Comment to article 337. Participation of the Public Prosecutor in the main trial The Criminal Procedure Code of the Republic of Kazakhstan

Participation in the main trial of the prosecutor as a public prosecutor is mandatory, with the exception of private prosecution cases.

In complex and multi-episode cases, the State prosecution may be supported by several prosecutors.

If the prosecutor cannot continue to participate in the trial, he may be replaced. The entry of a new prosecutor into the case does not entail a repetition of the actions that had been committed in court by that time, but at the request of the prosecutor, the court may grant him time to familiarize himself with the case materials.

The prosecutor presents evidence and participates in their study, presents to the court his opinion on the merits of the charge, as well as on other issues arising during the trial, makes suggestions to the court on the application of criminal law and the imposition of punishment to the defendant.

The prosecutor submits or supports a civil claim filed in the case, if this is required by the protection of citizens' rights, state or public interests.

In supporting the prosecution, the prosecutor is guided by the requirements of the law and his inner conviction based on the results of consideration of all the circumstances of the case. The prosecutor can change the charge. The prosecutor is obliged to drop the charge (in whole or in part) if he comes to the conclusion that it has not been confirmed in court proceedings. The public prosecutor's refusal to charge is allowed during the judicial investigation or judicial debate.

In the case of a complete refusal by the prosecutor from the charge, if the victim also refused the charge, the court, by its decision, terminates the case. If the victim insists on the charge, the court continues the proceedings and resolves the case in a general manner. In this case, the prosecutor is exempt from further participation in the process, and the prosecution is supported by the victim personally or through a representative. At the request of the victim, the court must provide him with time to invite a representative. In case of partial refusal of the prosecutor and the private prosecutor from the charge, the court dismisses the case in that part of the charge that the prosecution refused, the case in the rest of the charge is considered in the general order. If the prosecutor has changed the charge and the victim does not insist on the previous charge, the court will consider the case on a new charge.

In the cases provided for by this Code, the prosecutor has the right to conclude a procedural agreement with the defendant. In the presence of the circumstances specified in the third part of Article 68 of the Criminal Code of the Republic of Kazakhstan, the prosecutor has the right to request the termination of the criminal case.

1. In criminal cases, the prosecution side, along with the victim, his legal representative, representative, is represented by the prosecutor, whose participation in the case is mandatory, with the exception of cases of private prosecution.

In complex, multi-episode cases in which the time limit for consideration exceeds that established by law, several prosecutors may participate.

2. If it is impossible for the prosecutor to continue participating in the trial, he may be replaced at any stage of the process. At the same time, the entry of a new prosecutor into the case does not entail a repeat of the judicial investigative actions, but at the request of the prosecutor, the court may provide him with reasonable time to familiarize himself with the case materials.

3. In accordance with the principle of adversarial nature of the parties, the prosecutor presents evidence, participates in their investigation, speaks on the merits of the charges, petitions filed and other issues during the judicial investigation. The prosecutor who supports the state prosecution expresses an opinion on the qualification of the defendant's actions, as the punishment is meted out.

The prosecutor has the right, in cases established by law, based on state and public interests, to file a civil claim, or to support an already filed one.

4. The prosecutor's position in the process, as a party to the public prosecution, should be active, based on an internal conviction as a result of an assessment of all the circumstances of the case. In this regard, the law establishes the prosecutor's right to change the charge and the obligation to dismiss the charge in whole or in part if it has not been confirmed. At the same time, the prosecutor has no right to change the charge in the direction that worsens the defendant's situation. The public prosecutor's refusal to charge is allowed both during the judicial investigation and during the judicial debate.

The refusal (partial refusal) is made in writing and attached to the case file.

5. If the prosecutor refuses to charge in full, if the victim also refused to charge, the court shall terminate the proceedings in the case by a decision. If the victim insists on the charge, the court continues to consider the case.  essentially, the verdict decides. In this case, the prosecutor is exempt from further participation in the process, the prosecution is supported by the victim, who can invite a representative. If the prosecutor or the private prosecutor partially refuses to charge, the court, by its decision, terminates the case in this part, and examines the rest according to the general rules. If the prosecutor changes the charge, if the victim does not object to this, the court will consider the case under the new charge.

6. The prosecutor has the right to conclude a procedural agreement. The actions of the court in the conciliation proceedings are regulated by Chapter 64 of this Code.

In accordance with part 3 of Article 68 of the Criminal Code, in cases where a criminal offense has caused harm to the legally protected interests of society and the state, the person specified in part one or two of this article may be released from criminal liability if he has sincerely repented and made amends for the harm caused to the legally protected interests of society or the state. In such circumstances, the prosecutor has the right to request that the case be dismissed.

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

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