Comment to article 436. Significant violation of the Criminal procedure law The Criminal Procedure Code of the Republic of Kazakhstan
Significant violations of the criminal procedure law are violations of the principles and other general provisions of this Code committed during pre-trial proceedings or during judicial review of a case, as well as other violations of the law that, by depriving or restricting the legally guaranteed rights of persons involved in the case, non-compliance with the procedure of judicial proceedings or otherwise prevented a comprehensive, complete and objective investigation of the circumstances cases that influenced or could have influenced the decision of a judicial verdict or other court decision.
The verdict is subject to cancellation or amendment when the one-sidedness or incompleteness of the judicial investigation committed by the court of first instance as a result of non-examination of evidence subject to mandatory investigation resulted from the erroneous exclusion of admissible evidence from the proceedings or unjustified refusal by the party to examine evidence that may be relevant to the case, or the examination of inadmissible evidence.
The verdict or resolution is subject to cancellation in any case if:
1) the court has not terminated the criminal case if there are grounds provided for in Article 35 of this Code.;
2) the verdict was passed by an illegal composition of the court;
3) the case is considered in the absence of the defendant, except in the cases provided for in the second part of Article 335 of this Code;
4) the case is considered in court without the participation of a defender or a representative of the victim, when their participation is legally mandatory, or the defendant's right to defense has been violated in another way.;
5) the right of the defendant or the victim to use his native language or the language he speaks, or the services of an interpreter, has been violated in court.;
6) the defendant has not been granted the right to participate in court debates, except in cases when, in accordance with the requirements of this Code, they have not been conducted.;
7) the defendant has not been given the last word, except in cases where its utterance is not provided for in accordance with the requirements of this Code.;
8) the secrecy of the verdict has been violated;
9) the verdict is not signed by the judge.
The absence of the minutes of the court session in the case is not a reason for the cancellation of the appealed (protested) judicial act. In such cases, the court of appeal directs the case to the court of first instance for its completion.
1. In the practice of appeal, it is important to have a common understanding of when a violation of the criminal procedure law is the basis for the cancellation or amendment of a verdict or court order.
The inconsistency of the court's conclusions with the factual circumstances of the case should be understood as errors in the assessment of evidence, the motivation of the decision, the substantiation of the charge by evidence unexplored in the trial, as well as when the information provided in the verdict contradicts the factual data established by the court.
Such violations should be recognized as violations of the criminal procedure law, entailing the unconditional cancellation of a judicial act, if they deprive or restrict the rights of participants in criminal proceedings guaranteed by the CPC by non-compliance with the procedure of judicial proceedings, as well as influenced or could have influenced the decision of a lawful, reasonable and fair sentence. For example, when evaluating evidence, it is necessary to take into account that during the examination and personal search, the established According to the Constitution, everyone has the right to freedom and personal inviolability, therefore, in each specific case, it is necessary to check whether there are legitimate grounds for carrying out these actions, a reasoned decision on their conduct, authorized if necessary by the prosecutor, and compliance with the requirements of the law.
2. Violations of the criminal procedure law specified in Part 3 of the commented article cast doubt on the justice of the verdict and are grounds for its cancellation or amendment on appeal. At the same time, not every violation of the procedural law serves as a basis for the cancellation or amendment of the sentence. If a violation of the procedural law has not affected or could not affect the legality, validity, and fairness of the verdict, it is not a reason to overturn the verdict, but the court may respond to this violation by issuing a private ruling.
3. The one-sidedness and incompleteness of the judicial investigation, which should be understood as the lack of clarification of the essential circumstances of the case or their superficial examination, may also serve as a basis for the cancellation or amendment of the sentence, if the court of appeal, having filled in the gaps of the judicial investigation, does not find other grounds for cancellation or amendment of the sentence.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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