Commentary on Article 43. Joinder of Criminal Cases of the Criminal Procedure Code of the Republic of Kazakhstan
1. Criminal cases against several persons who have committed one or more criminal offenses in complicity, cases against a person who has committed several criminal offenses, as well as cases against a person suspected or accused of prior unpromised concealment of these same crimes or failure to report them may be joined in one set of proceedings.
2. Joinder of criminal cases is also permitted in cases where the suspect has not been identified, but there are sufficient grounds to believe that several criminal offenses were committed by the same person or group of persons.
3. Criminal cases shall be joined on the basis of a resolution issued by the body conducting the criminal proceedings. A copy of the resolution issued by the criminal prosecution body shall be sent to the prosecutor and the defense within twenty-four hours.
4. The following shall not be joined in one set of proceedings:
1) identical suspicions or charges against different persons;
2) suspicions or charges against persons who are alleged to have committed criminal offenses against each other, except in cases where a private prosecution case is being considered;
3) cases in which criminal prosecution is carried out under private prosecution procedure in one case and under public prosecution procedure in the other;
4) all other suspicions or charges whose joint consideration may impede the objective examination of the case.
5. The period of proceedings in a case in which several cases have been joined shall be calculated from the date on which proceedings were commenced in the criminal case initiated first in chronological order. If, in respect of one of the joined cases, detention or house arrest has been applied as a preventive measure, the investigation period shall be calculated from the date of commencement of the pre-trial investigation in the case in which the specified preventive measures were applied.
6. Persons shall have the rights of participants in criminal proceedings only in respect of those joined cases that concern them.
The joinder of criminal cases is an independent institution of criminal procedure, and the effective performance of the tasks and principles of criminal proceedings depends on the legality and validity of the application of its rules. First and foremost, the law permits the joinder of criminal cases only before the commencement of the main court hearing (Part 1 of Article 321 of the CPC). This does not fall within the competence of the court adjudicating the criminal case on its merits, since doing so may constitute an indication of a gross deviation from the tasks, principles, and separation of the principal functions of criminal proceedings. Therefore, if, during the main court hearing, it becomes necessary to join the case under consideration with another criminal case or to bring other persons to criminal liability, where their actions are connected with the case under consideration and separate consideration of the case against the newly identified persons is impossible, the court, upon a motion by the prosecution, taking into account the opinions of the other participants in the proceedings, interrupts the consideration of the case and conducts a preliminary hearing. When cases are joined at the preliminary hearing, the court shall grant the prosecutor time to prepare a new indictment (Parts 3–4 of Article 340 of the CPC).
As practice demonstrates, the institution of joinder of cases is more characteristic of pre-trial investigation. This is a very real practical situation that arises during the investigation of criminal cases or when a criminal case is being prepared for a court hearing, and its purpose is to ensure a comprehensive, complete, and objective examination of the circumstances of the criminal offense committed. The point is that different criminal cases arising at different times and even in different locations, sometimes simultaneously, but possessing certain criminal-law or criminal-procedural characteristics that make it possible to join them into a single set of proceedings, may be combined in one set of proceedings.
Part 1 of the article under commentary establishes the general rules permitting criminal cases to be joined in one set of proceedings. For example, this applies where the same person or group of persons acting in complicity commits several criminal offenses provided for, as a rule, by the same article or part of an article of the Special Part of the Criminal Code (repeated criminal offenses, paragraph 1 of Article 12 of the Criminal Code), such as a series of thefts of another person's property, or commits two or more acts provided for by different articles or parts of articles of the Special Part of the Criminal Code (aggregation of criminal offenses, paragraph 1 of Article 13 of the Criminal Code), such as initially committing robbery and, some time later, stealing items of particular value. In addition, under this general rule, cases involving charges against several persons for committing one crime in complicity may also be joined in one set of proceedings. The concept of complicity includes such forms as a group of persons, a group of persons acting by prior conspiracy, an organized group, a criminal organization, a criminal community, a transnational organized group, a transnational criminal organization, a transnational criminal community, a terrorist group, an extremist group, a gang, or an illegal paramilitary formation (Article 31 of the Criminal Code).
- At the same time, together with the above-mentioned cases, cases against persons who are not considered accomplices but are accused of prior unpromised concealment of these same crimes or failure to report them may also be joined in one set of proceedings on the basis of the investigative jurisdiction arising from the connection between criminal cases. In this regard, prior unpromised concealment constitutes a criminal offense where a person conceals a corruption-related, serious, or particularly serious crime, or a crime against the sexual inviolability of a minor. However, such a person shall not be subject to criminal liability for prior unpromised concealment of a crime committed by their spouse or close relative (Article 432 of the Criminal Code). Failure to report a crime constitutes a criminal offense where it concerns reliable information about a planned or committed serious crime against the sexual inviolability of a minor, a particularly serious crime, or reliable information about a planned act of terrorism. At the same time, a spouse or close relative of the person who committed the crime shall not be subject to criminal liability for failure to report it, nor shall clergy members be subject to such liability for failure to report crimes committed by persons who entrusted them with such information during confession (Article 434 of the Criminal Code).
The specific features of pre-trial investigation are taken into account in Part 2 of Article 43 of the CPC, which concerns the possibility of joining criminal cases involving criminal offenses where the perpetrator has not been identified, provided that there are sufficient grounds for doing so arising from the presence of consistent and recurring characteristics of the object and the objective elements of the act in such cases (serial offenses of the same type, a distinctive “criminal modus operandi” in their commission, etc.).
Article 43 of the CPC also regulates cases in which the joinder of criminal cases is expressly prohibited (Part 4), namely, cases involving identical suspicions or charges against different persons. For example, officials of the same state body, in the absence of complicity between them, receive money from a bribe-giver for actions performed in the latter's favor. In this regard, the legislator proceeds from the premise that, in such cases, the degree of guilt of these persons differs substantially and that such externally identical charges cannot be the subject matter of a single criminal case.
Furthermore, the rules set out in subparagraph 2) of Part 2 of Article 43 of the CPC categorically prohibit joining in one set of proceedings criminal cases in which persons suspect or accuse each other of committing criminal offenses. At the same time, these rules (subparagraph 2) of Part 2 of Article 43 of the CPC) do not apply to cases in which a defendant in a private prosecution case brings a countercharge against the private prosecutor (victim), provided that it is connected with the subject matter of the criminally punishable act in respect of which the proceedings were initiated. In such cases, the charge and the countercharge must be resolved simultaneously (Part 8 of Article 390 of the CPC), meaning that a complaint in a private prosecution case may be considered (joined) in one set of proceedings together with the consideration of a countercomplaint. Such joinder shall be carried out by a judge's resolution before the commencement of the judicial investigation. When complaints are joined in one set of proceedings, the persons who filed them participate in the proceedings simultaneously as private prosecutors and defendants. In order to prepare a defense in connection with the receipt of a countercomplaint and the joinder of proceedings, the case may, upon a motion by the person against whom the countercomplaint has been filed, be adjourned for a period not exceeding three days. These persons shall be examined regarding the circumstances set out in their complaints in accordance with the rules governing the examination of a victim, and regarding the circumstances set out in the countercomplaints in accordance with the rules governing the examination of a defendant (Part 3 of Article 411 of the CPC).
In contrast to the above, there are situations in which the joinder in one set of proceedings of cases involving private prosecution (Part 2 of Article 32 of the CPC) and public prosecution (Part 6 of Article 32 of the CPC) is expressly prohibited, since entirely different procedural regimes for conducting such cases, as well as different bodies conducting criminal proceedings, are предусмотрены.
Thus, in each specific case involving the possible joinder of criminal cases in one set of proceedings (the list of both permitted and prohibited cases in this respect is not exhaustive), it is necessary to proceed from the consideration, as indicated in subparagraph 4) of Part 4 of Article 43 of the CPC, of the extent to which such joinder will make it possible to conduct a complete, comprehensive, and objective examination of all the circumstances of the criminal cases being joined and ensure effective protection of the rights of participants in criminal proceedings, rather than being guided by short-term considerations of procedural economy.
The joinder of criminal cases, being a decision made by an inquiry officer, investigator, or court when preparing a case for a hearing, like any procedural decision, shall be formalized in the form of a resolution and must be reasoned (comply with the provisions of the CPC and the evidence available in the criminal cases). The reasonableness of the joinder of criminal cases is subject to prosecutorial supervision during the pre-trial investigation of the criminal case, which entails the mandatory submission of a copy of the resolution to the prosecutor and the defense within twenty-four hours (Part 3 of Article 43 of the CPC). This decision may be revoked by the prosecutor or appealed by the defense to the prosecutor or the investigating judge (Articles 105–106 of the CPC).
A separate ground is the joinder in one set of proceedings of cases involving charges against one or several persons for committing criminal offenses falling within the investigative jurisdiction of different preliminary investigation authorities. In such cases, the investigative jurisdiction shall be determined by the prosecutor (Part 8 of Article 187 of the CPC).
The rule governing the calculation of the period of proceedings in a joined case from the date on which proceedings commenced in the joined criminal case in which detention or house arrest was applied as a preventive measure (Part 5 of Article 43 of the CPC) should be explained by the need to protect the rights and legitimate interests of a detained suspect or accused person. In turn, the general rule for calculating the investigation period in a joined case in which the above-mentioned preventive measures were not applied serves the interests of the pre-trial investigation (but not its undue delay): the period shall be calculated from the date on which proceedings commenced in the criminal case initiated first in chronological order.
The scope of the procedural legal capacity of participants in joined proceedings has its own specific features: it cannot exceed the scope of rights they possessed before the criminal cases were joined (Part 6 of Article 43 of the CPC). However, this scope may change as the procedural status of a participant in the proceedings changes when the criminal case moves to the next stage of criminal proceedings.
Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishovich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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