Article 108. Complaints and Prosecutor’s Applications Against Court Judgments and Rulings. Commentary on the Article of the Criminal Procedure Code of the Republic of Kazakhstan
Complaints and applications by prosecutors against judgments and rulings of courts of first instance shall be filed in accordance with the rules of Chapter 48 of this Code. Complaints, protests, and applications for the review of judicial decisions that have entered into legal force shall be filed in accordance with the rules established by Chapter 52 of this Code.
Note. Article 108 is set out in the wording of Law of the Republic of Kazakhstan dated July 11, 2017, No. 91-VI (shall enter into force upon the expiration of ten calendar days after the date of its first official publication); Note. Article 108 is set out in the wording of Law of the Republic of Kazakhstan dated July 11, 2017, No. 91-VI (shall enter into force upon the expiration of ten calendar days after the date of its first official publication).
The provisions of Article 108 of the Criminal Procedure Code establish the procedure for appealing court judgments and rulings, filing applications by prosecutors, and lodging protests against court judgments and rulings, thereby giving a completed form to the provisions of Chapter 13 of the Criminal Procedure Code. Thus, the entirety of the above-mentioned provisions forms the basis of the principle of freedom to appeal procedural actions and decisions of the bodies conducting criminal proceedings at any stage of the criminal process, with a prohibition on turning a complaint to the detriment of the person who filed it or in whose interests it was filed (Article 31 of the Criminal Procedure Code).
Chapter 48 of the Criminal Procedure Code, referred to in the provisions of Article 108 of the Criminal Procedure Code, regulates appeals and the review, upon applications by prosecutors, of judicial decisions that have not entered into legal force (this is “a court reviewing the case and a higher court reviewing the court”). Judgments and rulings of courts of first instance may be appealed by the prosecution and defence parties and reviewed upon an application by the prosecutor, within the scope of their legal capacity, under the appellate procedure (see also the commentary on subparagraphs 2, 4, 18 and 45 of Article 7 of the Criminal Procedure Code).
Chapter 52 of the Criminal Procedure Code, also referred to in Article 108 of the Criminal Procedure Code, regulates proceedings before the cassation instance (this is “a court above the court”), that is, proceedings for the review of judgments and rulings of courts of first instance and appellate courts that have entered into legal force (subparagraph 14 of Article 7 of the Criminal Procedure Code), upon applications, protests and submissions by participants in criminal proceedings, the scope of whom is specified in Parts 1–2 of Article 486 of the Criminal Procedure Code. A cassation application may also be filed by persons who are not parties to the case, against judicial acts insofar as they concern their rights and legitimate interests (Part 1 of Article 486 of the Criminal Procedure Code).
Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishевich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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