Commentary to article 488. The procedure for filing a petition, protest, submission for review of a verdict, or court order that has entered into legal force The Criminal Procedure Code of the Republic of Kazakhstan

A petition, protest, or submission for the review of judicial acts that have entered into force shall be submitted in writing to the Supreme Court of the Republic of Kazakhstan. In addition to the circumstances listed in Article 423 of this Code, the petition, protest, and submission must indicate which violations of the law were committed during the proceedings and how these violations affected the court decisions, and which of the listed in Article 485 of this Code have grounds for reviewing the contested judicial act. The application must indicate that they are being considered with or without the participation of the persons who submitted them.

Copies of the appealed court decisions and other materials confirming the validity of the arguments of the petition, protest, and submission must be attached to the petition, protest, and submission.

Petitions for judgments that have entered into legal force, court rulings addressed to other state bodies or public organizations may not be accepted for consideration by the Supreme Court of the Republic of Kazakhstan.

The filing of a petition, protest, or submission for the review of judicial acts that have entered into legal force does not suspend their execution, except in the cases provided for in Article 493 of this Code.

The person who submitted the petition or protest, representation, before the beginning of the court session, has the right to change or supplement with new arguments his petition, protest, representation. At the same time, an additional protest by the prosecutor or his statement on the amendment of the protest, as well as an additional petition by the victim, private prosecutor or representatives filed after the expiration of the time limit for appealing the verdict established by the second part of Article 487 of this Code, may not raise the issue of worsening the situation of the convicted person, if such a requirement was not contained in the initial protest, petition.

A petition, protest, or submission may be withdrawn by the person who submitted them before the case is considered by the supervisory authority. The convicted person has the right to withdraw the petition submitted in his interests by his defender or legal representative.

The range of court decisions that can be appealed includes verdicts, rulings of the courts of first instance and appellate instances, as well as rulings of cassation instances.

The Supreme Court's regulatory resolution No. 2 of April 28, 2000 "On the procedure for criminal proceedings in a supervisory instance" (paragraphs 22, 23) states that the conclusions of the supervisory instance court on the legality and validity of sentences and decisions that have entered into force should be based on the case materials and should not be based on for materials that are outside the scope of the case. The court reviewing the case by way of supervision has no right to consider proven facts, the data of which, although available in the case file, were not investigated by the court of first instance and were not established by it in the verdict or rejected. The circumstances that emerged after the entry into force of the verdict cannot be considered by the supervisory instance court, since they were not and could not be considered by the court of first instance. The law does not provide the court of the supervisory instance with the right to establish the presence or absence of evidence necessary for the proper resolution of the case. Additional materials attached to the complaint or protest, which are relevant to the case and indicate the erroneous application of substantive and procedural laws by the courts, the reliability and high quality of evidence used by the courts to establish the evidence of the charge, the role and degree of guilt of the convicted person and other circumstances affecting the correctness of the resolution of the case, may serve as grounds for revoking judicial acts and sending cases for a new judicial review.

Due to the fact that court decisions that have entered into legal force are being appealed, their execution, as a rule, is not suspended. The law proceeds from the fact that a possible judicial error in the case is excluded by the conduct of the main trial in the standard approach, the court decision, moreover, could be the subject of appeal, as well as cassation proceedings. However, Article 493 of the CPC provides that the Chairman of the Supreme Court of the Republic of Kazakhstan and the Prosecutor General of the Republic of Kazakhstan, simultaneously with requesting a case, have the right to suspend the execution of a sentence or court order for a supervisory review for a period not exceeding three months.

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

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