Comment to article 636. Features of the preliminary hearing The Criminal Procedure Code of the Republic of Kazakhstan

The preliminary hearing is conducted solely by the judge with the obligatory participation of the defendants, including those who do not have the right to have the case heard with the participation of jurors and their defenders.

At the beginning of the court session, the judge announces which case is to be considered, introduces himself to the persons present at the meeting, informs them who is the public prosecutor, defense attorney, secretary, finds out the identity of the defendant, resolves the stated challenges. The Public Prosecutor announces the indictment. The judge finds out whether the defendant understands the charge, explains to him the essence of the charge, if necessary, and asks if he confirms his request for his case to be considered by a jury. If a motion for a trial by jury has not been filed, the judge explains to the defendant that it can be filed directly at this court session. The defendant's oral petition is entered in the minutes of the court session, and the written petition is attached to the case. The defendant's refusal to file a motion for a trial by jury, as well as his unwillingness to file such a motion, are reflected in the minutes of the court session or the defendant's written statement, which is attached to the case.

If the defendant has confirmed his request for the trial of his case by a jury, the judge decides to grant this request, while the opinion of the other defendants is not taken into account, and proceeds to consider other petitions filed by the public prosecutor, the victim, the defendant and his defense counsel.

If necessary, the case materials may be read out at the preliminary hearing to verify their admissibility as evidence.

If the defendant has not confirmed his request for the trial of his case by a court with the participation of jurors, in the absence of other grounds provided for in the first part of Article 321 of this Code, the judge shall declare the preliminary hearing over. Further proceedings on the case shall be conducted according to the rules provided for in Chapter 42 of this Code.

The judge's decision on the consideration of the case by a court with the participation of jurors is final. In the future, the decision cannot be reviewed due to a change in the position of the defendants.

1. A number of special features include the holding of a preliminary hearing in a case in which the accused filed a motion during the preliminary investigation to have his case heard by a court with the participation of jurors. This is more of an organizational and administrative judicial stage, where the final decision on the satisfaction of the defendant's petition is mainly made, as well as other important issues of the effective conduct of the main trial by the court with the participation of jurors are resolved. For example, it is during the preliminary hearing that, based on the results of the announcement of the case materials and verification of the sources of evidence, those that cannot be considered admissible as evidence are excluded from the case file as obtained contrary to the procedure established by the CPC (see: commentary to the norms of Article 112 of the CPC).

2. The preliminary hearing is conducted by the judge alone in accordance with the rules of Articles 321, 636 of the CPC, with the mandatory participation of the defendant, his defense counsel, the public prosecutor and the secretary of the court session. Keeping the minutes of the court session is mandatory.

3. During the court session, in order to clarify and confirm the charges brought against the defendant for committing a crime for which the death penalty may be imposed, and which, accordingly, may be the subject of a trial with the participation of jurors, it is mandatory for the public prosecutor to announce the operative part of the indictment.

The further course of the court session depends on whether or not the defendant confirms his request for the trial of his case by a jury, stated by him at the preliminary investigation.

If the defendant refuses to consider the case by a court with the participation of jurors, as well as there are no grounds for suspending the proceedings, terminating the case, or returning the case for additional investigation, the judge shall order the appointment of the main trial.

When the defendant confirms his request for a trial by a court with the participation of jurors, the judge resolves other issues related to the appointment of the main trial, which will be conducted by a court with the participation of jurors.

During the preliminary hearing, the defendant has the right to request the conclusion of a procedural agreement. In this case, the court grants him and the prosecutor time to discuss the matter.

4. The decision on the appointment of the main trial must contain decisions on the issues that were discussed during the preliminary hearing (see: commentary to the norms of Article 322 of the CPC).

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

Code of Criminal Procedure, Criminal Code, Comments to the Code of Criminal Procedure, Normative resolution of the Supreme Court, Criminal legislation, Normative legal acts of the Republic of Kazakhstan

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