Comment to article 439. Cancellation of the guilty verdict with the termination of the case The Criminal Procedure Code of the Republic of Kazakhstan
When considering appeals and protests, the court of appeal shall overturn the verdict and terminate the case if there are grounds provided for in paragraphs 3) to 10) of the first part of Article 35 and the first part of Article 36 of this Code.
Upon termination of the case on the grounds provided for in paragraph 9) of the first part of Article 35 of this Code, the court of appeal resolves the issues referred to in Article 520 of this Code and, in accordance with Article 521 of this Code, issues a resolution.
The parties have the right to request the termination of the case in connection with the reconciliation of the convicted person with the victim. In such cases, the court of appeal verifies the existence and reliability of the circumstances indicated in the petitions. Upon establishing the grounds according to which the case is subject to termination or may be terminated due to reconciliation of the parties, the court issues a decision to overturn the verdict and terminate the case on the specified basis.
1. The cancellation of a guilty verdict with the termination of a criminal case is allowed on the grounds specified in Part 1 of Article 439 of the CPC, if there is no reason to send the case to the prosecutor in accordance with Article 323 of the CPC or a new trial.
2. If the appellate instance comes to the conclusion that it is necessary to qualify an act under an article of the Criminal Code providing for a crime for which criminal prosecution is carried out in private or in a public-private manner, it decides on reclassification to the relevant article. The Criminal Code also appoints punishment for it only if there is a victim's statement about the criminal prosecution. In the absence of such a statement, the court's verdict is subject to cancellation, and the case is terminated on the grounds specified in paragraph 5) of part 1 of Article 36 of the CPC.
3. In case of cancellation of the verdict and termination of the case on the grounds specified in paragraphs 3),5),6),7),8),9) In the first part of Article 36 of the CPC, the appellate instance leaves the civil claim without consideration.
Termination of a criminal case on the grounds specified in paragraphs 3), 4) and 11) of the first part of this Article is not allowed if the person whom the applicant directly refers to as the person who committed the criminal offense (witness entitled to defense), the suspect, the accused, as well as the defendant or his legal representatives they object to this. In this case, the proceedings on the case continue and are completed if there are grounds for that by a verdict of guilty with the release of the person from punishment or criminal liability.
To make a decision on the termination of a criminal case on the grounds specified in paragraphs 3), 4), 9), 10) and 11) of the first part of Article 36 of the CPC, the consent of the victim is not required.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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