Comment to article 390. Issues resolved by the court when passing a verdict of the Criminal Procedure Code of the Republic of Kazakhstan

When passing sentence, the court resolves the following issues in the conference room:

1) has it been proven that the act of which the defendant is accused took place;

2) is this act a criminal offense, and what kind of criminal law does it provide for (article, part, paragraph);

3) has the defendant been proven to have committed this act;

4) is the defendant guilty of committing this criminal offense;

5) are there any circumstances mitigating or aggravating his responsibility and punishment;

6) is the defendant subject to punishment for the criminal offense committed by him;

7) what punishment should be imposed on the defendant;

8) are there grounds for passing a sentence without imposing punishment or release from punishment, or for postponing the serving of a criminal sentence in cases provided for in articles 74 and 76 of the Criminal Code of the Republic of Kazakhstan;

9) in an institution of the penal enforcement system, what type and regime should a person sentenced to imprisonment serve his sentence?;

10) is the civil claim subject to satisfaction, in whose favor and in what amount;

11) how to deal with the seized property in order to secure a civil claim or possible confiscation;

12) how to deal with physical evidence;

13) to whom, and to what extent, should the procedural costs be imposed;

14) should the court deprive (submit a submission to the President of the Republic of Kazakhstan on deprivation) the defendant of an honorary, military, special or other rank, class rank, diplomatic rank, qualification class, state awards;

15) on the application of compulsory medical measures in cases stipulated by Article 91 of the Criminal Code of the Republic of Kazakhstan;

16) on the existence of circumstances contributing to the commission of a criminal offense;

17) on the measure of restraint in relation to the defendant;

18) on the cancellation or retention of a suspended sentence under a previous sentence.

19) on the cancellation of exemption from criminal liability with the establishment of surety for a previous sentence (as amended ZRK dated 07.11.2014).

When passing an acquittal, the court decides on the issue of compensation for the damage caused to the acquitted person by illegal actions of the investigating authorities, the prosecutor's office, and the court.

When accusing a defendant of committing several criminal offenses, the court decides on the issues specified in paragraphs 1) – 7) of the first part of this article for each criminal offense separately.

If several defendants are accused of committing a criminal offense, the court resolves all the issues specified in part one of this article with respect to each defendant individually, determining the role and degree of his participation in the committed act.

Having resolved the main issues listed in the first part of this article, the court proceeds to resolve the following additional issues:

1) about the placement of minor children of a convicted person who have been left without parents, and, if necessary, of the victim;

2) on the protection of the convicted person's property, and, if necessary, the property of the victim;

3) the need for a private ruling.

4) on the fate of the subject of the pledge in the event of cancellation of exemption from criminal liability with the establishment of a surety under the previous sentence (as amended ZRK dated 07.11.2014).

The court is obliged to postpone the decision of the verdict if the Constitutional Council of the Republic of Kazakhstan, on the initiative of another court, has accepted a motion declaring a law or other normative legal act to be applied in this criminal case unconstitutional.

All the questions in this article are presented in a logical sequence – each subsequent answer to the question follows from the previous answer. If, on the first question, the judge comes to the conclusion that the act of which the defendant is accused did not take place, then an acquittal should be pronounced in the absence of a crime event. If the answer to this question is yes, then the next question is discussed accordingly.

Similarly, a decision is made on the second issue. If the answer is positive, then the next question is discussed, if negative, then an acquittal is pronounced for lack of corpus delicti.

An acquittal should be issued on the same basis if the defendant's guilt in committing a crime is not confirmed.

When answering the question of whether the commission of an act by the defendant has been proven, it is necessary to find out the sufficiency of evidence for the indisputable conclusion that the act imputed to the defendant is the result of the actions or omissions of the defendant.

A negative answer to the question of the defendant's guilt entails an acquittal for failure to prove his involvement in the commission of this crime. In the case of a positive answer to this question, the court should take into account that the defendant's admission of guilt should be comprehensively verified, like any other evidence. Only if there is a body of evidence in the case, the court has the right to conclude that the defendant is guilty.

The list of circumstances mitigating and aggravating criminal liability is given in Articles 53.54 of the Criminal Code of the Republic of Kazakhstan. It should be noted that the list of aggravating circumstances is exhaustive and is not subject to extended interpretation. All other circumstances that are established by the court cannot be recognized as aggravating circumstances, but may be taken into account when imposing punishment.

A negative answer to the question of whether the defendant is subject to punishment for the crime he has committed can only be when the court finds that the person has committed a minor or moderate crime for the first time, or the act he is charged with has ceased to be socially dangerous. If the answer to this question is positive, the court appoints punishment taking into account the nature and degree of public danger of the crime, the identity of the perpetrator, mitigating and aggravating circumstances.

In the case of an amnesty act, the person is not subject to serving the sentence, as well as when the time spent under arrest absorbs the punishment imposed on the defendant, as well as with a suspended sentence and suspended execution of the sentence.

The type of correctional institution is assigned to a person sentenced to imprisonment, in accordance with the criminal law, depending on the nature of the crime, the commission of a crime intentionally or negligently, the presence of a recidivism and other circumstances.

The issue of resolving a civil claim is discussed if it was the subject of consideration at a court hearing. In the descriptive and motivational part of the verdict, the reasons for satisfying or refusing to satisfy a civil claim or leaving it without consideration must be given. Calculations of the amounts of damage to be satisfied should be provided.

A decision should be made on the property that has been seized in support of a civil claim or possible confiscation. In the case of an acquittal, the court verdict must contain a decision to lift the arrest imposed on the property of the accused or persons who are financially responsible for the actions of the accused.

In accordance with Article 118 of the CPC, the court should make a decision on the material evidence attached to the case file, as well as on the fate of the bail in the event of cancellation of exemption from criminal liability with the establishment of surety for the previous verdict.

The issue of collecting court costs from whom and in what amount should be resolved in accordance with Articles 177, 178 of the CPC.

In accordance with Article 49 of the Criminal Code of the Republic of Kazakhstan, the issue of deprivation of a special military or honorary title, as well as state awards, is resolved.

The question of the possible application by the court of compulsory medical measures provided for in Article 91 of the Criminal Code of the Republic of Kazakhstan arises when a crime is committed by a person who is completely insane or committed by a person who has a mental disorder after the commission of the crime.

If circumstances contributing to the commission of a crime are established during the trial, the court has the right to issue a private ruling in accordance with Article 405 of the CPC.

When deciding on the cancellation, modification or retention of the preventive measure applied to the defendant, the court should be guided by Chapter 18 of the CPC.

If the convicted person has a sentence with a suspended sentence, release from criminal liability with the establishment of a guarantee, the court must in any case decide whether to cancel or maintain this punishment.

In the case of an acquittal, the court also decides on the issue of compensation for damage caused by illegal actions of the investigating authorities, the prosecutor's office, and the court. This issue is regulated by Chapter 4 of the CPC.

If the defendant has been charged under several articles of the Criminal Code, the court decides on the issues set out in paragraphs 1) – 7) of the first part of Article 390 of the CPC for each criminal offense separately.

When several persons are accused of committing a crime (crimes), the court resolves all the issues specified in Article 390 of the CPC in relation to each individual defendant, and thus determines the role and degree of guilt of each in the crime committed.

The court issues a separate ruling when resolving the issues set out in Part 5 of Article 390 of the CPC, which relate to the placement of minor children, and in some cases, the victim, on the protection of the convicted person's property, and in some cases, the victim's property, making a private ruling.

In any case, the court is obliged to postpone the decision of the verdict if the Constitutional Council of the Republic of Kazakhstan has accepted a motion to declare a law or other act to be applied in this case unconstitutional.

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

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