Comment to article 623. Actions of a judge in a case involving a procedural plea agreement concluded at the pre-trial stage The Criminal Procedure Code of the Republic of Kazakhstan

The judge, having received a criminal case with a procedural agreement on admission of guilt and a request for consideration of the case in conciliation proceedings, verifies compliance with the requirements of the law of the concluded procedural agreement, and then issues a decision on:

1) the appointment of proceedings in the conciliation proceedings;

2) the return of the criminal case to the prosecutor, if there are no grounds for the application of conciliation proceedings;

3) the return of the criminal case to the prosecutor with the possibility of drawing up a new agreement, if the court does not agree with the qualification of the crime, the size of the civil claim, the type and (or) the amount of punishment.

After the parties conclude a new procedural agreement on the admission of guilt in accordance with the court's decision on the qualification of the crime, the size of the civil claim, the type or amount of punishment, the prosecutor sends the criminal case together with the new procedural agreement to the court for its consideration in the conciliation proceedings.

If the judge does not agree with the new procedural agreement on admission of guilt, he issues a decision to refuse to consider the case in conciliation proceedings and sends the case to the prosecutor for the general procedure.

In order to make a decision on the grounds specified in paragraphs 2) and 3) of part one of this Article, the court shall hold a preliminary hearing of the case in accordance with the procedure provided for in Article 321 of this Code.

1. If a procedural agreement is concluded during the pre-trial proceedings, the prosecutor shall forward the criminal case with the said agreement, but without an indictment, to the court of jurisdiction with a request for consideration of the case in conciliation proceedings.

Since the conciliation proceedings are based solely on the existence of a procedural agreement, the judge, before determining the procedure for the trial of the case in this proceeding, examines it and focuses on the circumstances that will allow assessing the compliance of the procedural agreement with the law.

2. Based on the results of studying the case, the judge, having found no violations of the criminal procedure law when concluding a procedural agreement on admission of guilt, alone, without holding any meeting, issues a resolution on the trial of the case in conciliation proceedings, indicates the time and place of the trial, as well as the persons to be summoned to court.

3. If there are appropriate grounds, the judge may, in a criminal case entered into with a procedural agreement on admission of guilt, make one of the decisions specified in paragraphs 2)-3) of the first part of this article on:

2) the return of the criminal case to the prosecutor, if there are no grounds for the application of conciliation proceedings;

3) the return of the criminal case to the prosecutor with the possibility of drawing up a new agreement, if the court does not agree with the qualification of the crime, the size of the civil claim, the type and (or) the amount of punishment.

In order to make these decisions, the court, observing the time period specified in the second part of Article 382 of this Code, appoints and conducts a preliminary hearing of the case in accordance with the procedure provided for in Article 321 of this Code.

Following the results of the preliminary hearing, the judge returns the criminal case to the prosecutor by his decision, unless the grounds provided by law for concluding a procedural agreement have been established.

If, following the results of the preliminary hearing of the case, the judge comes to the conclusion that the crime was incorrectly qualified, the amount of the civil claim, and does not agree with the type and (or) the amount of punishment specified in the procedural agreement, he issues a resolution to return the criminal case to the prosecutor with the possibility of drafting a new agreement.

It seems that the incorrect qualification of a crime in the procedural agreement may serve as a basis for returning the case to the prosecutor in case of incorrect application of a criminal law providing for a more severe punishment, i.e. when it is necessary to change the qualification of the crime specified in the procedural agreement to the law on a less serious crime. At the same time, the qualification of the crime is assessed by the judge, taking into account the wording in the procedural agreement of the crime event and the general provision that the court, on its own initiative, does not have the right to worsen the situation of the defendant and considers the case within the limits of the charge supported by the public prosecutor.

As for the judge's disagreement with the civil claim as the basis for sending the case to the prosecutor to draw up a new procedural agreement, in this case the judge compares the amount of the civil claim and the amount of property damage specified in the procedural agreement when describing the crime event. The case must be returned to the prosecutor for drafting a new procedural agreement if the amount of the civil claim for compensation for property damage exceeds the amount (amount) of damage caused by the crime specified in the procedural agreement. If the amount of the civil claim established by the victim (civil plaintiff) is lower than the amount of damage caused by the crime, this cannot serve as a basis for returning the criminal case to the prosecutor.

It is not excluded that, based on the results of the preliminary hearing of the case appointed in accordance with part four of this article, the judge may order the trial of the case in conciliation proceedings if, after considering the relevant circumstances, he concludes that there are no grounds for returning the case to the prosecutor.

4. Part two of this article provides for the re-referral by the prosecutor of a criminal case to the court for consideration in conciliation proceedings if the parties have concluded a new procedural agreement on the admission of guilt in accordance with a court decision on the qualification of a crime, the size of a civil claim, the type or amount of punishment. If the parties have not concluded a new procedural agreement, the completion of the proceedings in the case shall be carried out in accordance with the general procedure provided for by this Code.

5. Part three of this article establishes the court's right to express its disagreement with the new procedural agreement, which was concluded by the parties after the court returned the case to the first procedural agreement due to disagreement with the qualification of the crime, the size of the civil claim, the type or amount of punishment.

If the judge does not agree with the new procedural agreement on admission of guilt, he also conducts a preliminary hearing of the case and, following its results, issues a decision to refuse to consider the case in conciliation proceedings and sends the case to the prosecutor for the general procedure.

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

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