Comment to article 429. The procedure for considering a case in an appellate instance The Criminal Procedure Code of the Republic of Kazakhstan

The appellate instance considers cases in open court, except for the cases specified in Article 29 of this Code. The presiding judge opens the court session, announces which case is being considered and on whose appeal (private) complaints or protest. After that, the presiding judge announces the composition of the court, the names of the persons present who are the parties to the case, as well as the names of the interpreters.

The presiding judge explains to the persons participating in the meeting their procedural rights when considering the case in the appellate instance, including the conclusion of a procedural agreement or an agreement to achieve reconciliation through mediation, and interviews the parties about their challenges and petitions and, if they are filed, clarifies the opinion of the participants in the process on them, after which the court, in compliance with in accordance with the procedure provided for in Article 344 of this Code, shall issue a resolution based on the results of their consideration.

If a participant in the process has filed a motion to verify the legality of the decision of the court of first instance to restore the missed deadline for appeal, appeal of the verdict, or resolution, then this petition is subject to consideration immediately after the resolution of the challenges. If the decision to restore the missed deadline is recognized as illegal, the appellate instance issues a decision to cancel it and terminate the appeal proceedings on a complaint or protest filed with a missed deadline. If the restoration of the missed deadline is found to be correct, the appellate instance continues to consider complaints and protests in accordance with the procedure provided for in this article.

The person submitting additional materials to the court is obliged to indicate how they were obtained and why it was necessary to submit them, as well as to justify the need to complete the judicial investigation conducted by the court of first instance. Additional materials cannot be obtained through investigative actions.

If the parties request that new materials be added to the case or that they be requested and examined, as well as that the witnesses, victims, experts, and specialists indicated by them be questioned, or that other actions be taken to fill in the gaps in the judicial investigation in the first instance, the court hears the opinion of the participants in the process, after which it issues a decision on their satisfaction or rejection.. If the appellate instance has decided to conduct a judicial investigation, then the petitions of the parties for the interrogation of witnesses who appeared on their initiative are subject to satisfaction. If, in connection with the satisfaction of petitions, time is required to conclude a procedural agreement or an agreement to achieve reconciliation through mediation or other actions, the court shall declare a break and, if necessary, extend the time limit for consideration of the case in the appellate instance.

If it takes time for the scheduled examinations to be carried out, the court shall declare a break and, if necessary, extend the time limit for consideration of the case in the appellate instance.

The court of appeal, according to the rules prescribed for the court of first instance, examines additional materials submitted by the parties or requested at their request, expert opinions received, and interrogates persons summoned to the meeting.

If a procedural agreement or an agreement on reaching reconciliation through mediation is concluded in the court of first instance, the court verifies the legality within the limits of these agreements. After the cancellation of the verdict of the court of first instance on the grounds provided for by law, when considering the case at a court session of the appellate instance, according to the rules of the court of first instance, the parties may conclude a procedural agreement or an agreement to achieve reconciliation through mediation.

After the judicial investigation, the court, according to the rules of judicial debate, hears the speeches of the participants in the process, who state the motives and arguments of their complaints, protests or objections to them. In their statements, the parties have the right to refer to both the materials examined by the court of first instance and additional materials examined by the appellate instance. The first to speak is the participant in the process who filed a complaint or protest, if there are several of them, the court, taking into account their opinion, sets the order of speeches. If the complaint or protest of the prosecution raises the issue of the deterioration of the situation of the convicted (acquitted), the defense speaks after hearing the statement of the prosecution.

The prosecutor participating in the court of appeal expresses his opinion on the appeals under consideration, sets out the arguments indicated in the protest, gives an opinion on the legality of the judicial acts that took place in the case, and, if necessary, supports the state prosecution.

When the court of appeal examines new evidence, interrogates the convicted (acquitted), witness, victim, expert, specialist and other persons, a protocol of the court session is kept, which is drawn up in accordance with the requirements of Article 347 of this Code. The parties and persons questioned at the session of the appellate instance have the right to get acquainted with the minutes of the court session and bring their comments to it in accordance with the procedure provided for in Article 348 of this Code. Comments on the protocol are considered in accordance with the procedure provided for in Article 349 of this Code.

The rules of procedure of the court session and the measures taken against violators are determined by the rules of Articles 345, 346 of this Code. The procedure for making decisions in the conference room is determined by the rules of Article 389 of this Code.

1. Criminal proceedings in the court of appeal shall be conducted in accordance with the procedure established by this Code. The consideration of the case on appeal is carried out by analogy with the session of the court of first instance in open or, if there are grounds, in closed session. The proceedings in the case, as a rule, must be conducted in the language in which the verdict was pronounced.

In all cases, when a closed meeting is held, the appeal decision on the case is publicly announced.

2. The presiding judge opens the court session, announces which case is being considered and on whose appeal (private) complaints or protest.  Then, based on the case file, he checks the attendance of the participants in the process, depending on which the court decides on the possibility of considering the case or postponing the hearing.

If the case continues to be considered, the presiding judge shall announce the composition of the court, the names of the persons present who are the parties to the case, as well as the names of the interpreters. Then challenges are allowed to the composition of the court, the prosecutor, the secretary of the court session, the interpreter.

3. The chairman explains to the persons participating in the meeting their procedural rights when considering the case in the appellate instance.:

The defendant or the convicted, the acquitted has the right: to participate in court proceedings before the court of appeal and to enjoy all the rights of a party, to file challenges and petitions, to participate in the examination of evidence, to provide explanations, to participate in debates, to appeal the verdict in cassation, to review the minutes of the court session, to submit comments on it, to participate in the judicial review of complaints or protest, to file a petition or to express consent to conclude a procedural cooperation agreement and conclude a procedural agreement ( art .65 CPC).

The victim has the right to: to participate in court proceedings before the court of appeal and to enjoy all the rights of a party, to file challenges, petitions, to participate in the examination of evidence, to provide explanations, to participate in debates, to appeal the verdict in cassation, to review the minutes of the court session, to submit comments on it, to participate in the judicial review of complaints or protest, to reconcile, including through mediation, with the suspect, the accused, the defendant in cases stipulated by law.; to know about the intention of the parties to conclude a procedural agreement, its terms and consequences, to propose their own terms for compensation for damage caused by a crime, or to object to its conclusion (art.71 CPC).

4. Then the presiding judge explains the rights of the parties to conclude a procedural agreement or an agreement to achieve reconciliation through mediation and interviews the parties about their challenges and petitions, and if they are filed, clarifies the opinion of the participants in the process on them, after which the court, in compliance with the procedure provided for in Article 344 of this Code, makes a decision based on the results of their consideration..

If a participant in the process has filed a motion to verify the legality of the decision of the court of first instance to restore the missed deadline for appeal, appeal of the verdict, or resolution, then this petition is subject to consideration immediately after the resolution of the challenges. If the decision to restore the missed deadline is recognized as illegal, the appellate instance issues a decision to cancel it and terminate the appeal proceedings on a complaint or protest filed with a missed deadline. If the restoration of the missed deadline is found to be correct, the appellate instance continues to consider complaints and protests in accordance with the procedure provided for in this article.

Additional materials in the form of documents or objects may be submitted by the participants in the process before the beginning of the day of the court of appeal session or in the preparatory part of the court of appeal session. The person submitting additional materials to the court is obliged to indicate how they were obtained and why it was necessary to submit them, as well as to justify the need to complete the judicial investigation conducted by the court of first instance.

Additional materials cannot be obtained through investigative actions.

If the parties request that new materials be added to the case or that they be requested and examined, as well as that the witnesses, victims, experts, and specialists indicated by them be questioned, or that other actions be taken to fill in the gaps in the judicial investigation in the first instance, the court hears the opinion of the participants in the process, after which it issues a decision on their satisfaction or rejection.. If the appellate instance has decided to conduct a judicial investigation, then the petitions of the parties for the interrogation of witnesses who appeared on their initiative are subject to satisfaction. If, in connection with the satisfaction of petitions, time is required to conclude a procedural agreement or an agreement to achieve reconciliation through mediation or other actions, the court shall declare a break and, if necessary, extend the time limit for consideration of the case in the appellate instance.

If it takes time for the scheduled examinations to be carried out, the court suspends the proceedings on the case. Upon resumption of proceedings, the court, if necessary, extends the time limit for consideration of the case in the appellate instance.

The court of appeal, in accordance with the rules prescribed for the court of first instance, conducts a judicial investigation and examines additional materials submitted by the parties or requested at their request, expert opinions received, and interrogates persons summoned to the meeting.

If a procedural agreement or an agreement on reaching reconciliation through mediation is concluded in the court of first instance, the court verifies the legality within the limits of these agreements. After the cancellation of the verdict of the court of first instance on the grounds provided for by law, when considering the case at a court session of the appellate instance, according to the rules of the court of first instance, the parties may conclude a procedural agreement or an agreement to achieve reconciliation through mediation.

After the judicial investigation, the court, according to the rules of judicial debate, hears the speeches of the participants in the process, who state the motives and arguments of their complaints, protests or objections to them. In their statements, the parties have the right to refer to both the materials examined by the court of first instance and additional materials examined by the appellate instance. The first to speak is the participant in the process who filed a complaint or protest, if there are several of them, the court, taking into account their opinion, sets the order of speeches. If the complaint or protest of the prosecution raises the issue of the deterioration of the situation of the convicted (acquitted), the defense speaks after hearing the statement of the prosecution.

The state prosecutor participating in the court of appeal, the prosecutor expresses an opinion on the appeals under consideration, sets out the arguments indicated in the protest, gives an opinion on the legality of the judicial acts that took place in the case, and also supports the state prosecution, if necessary.

When the court of appeal examines new evidence, interrogates the convicted (acquitted), witness, victim, expert, specialist and other persons, a protocol of the court session is kept, which is drawn up in accordance with the requirements of Article 347 of this Code. The parties and persons questioned at the session of the appellate instance have the right to get acquainted with the minutes of the court session and bring their comments to it in accordance with the procedure provided for in Article 348 of this Code. Comments on the protocol are considered in accordance with the procedure provided for in Article 349 of this Code.

The rules of procedure of the appellate court session and the measures taken to ensure order in the courtroom, the procedure for the meeting of judges and the adoption of an appeal decision, are similar to the procedural form of these procedures established by law in relation to the court of first instance, and are determined by the rules of Articles 345, 346 of this Code. The procedure for making decisions in the conference room is determined by the rules of Article 389 of this Code, i.e. by observing the secrecy of the conference room.

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

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