Comment to article 397. Descriptive and motivational part of the guilty verdict The Criminal Procedure Code of the Republic of Kazakhstan

The descriptive and motivational part of the conviction must contain a description of the criminal offense recognized by the court as proven, indicating the place, time, method of its commission, the form of guilt, motives and consequences of the criminal offense. The verdict provides evidence on which the court's conclusions regarding the defendant are based, and the reasons why the court rejected other evidence. The circumstances mitigating or aggravating liability are indicated, as well as the limits of sentencing provided for in the procedural agreement. If a part of the charge is found to be unfounded or an incorrect qualification of a criminal offense is established, the grounds and motives for changing the charge. Having concluded that it is necessary to re-qualify the actions of the defendant or having established that some articles (part of the article, paragraph of the article) are presented unnecessarily, the court in the descriptive and motivational part of the verdict indicates the article (part of the article, paragraph of the article) of the criminal law, according to which the act should be qualified, and indicates the exclusion of the excessively presented article (part articles, paragraphs of the part of the article).

The court is also obliged to indicate the reasons for resolving all issues related to the imposition of criminal punishment, release from it or from its actual serving, and the use of other measures of influence.

The descriptive and motivational part should contain justification for the decisions taken on other issues specified in Article 390 of this Code.

In cases considered in a closed court session, the descriptive and motivational part of the conviction should not contain wording about the circumstances that served as the basis for restricting the publicity of the trial.

In cases with a procedural agreement or an agreement to achieve reconciliation through mediation, the descriptive and motivational part of the guilty verdict is drawn up in accordance with  in accordance with Article 627 of this Code.

The verdict must comply both in form and content with the requirements of Articles 395 – 401 of the CPC of the Republic of Kazakhstan and be stated in clear, understandable terms, consistently, so that each new provision follows from the previous one and is logically linked to it. The verdict should be accessible and easy to read. It is unacceptable to describe events unrelated to the case under consideration, the use of inaccurate wording, unacceptable abbreviations and words unacceptable in official documents.

The descriptive part of the sentence must contain a description of the criminal act, if it was found proven by the court, the circumstances of its commission (place, time, method, etc.), as well as the form of guilt of the defendant, the goals, motives and consequences of the crime. In the case of crimes committed by several persons (a group of persons, a group of persons by prior agreement, an organized group), the descriptive part of the sentence should describe the specific criminal acts committed by each of the defendants. The narrative part of the verdict should not be cumbersome, it should not describe unnecessary events that are not essential to the case.

The reasoning part of the verdict contains evidence, their analysis, and the court's conclusions on the evidence of the charges, on the qualification of actions, on punishment, on the type of recidivism, and on the civil claim.

The reasoning part of the verdict should not be limited to the testimony of the defendant, the victim, witnesses, and written evidence, but should contain the reasons why the court concluded that the person was guilty, why this evidence is sufficient to convict the person, why the court accepted some evidence and rejected others. The testimony of the defendant, victim, and witnesses should be presented from a third party, be consistent and concise, and should not contain circumstances that are not essential to the case. The reasoning part of the verdict sets out only the evidence that was the subject of consideration directly in the main trial. If the case is considered against several defendants, the court should provide an analysis of the evidence against each defendant and for each charge in the verdict.  When making a verdict in a multi-episode case, the circumstances of the crime are presented in chronological order.

In cases where the defendant has been charged under several articles and some of them have not been confirmed in court, the descriptive and motivational part of the verdict provides reasons for finding the defendant guilty of committing some crimes and justifying the commission of other crimes.

If the actions of a defendant who has committed one crime are erroneously qualified by several articles, then in the descriptive and motivational part of the verdict it is sufficient for the court to indicate the exclusion of the erroneously imputed articles as excessively imputed, and in the operative part of the verdict it is then indicated only that the defendant is found guilty under the remaining article.

Similarly, the descriptive and motivational part of the verdict indicates the exclusion of certain episodes of the charge, qualified by one article, if as a result of this the qualification does not change. At the same time, when, as a result of the exclusion of episodes of the charge, the qualification changes, then in the descriptive and motivational part of the verdict, the court should give the reasons for the change in qualifications, indicate the paragraph, part and article of the criminal law according to which the defendant should be found guilty. Accordingly, the operative part of the verdict does not specify the exclusion of episodes of the charges that were found to be unproven.

2-3. In the descriptive and motivational part of the guilty verdict, the court is obliged to indicate the data characterizing the personality of the defendant, circumstances mitigating and aggravating responsibility and punishment, as well as other circumstances that may affect the type and amount of the imposed punishment. In any case, the court, in the descriptive and motivational part of the verdict, is obliged to state the reasons for the application of a suspended sentence, the imposition of punishment below the lowest limit, the transition to another more lenient punishment, release from punishment, the appointment of a type of correctional institution with a deviation from the general rules, the determination of recidivism, the resolution of a civil claim, determining the fate of physical evidence. When the sanction of an article of the criminal law contains more lenient types of punishments in addition to imprisonment, the court is obliged to give in the verdict the reasons for the imposition of imprisonment, and not another more lenient punishment.

When considering a criminal case in a closed court session, the descriptive and motivational part of the verdict should not indicate the motives that were the grounds for restricting the publicity of the trial.

See the commentary to art. 627 of the CPC.

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

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