Comment to article 441. Cancellation of the verdict with the ruling of a new verdict The Criminal Procedure Code of the Republic of Kazakhstan
The court of appeal in compliance with the requirements of the Chapter
46 of this Code has the right to:
1) to annul the guilty verdict and pass an acquittal if there are grounds provided for in paragraphs 1) and 2) of the first part of Article 35 of this Code.;
2) upon complaint or protest by the prosecution, annul the acquittal and pass a guilty verdict;
3) to cancel the guilty verdict and issue a new guilty verdict;
4) to cancel the acquittal and to pass a new acquittal.
When passing a new guilty verdict, the court of appeal has no right to go beyond the limits of the charge, as well as beyond the limits of the charge and the amount of punishment, which were supported by a public or private prosecutor during the main trial.
In the cases provided for in paragraphs 1), 2,) 3) and 4) of the first part of Article 441 of the CPC, the court shall order the annulment of the verdict of the court of first instance and, according to the rules of Chapter 46 of this Code, shall issue an appeal verdict.
2. The structure and content of the appeal verdict must comply with the requirements of Articles 395 – 402 of this Code.
When the court of appeal issues an acquittal, the operative part of the acquittal must indicate the decision to cancel the preventive measure, if it was chosen, and to recognize the justified rights to compensation for damage caused by unlawful criminal prosecution. In this case, the court draws up a notice explaining the procedure for compensation for damage caused by unlawful criminal prosecution, which is handed over to the acquitted person after the verdict is announced.
4. In the case of an acquittal, due to the absence of corpus delicti in the actions of the defendant, a civil claim must be dismissed without consideration. If a civil claim is left without consideration, the measures to ensure it are not canceled.
5. When passing an acquittal for failure to prove the commission of a crime, the court of appeal must indicate in the operative part its decision to refer the case to the prosecutor in order to take measures to identify the person who committed the crime.
6. When overturning an acquittal with a verdict of guilty, the court of appeal should pay attention to the presence of underage children, elderly parents, and other dependents left unattended.
At the same time, along with the decision of the guilty verdict, the court issues a resolution on the transfer of these persons to the care or custody of relatives or other persons or institutions, and if the convicted person has property or housing left unattended, on taking measures to protect them. If necessary, the court issues a resolution on the placement of unsupervised minor children, disabled parents, and other dependents of the victim, in connection with his severe injury or death as a result of a criminal offense, as well as the protection of the victim's property and home.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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