in a state of necessary defense or extreme necessity; the person voluntarily refused to commit a criminal offense, etc.

     If the fact of a socially dangerous act and its consequences is established, but the evidence presented and examined at the court session excludes or does not confirm that the defendant committed it, the court decides an acquittal for failure to prove that he committed a criminal offense.

If the circumstances specified in paragraphs 1) and 2) of the first part of Article 35 of the CPC are discovered (absence of a criminal offense event, absence of elements of a criminal offense in the act) during the preliminary hearing, in the absence of a dispute, the court issues a decision to terminate the proceedings on the basis of Article 327 of the CPC. If the same circumstances are found in the main trial, the court brings the proceedings to an end and decides an acquittal.

The descriptive and motivational part of the acquittal must comply with the requirements of Article 399 of the CPC and contain the wording of the charge supported by the prosecution in court arguments, a description of the circumstances of the case as they were established by the court, evidence and their analysis, the reasons why the court rejected the evidence underlying the charge, and the court's summary conclusion that the charge it has not been confirmed.

     The use of language in an acquittal that casts doubt on the innocence of the acquitted person is not allowed.

     In the case of an acquittal verdict against a person accused of committing several criminal offenses qualified by one or more articles of the criminal law, the court must formulate a conclusion in the descriptive and motivational part with reasons stating that the charges are unfounded for each article or episode of the charge, indicating the appropriate justification.

     In the case of an acquittal verdict against several persons, the court must, in the descriptive and motivational part, substantiate the conclusion of acquittal, indicating the grounds for each, with an analysis of the evidence.

When passing an acquittal, depending on the grounds for acquittal, the court decides on a civil claim with reasons.:

     refuses to satisfy a civil claim if there is no event of a criminal offense or if the defendant has not been proven to have committed it.;

     leaves a civil claim without consideration if the defendant's actions do not constitute a criminal offense.

Explain to the courts that the acts specified in part four of Article 10, part four of Article 19, article 23, and parts of the first articles are not a criminal offense and cannot entail criminal liability. 26, 32, 33, 34, 35, 36, 37, 38, in the notes to articles 253 (paragraph 2), 366, 367 (item 1), 375, 376, 378, 421, 432, 434 of the Criminal Code, as well as acts committed by persons specified in the first part of Article 16 of the Criminal Code or who have not reached the age from which criminal liability begins in accordance with Article 15 of the Criminal Code.

     If these circumstances are found to eliminate criminal liability, the court decides an acquittal for the absence of elements of a criminal offense in the act, with the exception of the cases provided for in the second part of Article 391 of the CPC.

The issues resolved in the operative part of the acquittal are set out in the sequence provided for in articles 400 and 401 of the CPC.

     Setting out the operative part of the acquittal, the court, after the word "sentenced", indicates the surname, first name, patronymic of the defendant, the criminal law (article, part, paragraph) under which he was prosecuted, the decision to declare him innocent and acquit him, indicating the grounds.

     When an acquittal is issued against a person who was accused of committing several criminal offenses qualified by one article of the criminal law (for example, several thefts or episodes of an ongoing criminal offense), when the grounds for acquittal are different, the operative part indicates on which of the grounds provided by the law and in which criminal offenses he is justified.

The operative part of the acquittal, in addition, must contain decisions: on recognizing as justified the right to compensation for damage caused by illegal actions of bodies conducting criminal proceedings, in accordance with article 39 of the CPC; on a civil claim; on the abolition of preventive measures, measures to ensure the confiscation of property, as well as measures to ensure compensation for damage, if such measures have been taken; on the fate of the physical evidence based on the third part of Article 118 of the CPC; on the distribution of procedural costs in accordance with the requirements of Article 178 of the CPC. If a civil claim is left without consideration, measures to ensure it are not canceled.

     When passing an acquittal for failure to prove the commission of a criminal offense, the court must indicate in the operative part its decision to refer the case to the prosecutor in order to take measures to identify the person who committed the criminal offense.

The verdict in cases considered with the participation of jurors is decided by the presiding judge in accordance with the procedure established by Chapter 68 of the CPC. At the same time, the content of the sentence must comply with the requirements of article 658 of the CPC.

Invalidate them:

      1) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated August 15, 2002 No. 19 "On the court verdict";

      2) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated March 9, 2006 No. 2 "On Amendments to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 19 dated August 15, 2002 "On the court verdict";

      3) regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2010 No. 17 "On Amendments and additions to the regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 19 dated August 15, 2002 "On the court verdict".

According to article 4 of the Constitution, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of its first official publication, with the exception of paragraph three of paragraph 4, which enters into force on September 1, 2018.

     Chairman of the Supreme Court of the Republic of Kazakhstan

J. Asanov

     Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of the plenary session

G. Almagambetova

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

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