Commentary on Article 50. Consequences of Missing a Time Limit and the Procedure for Its Restoration of the Criminal Procedure Code of the Republic of Kazakhstan

1. Procedural actions performed by participants in criminal proceedings after the expiry of the time limit shall be deemed invalid.

2. Upon the motion of an interested person, a time limit missed for a valid reason may be restored by a ruling of the inquiry officer, investigator, prosecutor or judge in whose proceedings the case is pending. In this regard, the time limit shall be restored for the person who missed it, but not for other persons, unless otherwise provided for in the relevant decision of the body conducting the criminal proceedings.

3. Upon the motion of an interested person, the execution of a decision appealed after the expiry of the prescribed time limit may be suspended until the issue of restoration of the missed time limit has been resolved.

4. A refusal to restore a time limit may be appealed and reviewed upon the motion of the prosecutor in the manner prescribed by this Code.

Footnote. Article 50 was amended by Law of the Republic of Kazakhstan dated 11 July 2017 No. 91-VI (shall enter into force upon the expiry of ten calendar days after the date of its first official publication).

The provision of Part 1 of Article 50 of the CPC is a general rule addressed to all participants in criminal proceedings, requiring them to strictly observe procedural time limits at all stages of criminal proceedings, including when conducting procedural actions and adopting procedural decisions, and exercising their legal capacity and capacity to act. Violation of the procedure, including the time limits for conducting a procedural action, is regarded as a substantial violation of the provisions of the CPC and entails the inadmissibility of factual data as evidence in criminal cases (subparagraph 5) of Part 1 of Article 112 of the CPC). Evidence obtained in this manner may not be used as the basis for the accusation or used in proving any of the circumstances specified in Article 113 of the CPC (Part 4 of Article 112 of the CPC).

In this regard, the law obliges the bodies conducting criminal proceedings to explain to every person participating in criminal case proceedings the rights vested in them and the duties imposed upon them, and to ensure the possibility of exercising those rights. This includes a clear and comprehensive explanation of the person's rights and duties, the legal consequences of the position they have chosen, as well as an explanation of the significance of the procedural actions taking place with their participation and the contents of the materials of the criminal case provided to them for familiarisation. Moreover, at the request of the person, the body conducting the criminal proceedings is obliged to explain their rights and duties again (Article 110 of the CPC). Without any doubt, an advocate acting as defence counsel or as a representative of the relevant party in the criminal case occupies an important place in this process.

The wording of the provisions of Article 50 of the CPC contains the expression “interested person”, upon whose motion a time limit missed for a valid reason may be restored by the bodies conducting criminal proceedings, or who may appeal or protest against a refusal to restore the time limit. The list of interested persons is quite broad, but it is also regulated by the provisions of the CPC with regard to the composition of the prosecution and defence parties or participants in the proceedings protecting their own rights and interests or those of the persons they represent (Articles 7, 23, 58, 64—77 of the CPC). The circle of persons entitled to appeal or protest against judicial decisions in criminal cases under the appellate and cassation procedures, which is associated with compliance with certain procedural time limits, is also specified by the provisions of the CPC (Article 414, Part 3 of Article 448, Article 486).

3. Restoration of missed procedural time limits within the meaning of the provisions of Article 50 of the CPC is an issue characteristic of judicial stages and is not particularly pronounced during pre-trial investigations of criminal cases. Let us explain the operation of these provisions using examples from judicial stages. As a rule, the timely filing of an appellate (interlocutory) complaint and the submission of a prosecutor's motion suspend the entry into legal force and enforcement of a judgment or ruling, except for a decision concerning a preventive measure (Part 1 of Article 421 of the CPC). Therefore, every complaint and prosecutor's motion received by the court of first instance must be immediately registered, indicating the date of receipt, as required by the Supreme Court. A complaint or motion submitted after the expiry of the time limit specified in Article 418 of the CPC, in the absence of a motion for its restoration, shall be returned with an indication of this ground. The court of first instance shall issue a ruling to this effect, which shall be sent to the author with an explanation of the procedure and time limit for appealing against it or submitting a motion (Regulatory Resolution of the Supreme Court dated 19 December 2003 No. 13 “On the Practice of Consideration of Criminal Cases under the Appellate Procedure”, paragraph 2).

Moreover, if, after the court of first instance has accepted a complaint or a prosecutor's motion, the fact that the time limit for their submission was missed is established by the appellate instance, the judge of the appellate instance shall, by their ruling, leave them without consideration (Part 3 of Article 418 of the CPC). In general, with regard to appellate proceedings, time limits missed for various valid reasons, including shortcomings on the part of the court of first instance (untimely preparation of the minutes of the court hearing, delivery of a copy of the judicial act to a person participating in the case who does not speak the language of the proceedings without a translation, inaccuracies in specifying the time limit for appeal in the operative part of the judicial act (Part 3 of Article 419 of the CPC)), may be restored by the court that rendered the judgment or issued the ruling, upon an application by persons entitled to file a complaint or a prosecutor's motion. A judge's ruling refusing to restore a missed time limit may be appealed or reviewed upon the motion of the prosecutor by the relevant regional or equivalent court (appellate court), which is entitled to restore the missed time limit and consider the case upon the complaint or prosecutor's motion (Articles 419—421 of the CPC).

On this important issue for participants in criminal proceedings, the Supreme Court drew the attention of the courts of first instance and appellate courts to the fact that, firstly, appellate proceedings constitute one of the procedural forms of exercising the right to freely appeal procedural actions and decisions, enshrined in Article 31 of the CPC; and, secondly, when considering motions for restoration of the time limit for appellate appeal and complaints and motions against rulings refusing to restore a missed time limit, courts must eliminate cases of unjustified refusals (relevant paragraphs of the Regulatory Resolution of the Supreme Court dated 19 December 2003 No. 13 “On the Practice of Consideration of Criminal Cases under the Appellate Procedure”).

Another example. A cassation complaint, protest or submission shall be returned to the persons who filed them if they were submitted after the expiry of the time limit specified in Part 2 of Article 487 of the CPC (subparagraph 3) of Part 1 of Article 489 of the CPC). Under the cassation procedure, certain procedural time limits cannot be restored. For example, a motion, protest or submission for review under the cassation procedure of an acquittal that has entered into legal force, a conviction on the grounds of the need to apply the law on a more serious criminal offence, leniency of the punishment or on other grounds entailing an aggravation of the convicted person's position, or a court ruling terminating the case, may be filed within one year from the date on which they entered into legal force (Part 2 of Article 487 of the CPC).

Thus, failure by participants in criminal proceedings to comply with time limits in the field of appellate and cassation proceedings generally precludes the review of judicial decisions on grounds that worsen the position of the convicted person or the acquitted person.

An important clarification is contained in the provision of Part 3 of Article 50 of the CPC. However, this is not always possible, since, as we have already noted, not all procedural time limits may be restored; consequently, the suspension of the execution of a decision appealed after the expiry of the prescribed time limit is also excluded in such cases.

The provision of Article 493 of the CPC should be regarded as having significant potential for the protection of human rights. Under the existing procedure, the filing of a motion or the submission of a protest or submission concerning judicial decisions that have entered into legal force does not, as a rule, suspend their execution (Part 4 of Article 488 of the CPC). At the same time, the Chairperson of the Supreme Court and the Prosecutor General (only they, and no one else) are entitled, simultaneously with requesting the case file, both where there is a motion to this effect from a participant in the proceedings and in the absence of such a motion, to suspend, in whole or in part, by a reasoned ruling, the execution of a judgment or court ruling for a period not exceeding three months, for the purpose of reviewing it under the cassation procedure on the grounds specified by law (Parts 2—4 of Article 484, Article 493 of the CPC).

A reasoned ruling on the suspension of the execution of a judgment or ruling, the review of which has been requested by means of a motion or protest, must be issued by the Chairperson of the Supreme Court or the Prosecutor General, specifying therein the period of suspension, and must be immediately sent to the relevant authorities for execution. Suspension of the execution of a judgment or court ruling that has entered into legal force on the grounds specified in Article 493 of the CPC is permitted simultaneously with the requesting of the case file and may continue until the cassation motion, protest or submission is considered, but for no more than three months. After that, the ruling suspending the execution of the judicial decisions in respect of which a motion has been filed or a protest has been submitted shall cease to have effect. An acquittal or a ruling terminating the case may not be suspended. The grounds for suspending the execution of a judgment or ruling, the review of which has been requested by means of a motion or protest, may be related both to the convicted persons themselves, for example, the execution of a judgment imposing life imprisonment or the death penalty, or the execution of a judgment where the convicted person has a serious illness, and to the convicted person's close relatives, where the execution of the judgment may have a negative impact on them. The grounds for suspending the execution of a judgment or ruling, the review of which has been requested by means of a motion or protest, must be confirmed by duly executed documents. When the execution of a judgment is suspended, the application of the punishment imposed by the court shall be postponed (paragraph 12 of the Regulatory Resolution of the Plenum of the Supreme Court dated 29 June 2017 No. 5 “On the Procedure for Proceedings in Criminal Cases before the Court of Cassation”).

Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan by Marat 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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