Commentary on Article 127. Prejudice (Prejudicial Effect) of the Criminal Procedure Code of the Republic of Kazakhstan
1. A judgment that has entered into legal force, as well as any other court decision in a criminal case that resolves the case on its merits, shall be binding on all state bodies, individuals and legal entities with regard to both the circumstances established therein and their legal assessment in relation to the person against whom they were issued. This provision shall not preclude the review, annulment or amendment of a judgment or other court decisions under the cassation procedure or on the basis of newly discovered circumstances.
2. A court decision in a civil case that has entered into legal force shall be binding on the body conducting the criminal proceedings when conducting a pre-trial investigation or in criminal proceedings only with regard to the question of whether the event or act itself took place, and shall not predetermine conclusions as to the guilt or innocence of the defendant.
3. A court judgment that has entered into legal force and recognizes the right to have a claim satisfied shall be binding in this respect on the court when it considers a civil case.
4. A resolution of a criminal prosecution body shall not have binding force on a court, except for a resolution terminating criminal prosecution on the same suspicion.
Footnote. Article 127 was amended by Law of the Republic of Kazakhstan No. 378-V dated 31 October 2015 (shall enter into force on 1 January 2016).
Prejudice (prejudicial effect) is a rule and an objective legal status that applies exclusively to final judicial decisions in criminal cases. As a general rule, all court decisions become binding on individuals and legal entities upon entering into legal force; that is, they may not be called into question or challenged, except in cases of their review under the cassation procedure or the reopening of a case on the basis of newly discovered circumstances (Part 1 of Article 127 of the CPC). The purpose of prejudice is to ensure the principles of justice established by the Constitution and the CPC, guarantee the stability of judgments and court rulings, prevent their endless reconsideration, and increase public confidence in the legal force of judicial decisions (see also the commentary on the provisions of Article 22 of the CPC).
At the same time, differences in the subject matter of legal regulation under the Civil Procedure Code and the Criminal Procedure Code allow criminal proceedings to be conducted against persons in criminal cases where court decisions have previously been adopted in civil proceedings concerning similar events or acts involving them. That is, a decision on a person's guilt or innocence, together with the adoption of the relevant procedural decision, may be made only following proceedings in a criminal case; this is the exclusive prerogative of criminal proceedings (Parts 2–3 of Article 127 of the CPC). Likewise, the recognition by a court judgment in a criminal case of the right to have a claim satisfied and the referral of the issue of its amount for consideration by a court under civil proceedings, as one of the possible decisions within the framework of a criminal case, shall be binding on the court considering claims arising from the materials of the criminal case under the civil procedure (Part 3 of Article 170 of the CPC).
Conversely, a decision on a civil claim previously adopted under civil proceedings constitutes grounds preventing the filing, during criminal proceedings, of the same claim against the same persons on the same grounds (Part 4 of Article 166 of the CPC).
The above provisions are closely interconnected with the requirements of the provisions of the Civil Procedure Code of the Republic of Kazakhstan and the clarifications of the Supreme Court of the Republic of Kazakhstan on these issues.
Thus, according to the Civil Procedure Code of the Republic of Kazakhstan, a court judgment in a criminal case that has entered into legal force and recognizes the right to have a claim satisfied shall be binding on the court considering a case concerning the civil-law consequences of the acts of the person against whom the court judgment was rendered. A court judgment that has entered into legal force shall also be binding on the court considering such a civil case with regard to whether those acts took place and whether they were committed by that person, as well as with regard to other circumstances established by the judgment and their legal assessment (Part 3 of Article 76 of the CPC). Furthermore, the civil-law consequences of an act committed by a person released from criminal liability on the grounds provided for in subparagraphs 3, 4, 9, 10, 11 and 12 of Part 1 of Article 35 and Article 36 of the Criminal Procedure Code of the Republic of Kazakhstan shall not be subject to re-proof when a claim is filed under civil proceedings (Part 4 of Article 76 of the CPC).
The same position is reflected in Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan dated 11 July 2003, “On the Court Judgment”: “By virtue of Article 76 of the CPC, a court judgment in a criminal case that has entered into legal force and recognizes the right to have a claim satisfied shall be binding on the court considering a case concerning the civil-law consequences of the acts of the person against whom the judgment was rendered. In addition, such a judgment has prejudicial effect with regard to the following issues: whether those acts took place and whether they were committed by that person, as well as with regard to other circumstances established by the judgment and their legal assessment. A court considering a claim arising from such a criminal case shall not have the right to discuss the defendant's guilt; however, it shall have the right to set out, in the reasoning part of its decision, the evidence available in the civil case substantiating the amount of the awarded sum (for example, taking into account the defendant's financial situation or the victim's fault). Circumstances established by a court decision that has entered into legal force in a previously considered civil case shall be binding on the court and shall not be subject to re-proof when considering other civil cases, provided that the same persons participate in those cases (paragraph 13).
The assignment by the Constitution and the provisions of the CPC of the function of administering justice exclusively to courts precludes the prejudicial effect of resolutions adopted by criminal prosecution bodies in criminal cases, which may be appealed directly to courts and annulled by them (see the commentary on the provisions of Articles 10, 11, 12, 19, 21–24, 31 and 106 of the CPC). In this regard, procedural decisions of criminal prosecution bodies (with certain exceptions) are distinguished by a certain degree of instability (Part 4 of Article 127 of the CPC).
Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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