Comment to article 322. Appointment of the main trial The Criminal Procedure Code of the Republic of Kazakhstan

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The judge appoints the main trial in accordance with part five of Article 321 of this Code or without holding a preliminary hearing of the case, having concluded that during the pre-trial proceedings all the requirements of this Code for ensuring the rights of participants in the process have been met and there are no other circumstances preventing the case from being considered in court.

The decision on the appointment of the main trial must contain:

1) the indication of the person who is the defendant;

2) the exact indication of the criminal law under which he is being tried;

3) a decision on maintaining, canceling, changing or electing a preventive measure and measures to secure a civil claim and possible confiscation;

4) decisions on challenges, petitions and other statements of the participants in the process;

5) a decision on the admission of a person chosen by the accused as a defender, or the appointment of a defender for the latter;

6) the list of persons to be summoned to the main court session. Persons whose testimony was deposited during the pre-trial investigation are not called to the court session.;

7) the decision to hear the case in the absence of the defendant in the case when the law allows for the consideration of his case in absentia.;

8) information about the place and time of the main trial;

9) a decision on the consideration of a case in a general or abbreviated manner, in open or closed court session in the cases provided for by this Code.;

10) the decision on the language of the proceedings;

11) the decision on the substitute judge.

If a preliminary hearing was held in the case, the decision on the appointment of the main court session should reflect the decisions on the issues that were put up for discussion.

The main trial must begin no earlier than three days after the parties are notified of the place and time of the start of the court session, and no later than ten days in the case of a shortened hearing and fifteen days in the case of a general hearing from the date of the decision on its appointment. In exceptional cases, this period may be extended by a judge's decision, but not more than thirty days.

The main trial must be completed within a reasonable time. In the case of shortened proceedings, the main trial must be completed within the time limits established by the second part of Article 382 of this Code.

1. The main trial is the main and important stage of the criminal process, where criminal cases are considered and resolved on their merits. The main trial is scheduled in the absence of circumstances in the case file that make it impossible for the court to organize and prepare the trial. The main trial may be scheduled without a preliminary hearing. A preliminary hearing precedes the main trial and is scheduled in cases provided for in Article 321 of the CPC.

2. The participants in the trial shall be notified of the appointment of the main trial. The deadline for the start of the main trial is set no earlier than three days, during which the participants in the trial resolve issues related to court attendance (plan their working day taking into account the need to appear in court, leave another area by the appointed time of the court session, etc.).

3. In order to avoid cases of delay in the process, the deadline for the appointment of the main trial is set at fifteen days under the general procedure and ten days under the reduced procedure. The time limit is calculated not from the moment the decision is made, but from the moment the parties are notified of the court session, indicating the place and time of the meeting. This period may be extended by a judge's order for up to thirty days. However, this requires exceptional circumstances. In the judge's decision to extend the time limit, the decision must be motivated by specific circumstances, a list of grounds classified by the court as exceptional. An extension of the time limit for the appointment of the main trial to thirty days may take place in preparation for the consideration of multi-episode cases against members of an organized group, criminal community, transnational organized group or community, gangs that require more time to study and carry out preparatory actions.

The total time limit for consideration of the case in the main court proceedings has not been established and is determined within a reasonable time. Reasonable time limits should be understood as the time required to ensure a comprehensive, complete, objective investigation of the case based on the complexity, volume, number of defendants, evidence base and other circumstances necessary for the court to make a lawful and reasonable procedural decision.

With reduced production, this period is ten days. The establishment of this time limit is due to the fact that in a shortened procedure, the evidence collected, the legal assessment, and the issues of a civil claim are not disputed, therefore, at a court hearing, the judicial investigation is limited to questioning the defendant and the victim, clarifying by the court the circumstances of concluding a procedural agreement or an agreement to achieve reconciliation through mediation, questions about the timing and procedure for compensation for damages in a civil claim and the amount of procedural costs, which does not require a long time.

The time limit for consideration of a case under a shortened procedure may be extended up to twenty days only in exceptional cases, on which an appropriate resolution is issued justifying the exclusivity of the circumstances.

4. Article 322 of the CPC clarifies the requirements for the decision on the appointment of the main trial.

The resolution consists of an introductory, descriptive, motivational and resolute parts.

The introductory part indicates the time and place of drawing up the document, the surname of the judge considering the case, the surnames, first names and patronymics of each accused and the qualifications of the crime imputed to them.

In the descriptive and motivational part of the ruling, the judge sets out the data from the case file on the measure of restraint, the measure of securing a civil claim and confiscation of property, the grounds for electing, changing, and canceling these procedural measures, considers the filed challenges and other petitions of the participants in the process, and also decides on the participation of a defender, whether a defender will be admitted by agreement, or the appointed defender, as well as the representation of the interests of the defendant as a defender by the spouse or a close relative, guardian, the trustee or a representative of the organization in whose care or dependent the defendant is located, indicates the summons for questioning in the judicial investigation based on the relevant list, with the exception of persons whose testimony was deposited, about the defendant's participation in the trial or the conduct without his participation, the form of the trial: the general or abbreviated order of the case to be considered, choose the language of the proceedings, if necessary, appoint an interpreter, decide on the participation of a substitute judge.

5. As a general rule, the main trial takes place with the mandatory participation of the defendant. Without the participation of the defendant, judicial proceedings are allowed by law only in certain cases.:

1) in relation to defendants who have been tried for committing criminal offenses that do not pose a public danger: a criminal offense or a crime of minor and moderate gravity, when the defendant submits a motion to consider the case without his participation;

2) the defendant's location outside the Republic of Kazakhstan, which the court needs to obtain documentary evidence of.;

3) refusal of the defendant in custody to participate in the court hearing, confirmed by written documents.

6. In connection with the resolution of the issue of the defender's participation in the decision of the main trial, there is no need for the court to issue a separate decision on the appointment of a defender and summoning him to the court session.

When appointing long-term criminal cases for consideration in the main trial, the court should discuss the issue of the participation of a substitute judge.

The law allows the presence of a substitute judge from the beginning of the opening of the court session and from the moment the court decides on his participation. The substitute judge must be present at the court session from the beginning of the trial. This allows him to continue the trial in the event of the departure of the main judge. When announcing the composition of the court, the chairman announces the name of the reserve judge, and issues related to his recusal are resolved.

The substitute judge is in the courtroom together with the presiding judge, who directs the court session. The substitute judge must be familiar with the case file. If circumstances arise as a result of which the presiding judge has retired, the substitute judge continues the trial and concludes with a decision. In this case, the trial ends with a new court.

If necessary, the substitute judge, guided by the goals of a fair trial of the criminal case, has the right to resume any judicial actions. The introduction of a substitute judge into the criminal process was caused by the circumstances when a judge who had been considering a criminal case for a long time, having completed a significant amount of procedural actions, was subsequently unable to continue further consideration of the case due to the circumstances that arose. The institution of a substitute judge will resolve the issue of further unjustified delays in the consideration of such cases.

7. In the operative part, the court is obliged to make a decision on the listed issues, indicating the place and time of the main trial. It is not necessary to provide in the operative part of the resolution a complete list of persons to be summoned to the main court session, a reference to the specified list, which may be attached to the resolution, is sufficient.

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

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