Comment to article 490. Preliminary consideration of a petition for the revision of judicial acts that have entered into force The Criminal Procedure Code of the Republic of Kazakhstan
Petition for review of judicial acts that have entered into legal force
acts on behalf of the Chairman or Chairman of the supervisory judicial board of the Supreme Court of the Republic of Kazakhstan are preliminarily studied by the reporting judge, who, within no more than ten days from the date of receipt of the petition, if there are no grounds for its return without consideration, will file a criminal case.
Within a period of up to one month from the date of receipt of the criminal case, the petition is preliminarily considered by the court in an open court session composed of three judges. The petitions of several persons referred to in Article 486 of this Code, filed in the same case, may be combined and considered in the specified manner in one court session.
Prior to the preliminary consideration of the petition, the reporting judge has the right to instruct the relevant specialists to prepare a scientific opinion on the norms of the laws applied in the criminal case under consideration. For explanations on the scientific conclusion, relevant specialists may be called to a meeting of the supervisory judicial board.
The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan and the protest of the Prosecutor General of the Republic of Kazakhstan, submitted on the grounds specified in part four of Article 485 of this Code, the submission of the Chairman of the cassation board, submitted in accordance with part two of Article 467 of this Code, the rules of preliminary review do not apply and they are considered directly by the supervisory judicial board.
The rules of preliminary review do not apply to supervisory protests of the prosecutor, as well as petitions of persons sentenced to death or life imprisonment, or their defenders, and they are considered directly by the supervisory judicial board, which first considers whether there are grounds provided for in Article 485 of this Code for reviewing a judicial act by way of supervision, after which it considers the prosecutor's protest., petitions on the merits. Having failed to establish these grounds, the collegium issues a decision on the refusal to review the judicial act.
The prosecutor, as well as the person who submitted the petition, are notified of the date of the preliminary consideration of the petition, but their failure to appear does not prevent the decision on the existence or absence of grounds for initiating judicial supervision proceedings.
The preliminary examination of the petition on the issue of the existence of grounds for the initiation of supervisory proceedings is carried out in an open court session. After explaining to the persons who appeared their procedural rights and duties, clarifying the issue of their challenges, petitions and their resolution, the court hears the explanations of the persons who appeared, and the opinion of the prosecutor. The first speaker is the person who has filed a petition for a supervisory review of the judicial act.
Consideration of the case in the supervisory instance is preceded by a preliminary examination of the petition by the reporting judge, who, on behalf of the Chairman or Chairman of the Board of the Supreme Court of the Republic of Kazakhstan, preliminarily examines it and, in the absence of grounds for its return without consideration (paragraphs 1)-2) of Part 1 of Article 489 of the CPC), within no more than ten days from the date of receipt of the petition, a criminal case.
The preliminary examination of the petition is carried out by three judges of the supervisory instance in an open court session within one month from the date of receipt of the criminal case. The petitions of several persons referred to in Article 486 of this Code, filed in the same case, may be combined and considered in the specified manner in one court session.
During the preliminary examination of petitions, judges are required to carefully study the arguments set out in them. The decision of the judges on the preliminary examination of the petition should indicate the circumstances in the case confirming the existence or absence of the grounds provided for in Article 485 of the CPC for reviewing the appealed court decisions, while it should not contain wording prejudging the results of the case in the supervisory instance. If the judges conducting the preliminary review of the supervisory petition disagree on the need to submit the case to the supervisory authority for review of the appealed court decisions, the decision is taken by a majority vote. A judge who does not agree with the majority's decision is also required to sign the resolution, while having the right to express his opinion separately.
Prior to the preliminary consideration of the petition, the reporting judge has the right to instruct the relevant specialists to prepare a scientific opinion on the norms of the laws applied in the criminal case under consideration. For explanations on the scientific conclusion, relevant specialists may be called to a meeting of the supervisory judicial board.
The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan and the protest of the Prosecutor General, submitted on the grounds specified in part four of Article 485 of this Code, do not undergo the preliminary review procedure, are considered directly by the supervisory judicial board.
The rules of preliminary examination do not apply to supervisory protests of the prosecutor, as well as petitions of persons sentenced to death or life imprisonment, or their defenders, and they are considered directly by the supervisory judicial board, which first considers whether there are grounds provided for in Article 485 of this Code for reviewing a judicial act by way of supervision, after which it considers the prosecutor's protest., a motion on the merits. Having failed to establish these grounds, the collegium issues a decision on the refusal to review the judicial act.
The prosecutor, as well as the person who submitted the petition, are notified of the date of the preliminary consideration of the petition, but their failure to appear does not prevent the consideration of the petition.
At the beginning of the preliminary consideration of the petition, their procedural rights and obligations are explained to the persons who appeared, the question of whether they have challenges or petitions is clarified, after their resolution, the court hears the explanations of the persons who appeared, the opinion of the prosecutor. The first speaker is the person who has filed a petition for a supervisory review of the judicial act.
The petitions of several persons referred to in Article 486 of this Code, filed in the same case, may be combined and considered in the specified manner in one court session.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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