Comment to article 323. Referral of the case by the court to the prosecutor The Criminal Procedure Code of the Republic of Kazakhstan

If significant violations of the criminal procedure legislation are established that prevent the appointment of the main trial, as well as their establishment in the main trial in cases of accelerated pre-trial proceedings or with a concluded procedural agreement, the court returns the case to the prosecutor for their elimination.

1. Unlike the previous criminal procedure legislation, the current Criminal procedure law does not provide for the institution of sending a criminal case by a court for additional investigation. At the same time, it is possible to refer the case to the prosecutor in appropriate cases in order to eliminate violations of the criminal procedure law. It should be borne in mind that not any violations of the criminal procedure law can serve as a basis for referring a case to a prosecutor, but only those that prevent the appointment of the main trial. Failure by the body to ensure incompleteness is not a reason for returning the case to the prosecutor.

The criminal case is returned by the court to the prosecutor, only in cases of violations that cannot be remedied by the court and must be eliminated by the prosecutor.

2. Significant violations of the criminal procedure law that prevent the appointment of the main trial are those violations that deprive the court of the opportunity to organize and prepare the appointment of the main trial, as well as determine its limits.

Significant violations of the criminal procedure law, which are the basis for returning the case to the prosecutor, are:

- the absence in the indictment of information about the surname, first name and patronymic of the accused;

- lack of information about the identity of each of the accused, the paragraph of the part and articles of the Criminal Code under which they were brought to criminal responsibility in the indictment or in the decision to bring them to trial;

- absence of a court order

- the inability to establish the limits of the charge from the substance of the charge

-there is no legal formulation of the charge containing the qualification of the act;

- the prosecutor did not agree with the indictment and the protocol of the accelerated pre-trial proceedings;

- the case materials are executed in a way that excludes the possibility of their full reading and others that cannot be eliminated by the court.

- the indictment has not been signed by the investigator or approved by the prosecutor

- if the court finds that the case is beyond the jurisdiction of the court due to the prosecutor's change of charges, the case must be returned to the prosecutor in order to resubmit the indictment and send it to the jurisdiction.

- the rules of investigation were violated; the pre-trial proceedings were conducted by an investigator, in respect of whom there were grounds for recusal.

If the proceedings are suspended due to the failure to establish the location of the accused, the case is also returned to the prosecutor for the organization of his search.

3. The drafting of a new indictment is not a basis for sending the case to the prosecutor. In such cases, the court takes measures to postpone the trial in order to ensure the right of the defense to review additional case materials, for which it provides up to seven days to prepare for the defense against a new charge.

4. The case may be returned to the prosecutor either at the request of the parties or on the court's own initiative. The motion may be filed by the defendant, his defense attorney and legal representative, the public prosecutor, the victim and his representative, the civil plaintiff and the civil defendant, and their representatives. The issue of referral of the case to the prosecutor may be resolved at a preliminary hearing when the main trial is scheduled. In cases of expedited pre-trial proceedings or with a concluded procedural agreement, the court, having established significant violations of the criminal procedure legislation in the main trial that prevent the appointment of the main trial, also returns the case to the prosecutor.

5. The return of the case to the prosecutor shall be formalized by a resolution indicating the basis for returning the case to the prosecutor. It should be borne in mind that when referring a case to the prosecutor, both based on the results of the preliminary hearing and from the main trial, it is unacceptable to prejudge questions about the evidence of the charge, evaluate the evidence and indicate the application of a specific criminal law. When returning the case to the prosecutor, it is necessary to resolve the issue of retaining, changing, canceling or extending the preventive measure against the accused.

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

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