Comment to article 321. Holding a preliminary hearing The Criminal Procedure Code of the Republic of Kazakhstan

It is mandatory to hold a preliminary hearing in cases of particularly serious crimes. In other cases, a preliminary hearing of the case is held if it is necessary to make a decision on the referral of the case by jurisdiction, referral of the case to the prosecutor, termination of the case, suspension of proceedings, connection and separation of criminal cases, as well as consideration of petitions of the parties.

The preliminary hearing of the case is conducted by the judge alone in a court session within ten days from the date of the decision on its holding. The parties shall be notified of the time and place of the preliminary hearing of the case. A protocol is kept during the preliminary hearing of the case.

The participation in the court session of the defendant accused of committing a particularly serious crime, his defense attorney and the public prosecutor is mandatory. In the absence of the defendant, who is accused of committing other criminal offenses, a preliminary hearing is held if he so requests. In case of failure of the defender for disrespectful reasons, as well as when his participation in the preliminary hearing is impossible, the judge takes measures to ensure the participation of the newly appointed defender in the court session. The failure of the victim and his representative, the civil plaintiff, the civil defendant or their representatives to attend the court session does not preclude the preliminary hearing of the case.

During the preliminary hearing, the judge finds out from the defendant who is accused of committing a crime for which the criminal law provides for the death penalty or life imprisonment, with the exception of cases of military crimes committed during wartime or combat situations, as well as crimes provided for in articles 99 (paragraph 15) of part two), 170 (part two The fourth), 175, 177, 178, 184, 255 ( part four), 263 (part five), 286 (part four), 297 (part four), 298 (part four), 299 (part four) of the Criminal Code of the Republic of Kazakhstan, on whether he has a motion to consider his case with the participation of jurors, and if such a motion is filed, whether he supports his motion.

The judge issues a ruling on the results of the preliminary hearing of the case, in which he sets out the decision on the issues considered. In the absence of grounds for referral of the case by jurisdiction, suspension of the proceedings, termination of the case, the court, in compliance with the requirements of Article 322 of this Code, shall decide on the appointment of the main trial.

If the prosecutor changes the charge during the preliminary hearing, he submits the new wording to the court in writing and the judge reflects this in the ruling. If the prosecutor's change of charge results in a change of jurisdiction, the judge returns the case to the prosecutor to resubmit the indictment and refer the case to the jurisdiction.

1. The preliminary hearing is one of the procedural forms of preparation for the trial, which is inherent in the proceedings before the court of first instance.

The task of the preliminary hearing is to remove obstacles to the consideration of the criminal case on its merits and determine the form of the upcoming trial, preventing the appointment of a trial in those cases that are not properly prepared, which later leads to their disruption and delay.

Article 321 of the CPC clearly defines the cases in which a preliminary hearing is mandatory.

A mandatory procedure for holding a preliminary hearing has been established in cases of defendants who have committed a particularly serious crime, as well as to resolve the issue of considering a case by a court with the participation of jurors.

Cases involving crimes for which the death penalty or life imprisonment is provided for by criminal law are considered with the participation of jurors, with the exception of cases of crimes provided for in articles 99 (paragraph 15) of part two), 170 (part four), 175, 177, 178, 184, 253 ( part four), 261 (part five), 284 (part four), 295 (part four), 296 (part four), 297 (part four) of the Criminal Code of the Republic of Kazakhstan, as well as on military crimes committed during wartime or in a combat situation.

In such categories of cases, at a preliminary hearing in a court session, the defendant's rights are explained, including to a trial by jury, if such a petition is brought by him during the pre-trial proceedings, his opinion on the support of the petition, the voluntary nature of his will is clarified.

In cases involving several defendants, if at least one of the accused files a motion to consider a criminal case with the participation of jurors, the objections of the other accused against this procedure will not be accepted.

In cases conducted in accordance with the general procedure, the legislator has granted the court the right to determine the grounds for holding a preliminary hearing. The court, at the request of a party or on its own initiative, conducts a preliminary hearing if there is a need to resolve issues.:

on jurisdiction;

on the return of the criminal case to the prosecutor;

on suspension or termination of a criminal case;

on the connection and separation of criminal cases;

5) on the consideration of the petitions of the parties;

2. The preliminary hearing of the case shall be conducted solely by the judge within ten days from the date of the decision on the appointment of the preliminary hearing, with notification of the parties through available means of communication. The parties must be notified at least 3 days in advance of the place, date and time of the preliminary hearing.

3. In the commented article, the legislator indicated that the participation of the defendant, his defense attorney, and the state prosecutor in cases of a particularly serious crime is mandatory. Without the accused, a preliminary hearing is allowed when considering cases of crimes classified as minor, medium and serious categories, if the defendant has filed a motion to hold a preliminary hearing without his participation.  

The preliminary hearing is conducted in a court session based on the principle of competition and equality of the parties.  Therefore, the court session is held with the participation of the prosecution and the defense. The judge is responsible for ensuring the participation of the defender, in case of his non-appearance for disrespectful reasons and in cases where his participation is impossible for various reasons (due to a serious illness, being outside the country). The non-appearance of the victim, his representative, the civil plaintiff, the civil defendant and their representatives does not affect the conduct of the preliminary hearing. Their participation is optional.

4. At the preliminary hearing, the court clarifies the prosecutor's position on maintaining, changing or rejecting the charges. If the wording is changed or the charge is dropped, the prosecutor must submit it to the court in writing.

5. Based on the results of the consideration of the preliminary hearing, the judge issues a resolution on the decision taken: on the direction of the case by jurisdiction, suspension, termination, connection, separation. In addition, the court has the right to return the case to the prosecutor if it finds significant violations of the criminal procedure legislation.   If petitions have been filed by the parties, including on these issues, then the decision to grant or refuse to grant the petition should be reflected in the resolution. The decision should also indicate the scope of the charge supported by the prosecutor. If he changes the wording, the court must state the new wording of the charge in the decision. If the case is found to be beyond the jurisdiction of the court due to the prosecutor's change of charge, the case must be returned to the prosecutor for resubmission of the indictment and referral according to jurisdiction.

In the absence of grounds preventing the appointment of the main trial, the court, based on the results of the preliminary hearing, issues an appropriate procedural decision.

6. During the preliminary hearing, the minutes of the court session shall be kept by the secretary. The protocol is made by handwriting or using technical means, the materials of recording the court session are attached to the protocol of the court session for its further storage. In cases where these scientific and technical means are used, a brief part of the protocol is drawn up in writing, indicating the composition of the court and recording the entire trial on technical media. The parties have the right to review the protocol and make their comments, which must be considered by the court. At the request of the parties, the court is obliged to submit the protocol in the form of an electronic document certified by the electronic digital signature of the presiding judge and the secretary of the court session.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases