Comment to article 324. Suspension of criminal proceedings The Criminal Procedure Code of the Republic of Kazakhstan

A decision to suspend proceedings in a case may be made by a judge on the grounds provided for in parts one, two, and three of Article 45 of this Code.

Proceedings may be suspended in respect of one of several defendants, provided that this does not infringe on his or other defendants' rights to defense. If the defendants, in respect of whom proceedings are not suspended, are in custody and the judge does not consider it possible to change the measure of restraint for them, suspension of proceedings is possible for a period not exceeding six months. If during this time the grounds for suspending proceedings against any of the defendants do not disappear, the proceedings against the other defendants must be resumed and a date set for the main trial.

In case of suspension of the proceedings on the grounds provided for in paragraph 1) In the first part of Article 45 of this Code, the case is returned to the prosecutor, with the exception of the cases specified in the second part of Article 335 of this Code.

1. The grounds for suspending and interrupting the terms of the judicial investigation are: the absence of the accused, whose whereabouts have not been established or his presence outside the Republic of Kazakhstan has been established, as well as cases when he absconded from the court, if the fact of hiding the accused from the court is obvious. If the accused absconded immediately after the end of the investigation, the court returns him to the prosecutor and instructs him to ensure the search for the accused. In this case, the court suspends the proceedings and selects or modifies the measure of restraint for the accused in the form of detention and sends the case to the prosecutor to organize his search.

2. A temporary mental disorder or other serious illness of the defendant, which must be confirmed by a medical report, is recognized as an obstacle to further proceedings in the case and requiring suspension. Objective circumstances caused by force majeure (force majeure), which are extraordinary and unavoidable, may also create obstacles to the proceedings. Such circumstances include: natural disasters - earthquakes, floods, fires, typhoons, sudden temperature fluctuations leading to death or late ripening of crops, etc.; other circumstances of public life - military operations, epidemics, national and sectoral strikes, prohibitive acts of government agencies (quarantine, restriction of transportation in certain directions, prohibition of trade operations with certain countries due to the application of international sanctions), etc.  Sending instructions, petitions for legal assistance and other procedural actions related to obtaining legal assistance require a long time, and therefore, these circumstances are also attributed by the legislator to the grounds for suspending proceedings.

3. Verification of the defendant's statements about violations of his rights in pre-trial proceedings in order to obtain evidence by forcing him to testify, not providing him with a defense lawyer, misleading him, using torture, not providing medical care, as well as appealing the defendant's decision of the prosecutor are circumstances that prevent the continuation of the main trial. In such cases, the proceedings on the case are suspended, and the prosecutor is given the time necessary to organize an audit and issue an appropriate conclusion based on the results.

4. A court's appeal with a submission to the Constitutional Council of the Republic of Kazakhstan or its acceptance of a submission from another court declaring unconstitutional a law or other normative legal act to be applied in this criminal case that infringes on human and civil rights and freedoms enshrined in the Constitution of the Republic of Kazakhstan is the basis for suspending proceedings in whole or in part until the decision of the Constitutional Council RK.

5. In cases of private prosecution, the procedural rules granting the victim the right to support the prosecution are of particular importance, since the initiator of the proceedings is the private prosecutor. Therefore, the legislator attributed the inability of a private prosecutor to support the prosecution in a private prosecution case related to his serious illness, absence from the Republic of Kazakhstan due to a business trip or fulfillment of a civic duty to one of the grounds for suspending the proceedings.

6. If several defendants are brought to trial in one criminal case and circumstances arise during the trial for suspending the criminal case against one or more defendants, the case materials against them must be separated into separate proceedings and it is suspended. Separation and suspension of proceedings against individual defendants is not allowed if these actions infringe on his rights or the rights of other defendants to defense. If a case in which the case against some defendants has been suspended and other defendants in the case are in custody, then the suspension of these cases is allowed for a period of no more than six months. For example, one of the defendants fell ill with a serious illness, which took a long time to treat. Since the grounds for suspension have not disappeared within this period, the proceedings against the other defendants must be resumed and a date set for the main trial.

If the proceedings are suspended due to the failure to establish the location of the accused, the case is returned to the prosecutor. The function of carrying out the search is not inherent in the court, which is carried out by the prosecuting authority.

8. The decision to suspend proceedings by the court is taken at a preliminary hearing and at any stage of the main trial before sentencing.

The suspension of the proceedings is a temporary measure. If the circumstances that served as the basis for the suspension disappear, the proceedings are resumed by a court order. The term of consideration of the case in court for the period of suspension is interrupted. Upon expiration of the limitation period for criminal liability, the suspended case is subject to termination.

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

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