Comment to article 430. Powers of the appellate instance The Criminal Procedure Code of the Republic of Kazakhstan

1 When considering a case filed with an appeal or protest, the court, at the request of the parties, for the purpose of verification

the legality of the verdict and the correct resolution of the case may:

1) to demand documents related to the state of health, marital status and data on past convictions of the convicted person, the victim and other persons participating in the case, at the request of the parties – and other documents;

2) appoint a forensic psychiatric or other examination;

3) summon additional witnesses, experts, and specialists to the court session and interrogate them, and examine written, physical, and other evidence provided by the parties or requested by the court at their request.;

4) to recognize the materials examined by the court of first instance as inadmissible evidence and exclude them from the evidence;

5) to recognize the materials excluded from the evidence by the court of first instance as admissible and to examine them;

6) investigate the circumstances related to the civil claim and make a decision on the civil claim;

7) perform other actions necessary to ensure the completeness, comprehensiveness and objectivity of the study of all case materials and the establishment of the truth in the case.

2 If there are ambiguities in the testimony of the convicted (acquitted), victims, witnesses, and other persons questioned by the court of first instance, which give rise to different interpretations, the court, on its own initiative or at the request of the parties, has the right to clarify their testimony by questioning them in court on these circumstances.

3 When concluding a procedural agreement or an agreement to achieve reconciliation through mediation in a court of first instance, the court of appeal shall verify the circumstances of their conclusion.

1. The powers of the court of appeal to conduct appropriate procedural actions to collect evidence at a court hearing are exhaustively set out in Part 1 of Article 430 of the CPC and cannot be expanded. They are implemented by him on his own initiative or at the request of the parties. In this case, the decision on the application is made by the court after the parties have discussed the application. Taking into account the additional materials of the parties, the court's right to collect evidence (appointment of expert examinations, interrogation of persons as witnesses, demand for materials, etc.) at a court hearing contributes to the fullest assurance of the principles of the criminal process at the appellate stage.

2. The court of appeal has the right to appoint a forensic psychiatric examination if, based on the requirements of Article 271 of the CPC, its appointment in the case is mandatory, however, the court of first instance and the preliminary investigation authorities did not appoint this examination during the proceedings.

It is allowed to appoint another examination if it is possible to conduct it on the basis of the materials available in the case and additionally submitted. However, if, when considering a case on appeal, it is established that an expert study is necessary, but its production requires clarification of any circumstances or collection of additional materials, objects of expert research, then in such cases an examination can be appointed only when the case is considered by the court of appeal after the annulment of the judicial act of the court of first instance.

3. The court of appeal has the right to demand documents that are important for the accurate identification of the identity of the convicted person and other persons involved in the case. This may be important for characterizing the social danger of the person who committed the crime, the victim's victim behavior, the type and amount of punishment, the type of correctional institution, etc.

4. The court of appeal has the right, if there are ambiguities and contradictory interpretations of the testimony of the victim or witness that have not been eliminated by the court of first instance, to question these persons at a court hearing with their testimony recorded.

5. The court of appeal, on its own initiative or at the request of the parties, has the right to exclude irrelevant, unreliable and inadmissible evidence from the verdict. If the court of first instance unreasonably excluded unexplored evidence that is essential for the proper resolution of the case (the qualification of the deed, the amount of damage, etc.), the verdict is subject to cancellation and referral to a new judicial review. When making a decision, the court of appeal has the right to use as evidence factual data not specified in the verdict, but examined by the court of first instance (paragraph 27 of the normative resolution of the Supreme Court of April 20, 2006 No. 4 "On certain issues of evaluation of evidence in criminal cases").

6. Considering that, on the basis of articles 68 and 69 of the CPC, persons who have fulfilled all the conditions of the procedural agreement may be released from criminal liability; minors, pregnant women, women with young children, women aged fifty-eight and over, men aged six, ten, three and over who have committed a serious crime for the first time that is not related to causing death or serious harm to human health, if they have reconciled with the victim, the applicant, including through mediation persons who have committed a criminal offense or a crime of moderate gravity not related to causing death, if they have reconciled with the victim, the applicant, are also subject to exemption from criminal liability., including through mediation, and has made amends for the damage caused, the court of appeal is obliged to verify the circumstances of the conclusion of a procedural agreement or an agreement to achieve reconciliation through mediation in the court of first instance.

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

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