Commentary to article 319. Actions of the court on the received criminal case The Criminal Procedure Code of the Republic of Kazakhstan
When a criminal case is brought to court, the chairman of the court or another judge, on his behalf, resolves the issue of accepting the case for trial.
The judge of the received case makes one of the following decisions on:
1) the appointment of the main trial in a general or abbreviated manner;
2) conducting a preliminary hearing of the case.
The judge makes a decision on the case in the form of a ruling, which must specify:
1) the time and place of the ruling;
2) the position and surname of the judge who issued the ruling;
3) the grounds and substance of the decisions taken.
The decision must be made no later than five days after the case is submitted to the court.
At the same time as issuing the decision, the judge is obliged to consider the question of the validity of the application or non-application of a preventive measure to the accused and the validity or unreasonableness of its type, if the preventive measure is chosen, to extend the period of application of the preventive measure if it has expired by that time.
1. After the case is submitted to the court, the issues related to the preparation for it must be resolved and the necessary preparatory actions performed.
The preparation of a case for trial is a mandatory stage that determines the further movement of the criminal case, which establishes the grounds for the appointment of a preliminary hearing or the appointment of the main trial. The adoption of one of these decisions is preceded by a thorough study of the criminal case.
Therefore, before the start of the trial, the case must necessarily be reviewed by a judge in order to clarify questions about the sufficiency of materials for consideration by the court, and the absence of grounds preventing its consideration in court. Preparatory actions can be divided into two parts: the first part is the verification of pre-trial materials and the second part is the preparation for the consideration of the case in court.
2. A judge may make only one of the two decisions specified in Part 2 of Article 319 of the CPC. The decision must be made in the form of a resolution no later than five days after the case is submitted to the court, and not from the moment the case is submitted to the judge. The term is calculated in accordance with the requirements of art. 48 part 2 of the CPC without calculating the days that the term begins.
3. The day of receipt of the case in court is not included in the deadline for making a decision on the received criminal case. When calculating the time limit, non-working hours are also included. If the end of the term falls on a non-working day, then the last day of the term is considered to be the first working day following it.
Only after establishing that there are no legal obstacles to the reasoned appointment of a trial on the basis of the indictment, without prejudging the question of guilt, the judge makes a decision on the appointment of the main trial.
The judge has the right to make a decision on holding a preliminary hearing in any case that has been received, when it is necessary to investigate procedurally significant issues (including the return of the criminal case to the prosecutor, the suspension or termination of proceedings in the case), provided for in art.321 CPC. It should be noted that in cases of particularly serious crimes, the legislator obliges the court to hold a preliminary hearing.
In addition, the judge is obliged to determine the order of the main trial in the case under consideration: in a general or abbreviated manner.
5. In cases provided for in Article 382 of the CPC, in cases of crimes, with the exception of particularly serious ones, when there is no dispute about the proof of guilt, the amount of compensation for damage, there have been no violations of the rights of participants in the process, as well as during accelerated pre-trial proceedings, the conclusion of a procedural agreement or agreement to achieve reconciliation through mediation, A shortened procedure for the trial is being carried out, which must be completed within ten days. In exceptional cases, it is allowed to extend the shortened trial by a reasoned decision of the judge for up to twenty days.
6. In the decision that forms out the judge's decision on a criminal case that has been submitted to the court, three parts are traditionally distinguished: introductory, descriptive and resolute. The judge's decision in the introductory part should contain information about the time and place of the decision, the name of the court and the judge's surname, the descriptive and motivational part should provide the justification for the appointment of the main trial in full or in an abbreviated manner, or the appointment of a preliminary hearing, the correctness of the application or non-application of a preventive measure to the accused, changes in its type, if the term of the preventive measure has expired, then decide on the expediency of extending it., The operative part of the resolution should set out the substance of the decision taken to appoint the case for consideration, election, amendment, cancellation, extension of the preventive measure, indicating the time and place of the court session, summoning the relevant participants in the process. The accused, the defender, the victim and the prosecutor are notified of the decision. The decision on the appointment of the main trial must comply with the requirements of art.322 of the CPC.
The text of the ruling may not be worded in terms that violate the principle of the presumption of innocence. The decision on the appointment of the main trial or the appointment of a preliminary hearing is not subject to appeal, however, objections to it may be included in the appeal of judicial acts in this case.
Preparatory actions are intermediate between pre-trial proceedings and judicial proceedings, since they are of a verification nature in relation to pre-trial proceedings and preparatory in relation to judicial proceedings.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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