Commentary to article 355. Establishing the identity of the defendant and the timeliness of handing him a copy of the indictment The Criminal Procedure Code of the Republic of Kazakhstan

The presiding judge establishes the identity of the defendant by clarifying his last name, first name, patronymic (if any), year, month, day and place of birth, compares the data with an identity document or a certified copy of it, knowledge of the language in which the proceedings are conducted, place of residence, occupation, education, marital status and others. information about his identity. Then the chairman finds out whether and when exactly a copy of the indictment has been handed to the defendant. In this case, the trial may not be initiated earlier than three days from the date of delivery of a copy of the indictment, unless the defendant requests it, and also with the exception of the case provided for in the second part of Article 411 of this Code.

All measures must be taken by the presiding judge to correctly identify the defendant. An error in establishing his identity entails the cancellation of judicial acts. To establish the identity of the defendant, the presiding judge finds out from him the last name, first name, patronymic, date and place of his birth, information about his place of residence, work and other information related to his personality. The specified data is compared with the identity document available in the case file.

According to the criminal procedure legislation, identity documents include:

1) passport of a citizen of the Republic of Kazakhstan;

2) identity card of a citizen of the Republic of Kazakhstan;

3) a foreigner's residence permit in the Republic of Kazakhstan;

4) certificate of a stateless person;

5) the diplomatic passport of the Republic of Kazakhstan;

6) official passport of the Republic of Kazakhstan;

7) Refugee certificate;

8) seaman's identity card;

9) a foreign passport;

10) driver's license;

11) certificate of return;

12) birth certificate of a person who has not reached the age to obtain an identity card;

13) birth certificate;

14) military ID.

2. During the pre-trial proceedings, the accused is given a copy of the indictment, the receipt of which is attached to the case file with the date indicated. The presiding judge inquires from the defendant about the receipt of a copy of the indictment, the date of receipt, since the trial cannot be initiated earlier than three days from the date of delivery of a copy of the indictment. In case of failure to provide a copy of the indictment, the judge shall order the secretary of the court session to hand over a copy of the indictment, for which a receipt is selected. In this case, the court session is postponed, and the next court session is scheduled no earlier than three days from the date of receipt by the defendant of a copy of the indictment. These measures are provided by the legislator to provide opportunities for the defendant to exercise his rights to defense. The main trial must begin no earlier than three days after the parties are notified of the place and time of the start of the court session.

3. The consideration of private prosecution cases has its own peculiarities related to the absence of an indictment, since proceedings in these categories of cases begin with the filing of a complaint by the private prosecution.  Judicial proceedings in cases of private prosecution must be initiated no earlier than three days from the moment the defendant receives a copy of the complaint explaining his rights and no later than fifteen days from the moment the private complaint is received by the court.

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

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