Comment to article 458. 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 during pre-trial proceedings and (or) during judicial review of a case, which, by depriving or restricting the legally guaranteed rights of persons participating in the case, non-compliance with the procedure of judicial proceedings or otherwise prevented a comprehensive and objective investigation of the circumstances of the case, influenced or could have influenced the decision of the judicial verdict.
The verdict and the appeal decision are subject to cancellation in any case if violations of the criminal procedure law specified in the third part of Article 436 of this Code are committed during the proceedings.
1. Significant violations of the criminal procedure law are violations of the principles and other general provisions of the CPC during the judicial review of a case, which, by depriving or restricting the legally guaranteed rights of persons participating in the case, non-compliance with the procedure of judicial proceedings, or otherwise prevented a comprehensive, complete and objective investigation of the circumstances of the case, influenced or could have influenced the decision of a judicial verdict.
Not any violation of the criminal procedure law can lead to the cancellation or amendment of a judicial act, but only a significant one. In order to determine whether a violation of the law is significant, the court of cassation must establish that it has prevented a comprehensive, complete and objective investigation of the circumstances of the case by depriving or restricting the legally guaranteed rights of persons involved in the case, non-compliance with the judicial procedure, or otherwise influenced or could have influenced the decision of a judicial verdict. In the theory and practice of criminal procedure, two groups of grounds are distinguished depending on the materiality of violations of the criminal procedure law: 1) grounds that do not entail the unconditional cancellation or amendment of a judicial act, and 2) grounds that entail the unconditional cancellation or amendment of a judicial act.
The first group of grounds includes such violations of the criminal procedure law, the significance of which depends on the actual circumstances of the commission of the crime and other features of the criminal case or the specifics of certain types of legal proceedings. In some cases, they may be recognized as significant and will lead to the cancellation or amendment of the judicial act, in other cases they may not be recognized by the court as significant and will not lead to the cancellation or amendment of the judicial act.
The second group of grounds entailing the unconditional cancellation of the verdict of the first instance or the decision of the appellate instance includes the following violations of the criminal procedure law: 1) the court, if there are grounds provided for in Article 35 of the CPC, did not terminate the criminal case; 2) the verdict was passed by an illegal composition of the court; 3) the case was considered in the absence of the defendant, except in cases when the defendant, accused of committing a criminal offense or a crime of minor and moderate gravity, petitions for consideration of the case in his absence.; when the defendant is outside the Republic of Kazakhstan and avoids appearing in court; if the defendant, who is in custody, refuses to appear and attend the court hearing (Part 2 of Article 335 of the CPC); 4) the case is considered in court without the participation of a defense lawyer 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 defendant's or the victim's right to use their native language or the language they speak, or the services of an interpreter, has been violated in court.; 6) the defendant was not given the right to participate in court arguments; 7) the defendant was not given the last word; 8) the secrecy of the verdict was violated; 9) the verdict was not signed by the judge (part 3. art.436; 458 CPC).
It should be borne in mind that if all the circumstances of the case are sufficiently fully established and the possibilities for collecting new evidence have been exhausted, the court of cassation has the right, if there is a protest or complaint from the victim or his representative, to increase the punishment or apply the law on a more serious crime, without canceling judicial acts of the first and appellate instances, and without referring the case to a new one. judicial proceedings (Article 463 of the CPC). An acquittal may be overturned by a court of cassation only upon the protest of the prosecutor or the complaint of the victim or his representative, as well as upon the complaint of an acquitted person who disagrees with the grounds for acquittal.
At the same time, an acquittal, a decision to dismiss a case, or another decision rendered in favor of the defendant cannot be overturned on grounds of a significant violation of the criminal procedure law, unless the innocence of the acquitted person or the essence of another decision rendered in favor of the defendant is in doubt (Part 2 of Article 461 of the CPC).
If a new acquittal is overturned by the court of appeal, the conviction of the court of first instance remains unchanged.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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