Commentary to article 462. Cancellation of the verdict, the appeal decision with the referral of the case for a new appeal hearing The Criminal Procedure Code of the Republic of Kazakhstan

The verdict or appeal decision is subject to cancellation with the referral of the case for a new appeal hearing only if the cassation instance finds significant violations of the criminal procedure law that were not eliminated by the appellate instance, which affected the legality of the verdict or decision.

A verdict or an appeal decision may also be annulled with the referral of the case for a new judicial review on the grounds provided for in paragraph 5) of Article 455 of this Code.

By sending the case for a new hearing, the court of cassation indicates in its ruling which violations of the law committed during the proceedings were not assessed by the court of first instance or the appellate instance, or were committed by that instance itself, and how they affected or could have affected the substance of the judicial acts adopted in the case.

At the same time, the court of cassation has no right to prejudge questions about the evidence or lack of evidence of the charge, the reliability or unreliability of this or that evidence, the advantage of some evidence over others, the application of a criminal law and the measure of punishment by the court of first instance, as well as to prejudge the conclusions that may be drawn by the court.

1. This norm, as follows from the very title of the article, regulates the issues of the cancellation of the verdict, the decision of the appellate instance with the referral of the case for a new appeal.

According to the CPC, such cancellation is possible only if the court of cassation establishes significant violations of the criminal procedure law (on the concept of materiality of violations - see commentary to Article 458 of the CPC) committed by the court of first instance and not eliminated by the appellate instance.

At the same time, the cassation instance must establish that these violations affected the legality of the verdict and the decision of the appellate instance. Consequently, the annulment of judicial acts of the appellate instance is possible only if the court of cassation establishes the totality of all the above conditions.

The CPC provides for the only case when the court of cassation has the right to cancel both the verdict of the court and the decision of the appellate instance at the same time, with the referral of the case for a new judicial review to the court of first instance. This is possible in the case when the case in the court of first instance was considered with the participation of jurors. In this case, having established a significant violation of the norms of the criminal procedure law, having annulled the judicial acts of the first and appellate instances issued in the case, the court of cassation sends the case for a new judicial review to the court of first instance (paragraph 5 of Article 455 of the CPC).

Part 3 of the commented article contains the requirements for the content of the decision of the court of cassation instance when sending the case for a new judicial review. Thus, the cassation decision must necessarily reflect which specific violations of the law committed during the proceedings were not assessed by the court of first instance or the appellate instance, and how these violations affected or could affect the substance of the judicial acts issued in the case.

A formal reference to significant violations of the criminal procedure law, without disclosing their contents, is not enough.

In this provision, the legislator has fixed the provision that the court of cassation has no right to prejudge questions about the evidence or lack of evidence of the charge, the reliability or unreliability of a particular evidence, the advantage of some evidence over others, the application of a criminal law by the court of first instance and the measure of punishment. Thus, there is a direct prohibition to prejudge the conclusions that may be drawn by the court at a new hearing of the case.

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

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