Commentary on Article 31. Freedom to Appeal Procedural Actions and Decisions of the Criminal Procedure Code of the Republic of Kazakhstan
1. Actions and decisions of the court and the criminal prosecution authority may be appealed in accordance with the procedure established by this Code.
2. Every convicted person and acquitted person shall have the right to have the judgment reviewed by a higher court in accordance with the procedure established by this Code.
3. It shall not be permitted to consider an appeal to the detriment of the person who filed the appeal or in whose interests the appeal was filed.
The provisions of Article 31 express democratic principles in the essence of the administration of justice in criminal cases and do not restrict the right of participants in criminal proceedings to appeal procedural actions and decisions of the bodies conducting criminal proceedings. This represents the legislator's response to the objectively strict nature of criminal proceedings, which is characterized by certain restrictions on the rights and freedoms of individuals and citizens during proceedings in a case and is often accompanied by violations of individual rights. It should be assumed that this is precisely why criminal proceedings are saturated with departmental oversight, prosecutorial supervision and judicial oversight of the activities of bodies and officials conducting criminal proceedings during pre-trial investigations.
Given the relevance of this issue, the CPC establishes a system of provisions governing appeals against the actions and decisions of state bodies and officials conducting proceedings in a case (see Articles 1, 99–108).
3. As a general rule, complaints against the actions and decisions of bodies conducting criminal proceedings may be filed throughout the entire proceedings in a case, at any stage thereof. However, final procedural decisions in a case may be reviewed within the relevant time limits (Article 102 of the CPC). In the latter case, the legislator's concern for preserving the stability of procedural decisions in a case and preventing a situation in which they are subject to endless review, particularly judicial decisions, is evident. In addition to the time limits, the “review” of a judgment or other court ruling that has not entered into legal force is also restricted by grounds that are as exhaustive as possible and by the expression of the parties' will (Articles 415, 418, 424 of the CPC).
The completion of proceedings in a case upon a judgment or ruling entering into legal force does not deprive a convicted person of the right to have the judicial decision reviewed in their favour through cassation proceedings (Chapter 52 of the CPC) or on the basis of newly discovered circumstances (Chapter 53 of the CPC). Moreover, all convicted persons (including those serving their sentences) have the right to petition for a pardon or mitigation of their punishment. The President of the country is vested with the power to grant pardons and, consequently, to mitigate punishments. The Head of State is vested with such authority under the Constitution (subparagraph 15 of Article 44), and such authority objectively cannot be vested in a court (see Decree of the President of the Republic of Kazakhstan No. 140 dated July 5, 2006, “On the Commission on Pardon Issues under the President of the Republic of Kazakhstan”). An act of pardon in respect of an individually identified person whose conviction has entered into legal force, as well as a person serving or having served within the territory of the Republic of Kazakhstan a sentence imposed by a judgment of a foreign state's court, shall be issued by the President of the Republic of Kazakhstan. Upon the granting of a pardon, a person convicted of a crime may be released from further serving the sentence, or the sentence imposed on them may be reduced or replaced with a more lenient type of punishment, or such person may be released from an additional type of punishment. A person who has served their sentence or has been released from further serving it may have their criminal record expunged by an act of pardon (Parts 3 and 4 of Article 78 of the Criminal Code).
For example, if a defendant is sentenced to the exceptional punishment of the death penalty, the presiding judge shall explain to them the right to petition for a pardon (Part 4 of Article 402 of the CPC). By way of pardon, the death penalty may be commuted to life imprisonment or imprisonment for a fixed term, with the sentence to be served in an institution of the criminal executive system of extraordinary security (Part 5 of Article 47 of the Criminal Code). Courts are also vested with extensive powers to mitigate criminal punishment at the stage of enforcement of judicial decisions (Articles 470–483 of the CPC).
The regulation of the general procedure for considering complaints and the procedure for considering complaints against the actions of officials of bodies conducting criminal proceedings undoubtedly contributes to the fullest possible satisfaction of the rights and legitimate interests of participants in criminal proceedings. Furthermore, the possibility of appealing procedural actions and decisions of an inquirer or investigator directly to the management of the law enforcement agency, to the prosecutor's office at the location of the pre-trial investigation body, to the investigating judge at the location of the prosecutor's office, and to higher judicial instances constitutes a real means of preventing situations in which the very fact of filing a complaint in a case results in adverse consequences for the applicant.
Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan. Author: 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.
Constitution Law Code Regulatory Act Decree Order Decision Resolution Lawyer Almaty Lawyer Legal Services Legal Consultation Civil Criminal Administrative Cases and Disputes Defence Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Programme Charter Statute Charter Article Commentary Resolution Regulations Protocol Draft Programme Rules Addresses
