Comment to article 327. Termination of a criminal case The Criminal Procedure Code of the Republic of Kazakhstan

During the preliminary hearing or in the main court proceedings, the judge shall order the termination of the case on the grounds specified in the first part of Article 35 and the first part of Article 36 of this Code, as well as in the main court proceedings in the event that the public prosecutor refuses to charge. Having decided to terminate the case, the judge cancels the measure of restraint, measures to ensure a civil claim and confiscation of property and resolves the issue of material evidence. A copy of the judge's decision to dismiss the case is sent to the prosecutor, as well as handed to the person who was prosecuted and the victim.

1. The court, having established the circumstances precluding the proceedings in the case, shall terminate the case.

The absence of a crime event as the basis for making the specified decision occurs when the absence or commission of the act itself has not been established, in connection with which the crime was reported.  It is applied only when there was no criminally punishable act. For example, the court established the fact of a deliberately false report of a crime.  

A criminal case is terminated if the defendant's guilt is not proven, when, by the measures taken by the prosecuting authority, the collected evidence of guilt in the commission of a crime by the defendant is insufficient, and all possibilities have been exhausted for collecting other evidence.

In the absence of corpus delicti, a criminal case is terminated in the absence of all or some of the signs of any specific corpus delicti provided for in articles of the General and Special Parts of the Criminal Code, also when the defendant's actions were lawful, precluding criminality of the act (extreme necessity, causing harm during the arrest of the person who committed the crime), or do not pose a public danger. because of its insignificance.

The court must establish all the elements of the corpus delicti. In particular, in cases where a crime is committed by a person who has not reached the age from which criminal responsibility has been established, or by a minor who, due to mental retardation unrelated to a mental disorder, is not fully aware of the actual nature and social danger, the grounds for termination are the absence of corpus delicti.

2. Upon termination of the case by the court as a result of an act of amnesty, if it eliminates the application of punishment for committed acts, after the expiration of the statute of limitations for criminal prosecution, in respect of the deceased, except in cases where the proceedings are necessary for the rehabilitation of the deceased or the investigation of the case against other persons, as well as the establishment of property obtained illegally., funds and other valuables subject to confiscation, providing compensation for the damage caused, the court finds out the opinion of the defendant or his legal representative on consent or objection to the termination of the case on the specified grounds. If the defendant or his legal representative objects to the termination of the case, the court, continuing the trial, completes the proceedings by issuing a guilty verdict with the release of the person from punishment or criminal liability.

3. Before the termination of the criminal case, the defendant must be informed of the grounds for termination of the case, its legal consequences and the right to object to its termination on the appropriate grounds.

4. The consent of the victim when making a decision to terminate the case is required in the cases provided for in Article 36 of the CPC. Without the consent of the victim, the case may also be terminated in respect of a person who has committed an act prohibited by criminal law in a state of insanity, except in cases where the proceedings are necessary to apply a compulsory medical measure to him or her and in connection with a refusal to consent by an authorized body or official to bring a person with privileges or immunity to criminal responsibility. from criminal prosecution.

In the cases provided for by part one of Article 65, Articles 66, 67, parts two, three of Article 68, part one of Article 69, parts one, three of Article 83, as well as the notes of Articles 439, 440, 442-446, 451 of the Criminal Code, the court has the right, at the request of the parties or on its own initiative, to terminate the proceedings on only with the consent of both the defendant and the victim.

If the defendant or the victim objects to the termination of the case, the court continues the trial and decides on a guilty verdict with exemption from criminal liability.

4. In cases of a private and private-public nature, criminal cases begin only with a complaint from the victim. Therefore, the withdrawal of the complaint by the private prosecutor or the victim, the conclusion of reconciliation with the defendant entails the termination of the case. Criminal offenses provided for in articles 108, 109, 110 (part one), 114 (parts one and two) are classified as private prosecution cases.), 123, 130, 131, 147 ( parts one and two), 149 (part one), 150 (part one), 198 (part one), 199 (part one), 319 (part one), 152 of the Criminal Code of the Republic of Kazakhstan (with the exception of part three). Criminal offenses provided for in art. 115, 120 (part one), 121 (part one), 126 (part one), 138, 139, 145, 148 ( part one), 153 (part one), 154, 155 (part one), 157 (part one), 158 (part one), 159, 187, 189 (parts one and two), 190 (part one), 195 (part one), 198 (part two), 199 (part two), 201 (part one), 202 (part one), 204, 205 (part one), 206 (part one), 207 (part one), 208 (Part one), 209 (part one), 211 (part one), 219 (part one), 223, 246 (part one), 248, 249 (part one), 317 (parts one and two), 319 (part two), 343 (part one), 387 (parts one) and 152 (part one), if it is related to the failure to comply with a court decision on reinstatement.

5. In the listed categories of cases, proceedings may be initiated and continued without a complaint from the private prosecutor and the victim, if the criminal offense affects the interests of a person who is helpless or dependent, or for other reasons unable to independently exercise his rights, or in a case of private-public prosecution affecting the interests of society or the state.

6. The entry into force of a law abolishing criminal liability, cases of recognition by the Constitutional Council of the Republic of Kazakhstan as unconstitutional of a law or other normative legal act to be applied in this criminal case, on which the qualification of the act as a criminal offense depends, are grounds excluding criminal prosecution, which requires the court to resolve the issue of termination of the criminal case.

7. The court is obliged to terminate the proceedings in the case, having established the existence of a court verdict that has entered into force against the defendant on the same charge or another unturned court decision that established the impossibility of criminal prosecution, also if during the pre-trial proceedings a decision was issued to terminate criminal prosecution on the same suspicion that at the time of the case in court was not it was canceled.

8. The refusal to partially or completely dismiss the charges against the public prosecutor entails the termination of the charges in the relevant part or in full, only if the victim or the private prosecutor agrees with the prosecutor's opinion. If the victim or the private prosecutor does not agree with the dismissal of the charge filed by the public prosecutor and supports the charge, the trial continues in the general order.

9. The prosecutor also has the right to recall the case from the court in order to terminate it before the start of consideration of the case in the main court proceedings. In such cases, a new pre-trial proceeding and its re-referral to court are not allowed.

If there are signs of an administrative or disciplinary (corruption) offense in the actions of the person against whom the case has been terminated, the court must send a resolution and materials to the authorized bodies (officials) within ten days to resolve the issue of bringing them to appropriate responsibility.

10. In the resolution on the termination of a criminal case or criminal prosecution:

1) the grounds for termination of the criminal case and (or) criminal prosecution are indicated;

2) the issues of lifting the preventive measure, as well as the seizure of property, correspondence, temporary suspension from office, monitoring and recording of negotiations, measures to secure a civil claim and confiscation of property are being resolved.;

3) the issue of physical evidence is resolved.

A copy of the decision to terminate the criminal case is sent to the prosecutor, as well as handed to the person against whom the criminal prosecution has been terminated and to the victim.

The decision taken by the court to terminate the case may be appealed and appealed to a higher court.

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