Comment to article 326. Direction of the criminal case by jurisdiction The Criminal Procedure Code of the Republic of Kazakhstan

If the judge determines that he has no jurisdiction over the case, he issues a resolution on the referral of the case to the jurisdiction, stating the legal grounds for such a decision and indicating the court to which the case is being sent, which he notifies the participants in the process.

1. After the case is received, the court, while carrying out preparatory actions, is obliged to establish the powers of this court to consider the received case. The question of the jurisdiction of the case is decided by the judge alone. If, prior to the appointment of the main trial, it is established that the criminal case that has been received is not within the jurisdiction of this court, the judge appoints a preliminary hearing. When resolving a set of issues related to the appointment of such a meeting, in all cases, without exception, the judge is obliged to make a decision on the referral of the criminal case to the jurisdiction, i.e. to the appropriate judicial authority.

2. If the jurisdiction of the case is established in the main court proceedings, the court has the right to leave the case in its proceedings, subject to the consent of all participants in the process.

3. The jurisdiction of cases is determined according to the general rule at the place of commission of the crime. However, cases that are subject to review by specialized juvenile courts or the military criminal court or the military court of the garrison are in any case referred to them by jurisdiction.

In multi-episode cases, when several cases of crimes committed in different territories are combined into one proceeding, or in cases of crimes initiated in the jurisdiction of one court and completed in the jurisdiction of another court, committed outside the Republic of Kazakhstan, jurisdiction is determined at the place of completion of the investigation. The legislator revealed the concept of "the place of the end of the investigation." The place of termination of the investigation is determined by the place where the indictment is drawn up or the decision is made to send the case to court for the application of compulsory medical measures.

The subject matter jurisdiction of a criminal case may change as a result of a prosecutor changing the charge before the trial begins. Such a change is considered at a preliminary hearing of the criminal case, which also entails a decision by the judge to refer the criminal case to the jurisdiction. If the charge is changed by the public prosecutor in the main trial, which entails a change in jurisdiction, the court, with the consent of the defendant, having listened to the opinion of the participants in the process, has the right to leave the criminal case in its proceedings and continue the trial in a general manner.

At the request of a party or on the initiative of a judge or the chairman of the court, a criminal case may be transferred for consideration within the framework of the activities of courts of one level to another court, in the following cases::

a) when there are circumstances that prevent all judges of the given court from participating in the consideration of the case; for example, all judges of the given court have previously participated in the proceedings on the criminal case under consideration, which is the basis for their recusal.

b) transfer to another court is associated with a real threat to the personal safety of the participants in the trial, which must be confirmed by appropriate documents.

c) to ensure a comprehensive and objective consideration of the case in cases where the majority of participants in criminal proceedings in this criminal case do not reside in the territory under the jurisdiction of this court, the accused is not in the area of the court to which the case was sent by the prosecutor under jurisdiction, the majority of victims and witnesses reside in a place other than that, where the court is located, but near the area of operation of the court of the same name.

4. A change in the territorial jurisdiction of a criminal case is allowed only with the consent of the participants in the process, which must be recorded in the minutes of the court session, and individual written petitions are attached to the materials of the criminal case. A change in the territorial jurisdiction of a criminal case within the limits of the activity of courts of the same level is allowed only before the start of the trial and is resolved by a higher court, on which a decision is issued.

A lower-level court may not have jurisdiction over the consideration of criminal cases of defendants, according to the requirements of a higher-level court.  The transfer of the case to another court is allowed only before the opening of the trial.         It should be noted that no one can change the jurisdiction provided for by law without his consent.

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

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