Commentary to article 320. Issues to be clarified in the case submitted to the court The Criminal Procedure Code of the Republic of Kazakhstan

1 When deciding on the possibility of appointing a court session, a judge must clarify the following in relation to each of the defendants:

1) is the case within the jurisdiction of this court;

2) are there any circumstances leading to the termination or suspension of the proceedings in the case;

3) during the pre-trial investigation, accelerated pre-trial investigation, conclusion of a procedural agreement, agreement on reconciliation through mediation, violations of the criminal procedure law preventing the appointment of a court session;

4) has a copy of the indictment been served;

5) is the measure of restraint chosen by the accused subject to change or cancellation or the extension of the period of its application?;

6) have measures been taken to ensure compensation for damage caused by a criminal offense and possible confiscation of property;

7) whether there are applications and petitions.

1. A judge, assessing the results of the pre-trial proceedings, the evidence gathered and the conclusions of the case from the point of view of the presence or absence of factual and legal grounds for judicial review of the case, before appointing the main trial, is obliged to find out whether there are grounds preventing the appointment of a court session. The legislator has provided a list of issues to be clarified.

2. The establishment of the correct jurisdiction decides the further direction of the criminal case, since if the received case is not beyond the jurisdiction of this court, the court is obliged to send the case under the jurisdiction to another court.

The jurisdiction of criminal cases is determined by the following main criteria: by the qualification of the crime; by the territorial attribute; by the subject of the crime, by the combined cases, by judicial instances.

The general jurisdiction is determined by the territorial basis of the place of commission of the crime.

According to the qualification of a crime, the jurisdiction of specialized inter-district criminal courts is determined, which include criminal cases of particularly serious crimes.   The jurisdiction of a criminal case, depending on the subject, determines the consideration of cases by the courts in relation to military personnel and minors. When criminal cases are combined, jurisdiction is determined at the place of completion of the investigation, which is the place where the indictment was drawn up or the decision was made to send the case to court for the application of compulsory medical measures.  At the same time, in the case of a combination of cases, among which at least one is particularly serious, the case should be considered by a specialized interdistrict criminal court, in the case of minor accomplices in combined cases – by a specialized juvenile court, if there are no military personnel among them. Cases against military personnel are considered by the military court of the garrison. The jurisdiction of the instances is related to the review of judicial acts by the appellate, cassation and supervisory authorities. Disputes about jurisdiction between courts are resolved by a higher court, whose decision is final and cannot be appealed. The legislator also provides for the transfer by a higher court of a criminal case from the court under its jurisdiction to another court before the start of consideration in a court session. Such transfer is possible only if there are grounds provided for in parts one and two of Article 317 of the CPC, if the parties have requested such a request or expressed their consent.

3. The court is obliged to verify the presence/ absence of circumstances provided for in Articles 35,36,45 of the CPC, entailing the termination or suspension of proceedings in the case, and the absence of grounds preventing the appointment of a court session.

It is also necessary to check the observance of legality in pre-trial proceedings, accelerated pre-trial investigation, conclusion of a procedural agreement, agreement on reconciliation through mediation.

During an expedited pre-trial investigation, the guilt of a person who has committed crimes classified as minor, moderate or serious should not be in doubt, the guilty person should voluntarily declare his guilt and the amount of harm caused, and the legal consequences of the ingrained pre-trial investigation should be explained to him. Accelerated pre-trial proceedings are not applied to persons who have committed a particularly serious crime, who do not speak the language of legal proceedings, minors and persons who are unable to exercise their rights to defense due to their physical or mental disabilities, or failure to admit guilt by one of the accomplices. A procedural agreement may not be concluded with persons who have committed an act prohibited by criminal law in a state of insanity or who have become ill with a mental disorder after committing a crime.

In case of violations of the specified conditions for the expedited pre-trial proceedings and the conclusion of a procedural agreement, the court decides to hold a preliminary hearing.

The court clarifies the delivery of a copy of the indictment. The specified procedural action is assigned by the legislator to the prosecutor. The indictment must be handed over to the accused, the defendant's defense attorney, the victim, and his legal representative. The indictment shall be handed over to the accused or victim who does not speak the language of the proceedings in the language of the proceedings, accompanied by a certified copy of the translation set out in the language of the proceedings chosen by these persons. Translation into the language of criminal proceedings is provided free of charge.

The indictment can be served in any way: against receipt, or by using telecommunication means of communication. In respect of the accused who have traveled outside the Republic of Kazakhstan and are evading appearance at the prosecutor's offices, it is allowed to publish a message about the referral of the case to the court through the media.

The judge also finds out whether the preventive measure chosen for the accused at the pre-trial stage is subject to cancellation, modification, or extension. The decision to remand the accused in custody or to extend the period of detention may remain in force after the end of the inquiry or preliminary investigation and the referral of the criminal case to the court only during the period for which this preventive measure was established. The total period of detention during the pre-trial investigation is not more than two months. This period may be extended up to eighteen months in exceptional cases provided for in Article 151 of the CPC. The law does not provide for a further extension, and the suspect in custody and the accused are subject to immediate release. The extension of the terms of detention for more than twelve months, but not more than eighteen months, is allowed only in exceptional cases, in relation to persons suspected of committing particularly serious crimes, crimes as part of a criminal group, as well as other terrorist and (or) extremist crimes. In cases submitted to the court, the period of detention of the defendant is calculated from the date of receipt of the case to the court until the day of sentencing. The legislator provides for a six-month extension of detention, with the exception of cases of serious crimes and especially serious crimes.

In cases of serious crimes, the court, if there are grounds, has the right to extend the period of detention up to twelve months. The court does not provide for a further extension of the period of detention for the defendant. Upon the expiration of this period, the court is obliged to change the defendant's measure of restraint to house arrest or another measure of restraint. In cases in which at least one of the defendants is accused of committing a particularly serious crime, these restrictions do not apply.

The judge has the right to cancel or change the measure of restraint. A preventive measure is lifted when it is no longer necessary, or changed to a stricter or milder one when the grounds for choosing a preventive measure provided for in art.153 of the CPC change.

6. In the preparatory stage, the court must determine whether measures have been taken in pre-trial proceedings to ensure compensation for damage caused by a criminal offense and possible confiscation of property. In order to ensure the execution of a sentence in terms of a civil claim, other property penalties, or possible confiscation of property, in accordance with Article 161 of the Code of Criminal Procedure, the property of the accused must be seized, which consists in prohibiting, disposing of, and, if necessary, using this property, or seizing property and transferring it to storage. The court should take into account the prohibition established by law on taking measures to ensure the execution of a sentence in terms of a civil claim for seizure of the property of a suspect, accused or persons legally financially responsible for their actions, who are creditors of financial organizations whose obligations are subject to restructuring in cases provided for by the laws of the Republic of Kazakhstan regulating the activities of financial organizations.

If, at the pre-trial stage, the legally prescribed measures to ensure compensation for damage and possible confiscation of property have not been taken, the judge shall oblige the criminal prosecution authorities to take the necessary measures to ensure them by issuing a ruling.

The judge is obliged to find out whether there are applications and petitions. The suspect, the accused, his defender, the victim, his legal representative and representative, the private prosecutor, the expert, as well as the civil plaintiff, the civil defendant, their representatives have the right to file a petition for the conduct of procedural actions or the adoption of procedural decisions to establish the circumstances relevant to the criminal case, ensuring the rights and legitimate interests of the participants in the process, which It is subject to review and resolution immediately after his application by issuing a ruling. In cases requiring investigation of the basis and validity of the petition, when an immediate decision is impossible, a deadline for resolution is set no later than 3 days from the date of his application. The law does not restrict the re-application of applications after their rejection.  

These issues must be clarified in order for the judge to resolve the issue of the appointment of a trial.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

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