Comment to article 499. Grounds for resuming criminal proceedings The Criminal Procedure Code of the Republic of Kazakhstan

A sentence or court decision that has entered into legal force, including one issued in accordance with the procedure provided for in Chapter 71 of this Code, may be annulled and proceedings on a criminal case or a petition for confiscation in accordance with the procedure provided for in Chapter 71 of this Code may be resumed due to newly discovered circumstances.

The grounds for resuming proceedings under newly discovered circumstances are:

1) the deliberate falsity of the testimony of the victim or witness, the expert's opinion, as well as the falsification of material evidence, protocols of investigative and judicial actions and other documents, or the deliberate inaccuracy of translation, resulting in the decision of an illegal or unjustified verdict or resolution, established by a court verdict that has entered into legal force.;

2) the criminal actions of an inquirer, investigator or prosecutor established by a court verdict that has entered into legal force, resulting in an unlawful and unjustified verdict, resolution;

3) the criminal actions of judges, established by a court verdict that has entered into legal force, committed by them during the consideration of this case;

4) other circumstances established by the inspection or investigation in accordance with the procedure provided for in Article 502 of this Code, and other circumstances set out in the prosecutor's opinion, unknown to the court at the time of sentencing, definitions that, by themselves or together with previously established circumstances, indicate the innocence of the convicted person or the commission of a criminal offense other in severity than that for which which he was convicted of, or about the guilt of the acquitted person or the person against whom the case was dismissed;

5) recognition by the Constitutional Council of the Republic of Kazakhstan as unconstitutional of a law or other normative legal act that was applied by the court when issuing a judicial act;

6) exemption from criminal liability for a crime that served as the basis for confiscation in accordance with the procedure provided for in Chapter 71 of this Code, on the basis of a court acquittal that has entered into legal force or a decision to terminate criminal prosecution for the absence of an event or corpus delicti, or partial or complete non-application of confiscation of property in the verdict of the court that considered the case on the merits;

7) the expression of the will of the convicted person, in respect of whom the case was considered in accordance with the procedure established by paragraph 2) of the second part of Article 335 of this Code, in the event of his appearance before the body conducting the criminal proceedings.

The circumstances listed in paragraphs 1), 2) and 3) of part two of this article may be established, in addition to a verdict, by a decision of a court, prosecutor, investigator or inquirer to terminate a criminal case after the expiration of the statute of limitations, as a result of an act of amnesty, in connection with the death of the accused or the failure to reach the age for criminal prosecution.

1. In accordance with article 46 of the CPC, criminal proceedings are completed upon the entry into force of a verdict or other final decision in the case (in the case of in cases after special measures have been taken to enforce them).

The resumption of criminal proceedings provided for by law is conditioned by the need to eliminate judicial errors.

Criminal proceedings resumed due to newly discovered circumstances are an independent stage of the criminal process. The goals and objectives of resuming proceedings under newly discovered circumstances are determined by the need to review erroneous judicial acts. This makes this stage similar to the review of judicial acts by way of supervision, pursuing the same goals. However, their difference is that the supervisory board corrects judicial errors based on the available case materials, while the revision of judicial acts based on newly discovered circumstances is based on facts that are not in the case materials.    

In accordance with the procedure provided for in chapter 53 of the CPC, only sentences and court orders that have entered into legal force may be reviewed. The provisions of this chapter do not apply to judicial acts that have not entered into force.

2. Newly discovered circumstances are those circumstances that existed at the time the court issued the verdict or resolution, but they were not attached to the case and, therefore, were not known to the court, were not investigated by it and were not taken into account when passing the verdict or resolution.

The criminal procedure legislation of some countries distinguishes between newly discovered and newly established circumstances.[1] Kazakh legislation does not provide for such divisions, therefore, the concept of "newly discovered circumstances" includes both those circumstances that actually existed at the time of sentencing, but the court was not aware of their existence at the time of sentencing, and those that were established after the issuance of a judicial act authorizing the case, and therefore were also not made known to the court in a timely manner.

3. The unjustified refusal to satisfy the petitions of the participants in the process for the examination of additional materials not included in the case, the interrogation of additional witnesses, which led to the erroneous verdict, resolution, indicates the failure of the court to comply with the requirements of art. 24, part 5 of art. 99 of the CPC and may entail a review of the judicial act that entered into force by way of supervision, but not It can be regarded as a newly discovered circumstance, because before the sentencing, the court was aware of the decisions about them, but the court did not see the need for their investigation.

The second part of this article contains a list of grounds for resuming proceedings under newly discovered circumstances. This list is not exhaustive.

The circumstances specified in the paragraphs 1)-2), 4), 6) In the second part of this article, they are the basis for resuming proceedings on newly discovered circumstances in cases where they have led to the decision of an illegal and unjustified sentence.

        5.Paragraph 1) of the second part of this article lists the factual data on the basis of which the court resolves the case.

        If, after the entry into force of the final decision in the case, it is established that there was a deliberate falsity of the testimony of the victim or witness, expert opinion, forgery of material evidence, protocols of investigative and judicial actions and other documents, or a deliberate inaccuracy of translation, then these circumstances may serve as a basis for resuming proceedings under newly discovered circumstances, if they, firstly,firstly, they are confirmed by a court verdict that has entered into force, and secondly, have resulted in the imposition of an unlawful or unjustified sentence or resolution.

The deliberate falsity of the testimony of the victim or witness, expert opinions, falsification of physical evidence, protocols of investigative and judicial actions and other documents, or deliberate inaccuracy of translation are criminally punishable acts. Their commission by these persons must be established by the court verdict that has entered into legal force against them.

3. The case may not always be completed with a verdict. In some cases, cases may be terminated after the expiration of the statute of limitations, as a result of an amnesty act, due to the death of the accused or the failure to reach the age for criminal prosecution.

The undone illegal decisions of the inquirer, investigator, prosecutor, and court decisions that have entered into legal force to terminate the criminal case on these grounds may also confirm the facts of the commission of criminal offenses by these persons and serve as the basis for resuming proceedings under newly discovered circumstances. An indispensable condition is the illegality and unreasonableness of the verdict or decision in connection with the specified circumstances.

4. The legality and validity of a sentence is explained in Article 388 of the CPC: a sentence is lawful if it is passed in compliance with all the requirements of the law and on the basis of the law, and justified if it is based on evidence presented to the court, comprehensively and objectively examined at a court hearing.

The presence of the circumstances specified in the paragraphs 1), 2), 3), 6) The second part must be confirmed by a court verdict that has entered into force (in some cases, a court decision).

5. The legislator does not link the grounds specified in paragraphs 3) (criminal actions of judges committed by them during the consideration of the case, established by the court verdict that entered into force), 5) (recognition by the Constitutional Council of the Republic of Kazakhstan of unconstitutional law or other normative legal act that was applied by the court when passing the judicial act), 7) (the expression of the will of the convicted person, in respect of whom the case was considered in accordance with the procedure established by paragraph 2) of the second part of Article 335 of this Code, in case of his appearance at the body, conducting criminal proceedings) of the second part of this article with the legality and validity of the verdict, the decision rendered in the case. Therefore, these circumstances, regardless of anything, are grounds for resuming proceedings on the newly discovered circumstances. Receiving a bribe by a judge is not always associated with an illegal verdict or court order. Nevertheless, the legislator, without any conditionality, refers the commission of a crime by a judge in these cases to the basis for resuming proceedings under newly discovered circumstances, since the legality of the sentence imposed by the judge who received a bribe is always questionable.

6. The basis for reviewing a case based on newly discovered circumstances is also other circumstances established by the inspection or investigation in accordance with the procedure provided for in Article 502 of this Code and other circumstances set out in the prosecutor's conclusion that were unknown to the court at the time of sentencing, definitions that, by themselves or together with previously established circumstances, indicate the innocence of the convicted person or the commission of another according to the severity of the crime, than the one for which he was convicted, or about the guilt of the acquitted person or the person against whom the case was dismissed.;

7. The basis provided for in paragraph 5) is related to the court's application of a law or other normative legal act in resolving a case, which were subsequently declared unconstitutional by the Constitutional Council of the Republic of Kazakhstan (after the verdict or resolution entered into force).

A judge can avoid the error of applying an unconstitutional law if the Constitutional Council has already issued a corresponding resolution on this law, or if the court, in accordance with the requirements of part two of Article 45 of the CPC, suspended the proceedings in connection with an appeal to the Constitutional Court of the Republic of Kazakhstan with a proposal to declare unconstitutional the law to be applied in this criminal case or other regulatory legal an act infringing on the human and civil rights and freedoms enshrined in the Constitution of the Republic of Kazakhstan.

This article states that the Constitutional Council issued a resolution declaring unconstitutional the law or other normative legal act applied by the court in resolving the case, infringing on human and civil rights and freedoms enshrined in the Constitution of the Republic of Kazakhstan, after the entry into force of the verdict, court order. And this serves as the basis for resuming the proceedings.

8. In appropriate cases, the court may, prior to sentencing, decide on the confiscation of property in accordance with the procedure provided for in Chapter 71 of the CPC. However, there may be a situation where, when considering cases on the merits, the court does not find the defendant guilty and acquits him or convicts him and imposes punishment without additional punishment in the form of confiscation of property, or the proportion of property confiscated under the verdict is less than in the decision issued before the verdict. The legislator considered it possible to resolve these inconsistencies in judicial acts by resuming proceedings based on newly discovered circumstances, but not on the criminal case, but on the materials on the basis of which the court issued a decision on confiscation of property before the court verdict.

It appears that when an acquittal is issued, court decisions issued in civil proceedings on claims initiated by the prosecutor in accordance with Part 4 of Article 668 of the CPC are also subject to review due to newly discovered circumstances.

A change in the criminal law applied by the court on the issue of confiscation of property after the entry into force of the verdict cannot serve as a basis for resuming proceedings on the case due to newly discovered circumstances. The sentence is brought into line with the retroactive law in accordance with paragraph 15) of the first part of Article 476 and the norms of Chapter 51 of the CPC.

9. The general rule states that the main trial must be conducted with the mandatory participation of the defendant. However, in cases stipulated by the second part of Article 335 of the CPC, it is allowed to consider the case in the absence of the defendant.

According to paragraph 7) of the second part of this article, voluntary appearance after the entry into force of the verdict of a convicted person who, during the consideration of the case in court, was outside the Republic of Kazakhstan and evaded court attendance, is an independent basis for resuming proceedings on the case due to newly discovered circumstances. The specified paragraph states that the convicted person must appear before the body conducting the criminal process. Meanwhile, by this time, the proceedings in the case have already been completed and no body is conducting the process on it. It seems that a convicted person who has come from abroad has the right, in accordance with Part 1 of Article 502 of the CPC, to personally file a petition to the court to initiate proceedings on the newly discovered circumstances or to request the prosecutor to do so. Of course, the fact of his arrival in Kazakhstan must be registered by the relevant authorities. Persons convicted in absentia and staying outside the Republic of Kazakhstan after the entry into force of the sentence have the right to apply to the court for the resumption of proceedings on newly discovered circumstances on the grounds specified in part two of this article. The content of this provision in the CPC corresponds to paragraph (d) of paragraph 2 of article 14 of the International Covenant on Civil and Political Rights, which provides for the right of everyone to be tried in his presence and to defend himself personally or through a lawyer of his own choosing.

[1] For example, see: article 413 of the Code of Criminal Procedure of the Russian Federation, Moscow, Prospekt, 2003, p. 562

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

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