Article 494. The procedure for considering the case in the cassation instance, the decisions of the court of cassation of the CPC RK Criminal Procedure Code of the Republic of Kazakhstan

Home / Codes / Article 494. The procedure for considering the case in the cassation instance, the decisions of the court of cassation of the CPC RK Criminal Procedure Code of the Republic of Kazakhstan

1. The court session of the cassation instance is opened by the announcement of the presiding judge about which court decision and on whose cassation appeal, submission, protest is being reviewed, who is part of the court and which of the participants in the process is present in the courtroom. The absence of the person who filed the cassation appeal, duly notified of the time and place of the case, does not exclude the possibility of continuing the court session. The participation of the prosecutor in the court session of the cassation instance is mandatory, with the exception of cases of private prosecution. The case may be considered without the participation of duly notified parties in the event of their failure to appear or receipt of a corresponding statement from them. In the cases provided for in Article 495 of this Code, the participation of a defender is mandatory.

2. After the resolution of the stated challenges and the cassation appeal, the court decides whether to continue the hearing or to postpone it. When the court decides to continue the hearing of the case, the presiding judge gives the floor to the participant in the process who filed the cassation appeal, protest. If there are several such participants, they will inform the court of their proposed order of performances. If they do not reach an agreement, the order of the speeches is determined by the court.

3. The person who filed the cassation appeal, protest, sets out the motives and arguments by virtue of which, in his opinion, the appealed decision is illegal, unfounded, unfair. Then the chairman gives the floor to other participants in the process.

4. If the cassation appeal is filed by the defense, the participants in the process representing it will be the first to speak. The order in which they act is determined either in accordance with the agreement they have reached, or in the absence of such a court decision.

5. The prosecutor participating in the court of cassation instance expresses an opinion on the cassation complaints under consideration, sets out the arguments indicated in the protest, and gives an opinion on the legality of the judicial acts that took place in the case.

6. If a cassation complaint or protest is filed by the prosecution, its representatives speak first, after which the chairman gives the floor to other participants in the process.

The motives and arguments set out in the protest may be stated by the relevant prosecutor at a court hearing on his instructions.

7. As a result of the consideration of the case in the cassation procedure, the court in compliance with the requirements Article 389 of this Code in the conference room makes one of the following decisions:

1) leaves the verdict, the decision of the court of first instance, the court of appeal, the decision of the court of cassation unchanged, and the cassation appeal, submission, protest for their revision without satisfaction;

2) changes the verdict, the decision of the court of first instance, the appellate instance, the decision of the cassation instance;

3) repeals the verdict and all subsequent rulings and dismisses the case.;

4) repeals the verdict and all subsequent rulings and directs the case for a new judicial review to the court of appeal or the court of first instance, if the case was considered in the court of first instance with the participation of jurors, as well as in the case of violations of the rules of procedural law provided for in paragraphs 2), 5) and 9) of the third part of Article 436 of this Code;

5) repeals the decisions rendered on appeal and cassation, changing the verdict of the court or leaving it unchanged.

A decision to send a case for a new judicial review cannot be revoked if judicial proceedings have been initiated in a case accepted by the relevant court.

8. Excluded by the Law of the Republic of Kazakhstan dated 31.10.2015 No. 378-V (effective from 01.01.2016).

9. The grounds for the cancellation or amendment of the sentence are the circumstances specified in Article 433 of this Code.

10. Judicial acts of the courts of the first, appellate and cassation instances are subject to cancellation or amendment if it is recognized that they made an illegal and unjustified decision by the court of first instance, or unlawfully and unreasonably canceled or amended previous decisions or sentences in the case by a higher court, or if significant violations of the law were committed during the consideration of the case by a higher court, which affected or they could have influenced the correctness of the decision.

11. If the unlawful termination of the case or commutation of the sentence to the convicted person was allowed during the consideration of the case in the appellate or cassation instances, the Supreme Court has the right to cancel the appeal or cassation decisions and leave in force, with or without modification, the verdict of the court of first instance.

12. The court of cassation instance has the right to amend judicial acts and:

1) apply the law on a less serious criminal offense and impose punishment in accordance with the modified qualifications;

2) to mitigate the punishment imposed by the court;

3) apply the law on a more serious criminal offense, impose a more severe punishment, or apply additional punishment if there are grounds to satisfy the complaint of the prosecution or the prosecutor's protest within the limits of the charge on which the convicted person was tried.;

4) change the type of institution of the penal system;

5) to recognize the existence of a corresponding recidivism of crimes, if it was not done or was done incorrectly by the court of first instance;

6) to cancel, in accordance with part five of Article 64 of the Criminal Code of the Republic of Kazakhstan, the suspended sentence under the previous sentence or to cancel, in accordance with part five of Article 69 of the Criminal Code of the Republic of Kazakhstan, the exemption from criminal liability under the previous sentence and, in this regard, to impose punishment according to the rules of Article 60 of the Criminal Code of the Republic of Kazakhstan, if this has not been done by the court of first instance;

7) in the cases provided for in paragraphs 2) and 3) of the seventh part of Article 72 of the Criminal Code of the Republic of Kazakhstan, to cancel parole and impose punishment according to the rules of Article 60 of the Criminal Code of the Republic of Kazakhstan.;

8) amend the verdict regarding the civil claim, as well as on the recovery of procedural costs, decisions on material evidence;

9) apply compulsory medical measures in accordance with Article 98 of the Criminal Code of the Republic of Kazakhstan.

The court, at the request of the parties or on its own initiative, resolves the issue of maintaining, electing, canceling or changing the preventive measure against the defendant or convicted person, as indicated in the resolution.

Upon termination of a criminal case or the imposition of a non-custodial sentence, the convicted person in custody is subject to immediate release from custody. The court shall immediately send to the institution or body executing the punishment a copy of the court's decision and a telegraphic notification of the decision to bring it to the attention of the convicted person and its execution.

13. In cases where the case is sent for a new hearing, the court has no right: to prejudge questions and conclusions that may be drawn by the court during a new hearing of the case, to prejudge questions about the evidence or lack of evidence of the charge, about the reliability or unreliability of this or that evidence and the advantages of some evidence over others, the application of a court of first instance of a particular criminal the law and the measure of punishment, as well as prejudge the conclusions that may be drawn by the court.

14. The court considering the case verifies the legality, validity and fairness of the court's verdict in full and has the right to amend it on grounds not specified in the submission, protest or cassation appeal, if this does not worsen the situation of the convicted person.

Amendments to a judicial act in respect of other convicted persons in respect of whom a submission, protest or cassation appeal has not been filed are allowed only for criminal offenses committed in complicity with the convicted person in respect of whom the submission, protest or cassation appeal has been filed, provided that their situation does not worsen.

The court has the right to take a decision on the deterioration of the situation only in respect of those convicted (acquitted) and on the grounds indicated in the prosecutor's submission, protest or cassation complaint of the victim. The court has no right to worsen the situation of the convicted person based on his cassation appeal or the cassation appeal of his defender or representative.

The court has no right to establish or consider proven facts that were not the subject of judicial proceedings.

15. Based on the results of consideration of the submission of the chairman of the regional court, submitted in the case provided for in part three of Article 446 of this Code, the cassation instance cancels one of the decisions of the appeals board with the retention of the other decision, or cancels both decisions and sends the case for a new appeal hearing.

16. Excluded by the Law of the Republic of Kazakhstan dated December 27, 2021 No. 88-VII (effective from 07/01/2022). 17. Excluded by the Law of the Republic of Kazakhstan dated December 27, 2021 No. 88-VII (effective from 07/01/2022). 18. Excluded by the Law of the Republic of Kazakhstan dated December 27, 2021 No. 88-VII (effective from 07/01/2022).

19. Based on the results of the review, the cassation instance shall adopt one of the decisions specified in part seven of this article in the form of a resolution. The resolution must comply with the requirements provided for in Article 496 of this Code.

20. The consideration of a case after the annulment of a verdict, a court decision and an appeal or protest against judicial acts rendered during a new trial of the case shall be carried out in accordance with Articles 497 and 498 of this Code.

21. Consideration of the case in the cassation instance in case of cancellation by the Supreme Court of the Republic of Kazakhstan of the decision of the cassation instance with the referral of the case for a new judicial review to the court of cassation instance is carried out according to the rules of this chapter.

President

Republic of Kazakhstan

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