Comment to article 448. General conditions of appeal, protest of sentences, court decisions in the cassation procedure of the Criminal Procedure Code of the Republic of Kazakhstan

According to the rules of this chapter, verdicts, rulings of district and equivalent courts (including specialized, inter-district courts) on complaints are subject to review only after their consideration in the appellate instance, protests, as well as verdicts and rulings of the appellate instance.

The following court decisions are not subject to cassation review: during the trial on the issues specified in the second part of Article 10 of this Code; concerning the procedure and method of examining evidence, petitions of participants in the process, and maintaining order in the courtroom; in connection with the refusal to charge public and private prosecutors; on issues related to to the competence of the investigating judge.

The circle of persons entitled to file cassation complaints and the procedure for filing complaints are determined according to the rules specified in Articles 414 and 417 of this Code.

Persons who are not parties to the case may also file a cassation appeal against the ruling regarding their rights and legitimate interests.

A protest on the review of a judicial act in cassation may be brought by the prosecutor of the region and the prosecutor equivalent to him, as well as by the Prosecutor General of the Republic of Kazakhstan and his deputies according to the rules specified in Article 417 of this Code.

When deciding on the appeal of a judicial act in cassation, the Prosecutor General of the Republic of Kazakhstan and his deputies, the prosecutor of the region and the prosecutor equivalent to him have the right to demand from the court a criminal case, which must be returned to court or sent along with the protest to the cassation instance.

The filing of a cassation appeal, a protest for a review of an appeal decision, or a sentence based on the innocence of the convicted person, as well as in connection with the need to apply the law on a less serious criminal offense, the severity of the punishment, or on other grounds leading to an improvement in the convict's situation, is not limited in time.

The filing of a cassation appeal, a protest on the revision of an appeal decision, or a verdict based on the deterioration of the convict's (acquitted) situation is allowed within six months from the date of its announcement.

The specified period, if missed, cannot be restored. The actions of the court of cassation instance to prepare a case for consideration at a court hearing on the basis of cassation complaints, protests filed within a six-month period and the adoption of the decision itself, which worsens the situation of the convicted person, are not included in the six-month period and they can be carried out after its expiration, but in compliance with the deadlines established for the consideration of cases in the cassation instance.

The reason for the consideration of the case in the cassation instance may be the presentation of the chairman of the appeals board, introduced in the case provided for in the third part of Article 446 of this Code.

Cassation (Latin sassatio – annulment, destruction) – review of a lower court decision by a higher instance for reasons of violations of laws by the lower instance or non-compliance with the rules of judicial procedure; on the basis of a request for such review and for the annulment of a court decision (cassation appeal), without review, unlike an appeal, of the case on the merits, then This is based on the materials available in the case and additionally submitted, the list of which is extremely limited by law.

According to paragraph 3 of Article 11 of the Constitutional Law of the Republic of Kazakhstan dated December 25, 2000 No. 132 "On the judicial system and the Status of Judges of the Republic  Kazakhstan" one of the bodies of the regional and equivalent courts is the cassation judicial board, which performs the function of the court of cassation instance. The Cassation judicial board is headed by the chairman of the regional and equivalent courts. In the Republic of Kazakhstan, there are cassation judicial boards of regional courts (there are 14 of them, according to the number of regions) and cassation judicial boards of equivalent courts, which include the courts of Astana and Almaty, as well as the Military Court of the Republic of Kazakhstan.

According to Part 3 of Article 52 of the CPC, cases in the cassation instance are considered collectively by at least three judges under the chairmanship of the chairman of the regional and, accordingly, the equivalent court.

In case of temporary absence of the chairman of the regional court (being on a business trip, vacation, due to illness, etc.), the chairman of the sessions of the cassation judicial board is assigned to the judge of the cassation judicial board of the relevant court. The assignment of the duties of the presiding judge to the judge of the cassation judicial board is carried out by order of the chairman of the regional or equivalent court.

According to the current principle of instance, the court of cassation verifies the legality, validity and fairness of verdicts, decisions of district and equivalent courts (including specialized, inter-district courts) rendered by them in the first instance, only after their consideration by the court of appeal.

Accordingly, the court of cassation reviews directly, or along with judicial acts of the courts of first instance, as well as verdicts and decisions of the court of appeal.

Sentences and court rulings issued in connection with the refusal to charge public and private prosecutors on matters falling within the competence of the investigating judge, i.e. authorizing preventive measures to extend their term, resolving complaints against the actions and decisions of persons conducting criminal prosecution, or against the actions of the prosecutor in the pre-trial stages of the criminal process, as well as on issues related to the procedure and method of examining evidence, petitions of participants in the process, and maintaining order in the courtroom.

The circle of persons who have the right to bring cassation complaints against a verdict or court decision includes the parties to the criminal process.

The convicted person has the right of cassation appeal. An acquitted person in a criminal case may appeal against both the grounds and motives for acquittal, and may ask the court of cassation to clarify the wording questioning his innocence, to demand that judicial acts be supplemented with an indication recognizing his right to compensation for damage caused by illegal actions of the bodies conducting the criminal process, if this is not done. courts of lower judicial instances, etc.

A cassation appeal can be filed directly by the convicted person, the acquitted person, as well as their defenders, legal representatives.

The victim has the right of cassation appeal against judicial acts of the first and appellate instance in the part that is directly related to him as a victim. If the victim is recognized as a civil plaintiff, he has the right to appeal the verdict also regarding the decision on the civil claim.

The victim and his representative may file cassation complaints as against a guilty verdict based on the improper application of criminal law by the courts of the first or appellate instance, raising the issue of the need to apply criminal law on a more serious crime to the convicted person and impose a more severe punishment in connection with the reclassification, or to increase the punishment imposed on the convicted person due to its excessive leniency, including including without changing the qualification of his actions, as well as an acquittal.

The civil plaintiff, the civil defendant and their representatives have the right to appeal the verdict in the part relating to the civil claim.

Persons who are not parties to the case may also appeal against the court's ruling, as far as their rights and legitimate interests are concerned.

5. A protest on the review of a judicial act on appeal may be brought by a prosecutor who participated in the consideration of the case as a public prosecutor. The prosecutor of the region and equivalent prosecutors, as well as the Prosecutor General of the Republic of Kazakhstan and his deputies, within their competence, have the right to bring a cassation protest, regardless of their personal presence at a court session of the court of first instance or in the court of appeal.

When deciding on the appeal of a judicial act in cassation, the Prosecutor General of the Republic of Kazakhstan and his deputies, the prosecutor of the region and the prosecutor equivalent to him have the right to demand a criminal case from the relevant court by their official request, including through the use of communication channels. If a cassation appeal is filed, the case is sent to the appropriate court for consideration, in other cases the case is returned to the court of first instance.

Article 417 of the CPC, to which reference is made in this article, provides for the general conditions for filing appeals and protests through the court that issued the verdict, resolution, therefore, when filing cassation complaints, protest should be guided by article 450 of the CPC, which provides for filing cassation complaints or protests directly to the cassation instance.

The Criminal Procedure Law establishes that a cassation appeal or cassation appeal for review of an appeal decision or sentence based on the deterioration of the situation of a convicted (acquitted) person may be filed within six months from the date of their entry into force. The specified period is set specifically for filing a complaint or protest, but from the date of registration of the relevant cassation complaint or protest in the court of cassation instance, this period does not apply to subsequent court actions for their consideration.

The filing of a complaint or protest for review in the cassation instance of a verdict, a decision of the court of first instance, an appeal decision, or a verdict based on the innocence of the convicted person, as well as in connection with the need to apply the law on a less serious crime, the severity of the punishment, or on other grounds leading to an improvement in the situation of the convicted person, is not limited in time.

If the cassation appeal or protest is withdrawn and there are no other cassation complaints or protests, the cassation proceedings initiated on the cassation appeal or protest are subject to termination.

The withdrawal of a complaint or protest is carried out by the persons who submitted them, and is allowed before the court of cassation begins considering the case. A defender, legal representative, or representative does not have the right to withdraw complaints filed in the interests of the defendant or the represented person without their consent. The convicted or acquitted person has the right to withdraw the complaints of the defender, legal representative and representative filed in his interests. The prosecutor's protest may be withdrawn by a higher prosecutor.

The court's decision on a motion to withdraw a complaint or protest is drawn up in the form of a board decision.

In cases provided for in Article 446 of the CPC, when the verdict or resolution passed upon reconsideration by the court of appeal contradicts the earlier verdict or resolution of the same court, the chairman of the appellate judicial board submits a proposal to eliminate the contradictions to the cassation instance of the regional and equivalent courts (See for more details - commentary to part3, Article 446 of the CPC). This submission is the reason for the consideration of the case in the cassation 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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