Commentary to article 494. The procedure for consideration of a case in a supervisory instance, decisions of a supervisory instance court of the Criminal Procedure Code of the Republic of Kazakhstan

The court session of the supervisory instance is opened by the announcement of the presiding judge about which court decision and on whose petition, submission, protest is being reviewed, who is part of the court and which of the participants in the process is present in the courtroom. The absence of the person who filed the petition, the protest, duly notified of the time and place of consideration of the case, does not exclude the possibility of continuing the court session. The participation of the prosecutor in the court session of the supervisory instance is mandatory, with the exception of cases of private prosecution. The case may be considered without the participation of duly notified parties in the event of their failure to appear or receipt of a corresponding statement from them. In the cases provided for in Article 495 of this Code, the participation of a defender is mandatory.

After the resolution of the filed challenges and petitions, the court decides whether to continue the hearing or to postpone it. When the court decides to continue the hearing of the case, the presiding judge gives the floor to the participant in the process who filed the petition, protest. If there are several such participants, they will inform the court of their proposed order of performances. If they do not reach an agreement, the order of the speeches is determined by the court.

The person who filed the petition, protest, sets out the motives and arguments by virtue of which, in his opinion, the appealed decision is illegal, unfounded, unfair. Then the chairman gives the floor to other participants in the process.

If the petition is filed by the defense party, the participants in the process representing it will be the first to speak. The order in which they act is determined either in accordance with the agreement they have reached, or in the absence of such a court decision.

The prosecutor participating in the supervisory instance court expresses an opinion on the supervisory complaints under consideration, sets out the arguments indicated in the protest, and gives an opinion on the legality of the judicial acts that took place in the case.

If the petition or protest is filed by the prosecution, then its representatives speak first, after which the chairman gives the floor to other participants in the process.

The motives and arguments set forth in the submission of the Chairman of the Supreme Court of the Republic of Kazakhstan or the protest of the Prosecutor General of the Republic of Kazakhstan, on behalf of these persons, may be set forth at a court hearing by a judge of the Supreme Court of the Republic of Kazakhstan, who is not part of the board considering the case, the relevant prosecutor.

As a result of the supervisory review of the case, the court, in compliance with the requirements of Article 389 of this Code, shall make one of the following decisions in the conference room:

1) leaves the verdict of the court of first instance, the court of appeal, the decision of the court of first instance, the court of appeal, cassation and supervisory instances unchanged, and the petition, submission, protest for their revision without satisfaction;

2) changes the verdict of the court of first instance, appellate instances, the decision of the first, appellate, cassation and supervisory instances;

3) repeals the verdict and all subsequent rulings and dismisses the case.;

4) repeals the verdict and all subsequent rulings and sends the case for a new judicial review to the court of appeal or the court of first instance, if the case was considered by a jury in the court of first instance.;

5) repeals the decisions rendered in the appeal, cassation and supervisory procedures, changing the verdict of the court or leaving it unchanged.

A decision to send a case for a new judicial review cannot be revoked if judicial proceedings have been initiated in a case accepted by the relevant court.

When considering the submission of the Chairman of the Supreme Court of the Republic of Kazakhstan and the protest of the Prosecutor General of the Republic of Kazakhstan, the issue of the existence of grounds for supervisory review of the judicial act provided for in Article 485 of this Code is first considered, after which it considers them on their merits. Having failed to establish these grounds, the collegium issues a decision on the refusal to review the judicial act.

The grounds for revoking or changing a sentence are the circumstances specified in Article 433 of this Code.

Rulings of the courts of first instance, appeal, cassation and supervisory instances are subject to cancellation or amendment if it is recognized that this ruling made an illegal and unjustified decision by the court of first instance, or unlawfully and unreasonably canceled or amended by a higher court the previous rulings or verdict in the case, or if significant violations of the law were committed during the consideration of the case in a higher court, which influenced or could have influenced the correctness of the decision.

If the unlawful termination of the case or mitigation of punishment to the convicted person was allowed during the consideration of the case in cassation, supervisory procedures, the Supreme Court of the Republic of Kazakhstan has the right to cancel the cassation, supervisory decision and leave in force, with or without modification, the verdict of the court of first and appellate instances, the appeal decision.

The court may commute the sentence imposed on the convicted person or apply the law on a less serious criminal offense.

Upon termination of a criminal case or the imposition of a non-custodial sentence, the convicted person in custody is subject to immediate release from custody. The court shall immediately send to the institution or body executing the punishment a copy of the court's decision and a telegraphic notification of the decision to bring it to the attention of the convicted person and its execution.

In cases where the case is sent for a new hearing, the court has no right: to prejudge questions and conclusions that may be drawn by the court during a new hearing of the case, to prejudge questions about the evidence or lack of evidence of the charge, about the reliability or unreliability of this or that evidence and the advantages of some evidence over others, the application of a court of first instance of a particular criminal the law and the measure of punishment, as well as prejudge the conclusions that may be drawn by the court.

The court reviewing the case verifies the legality, validity and fairness of the court verdict in full. Amendments to a judicial act on grounds not specified in the petition or protest, as well as in respect of other convicts in respect of whom the petition or protest has not been filed, are allowed only if the qualification of a crime committed in complicity with the convicted person in respect of whom the petition has been filed is changed, provided that their situation does not worsen. The court has the right to take a decision on the deterioration of the situation only in respect of those convicted persons indicated in the prosecutor's protest or petition. The court has no right to worsen the situation of the convicted person at his request or at the request of his defender or representative.

The court has no right to establish or consider proven facts that were not the subject of judicial proceedings.

Based on the results of consideration of the submission of the chairman of the cassation board, submitted in the case provided for in the second part of Article 467 of this Code, the supervisory authority cancels one of the decisions of the cassation board with the retention of the other decision, or cancels both decisions and sends the case for a new cassation hearing.

Consideration of a submission by the Chairman of the Supreme Court of the Republic of Kazakhstan or a protest by the Prosecutor General of the Republic of Kazakhstan begins with their report or their authorized persons on the grounds for making a submission or protest provided for in part two of Article 484 of this Code. In the absence of these grounds, the board issues a decision to refuse to review the case, and if there are grounds, it continues to consider the case on its merits.

Consideration of the case on the merits begins with a report by the judge to the supervisory board on the circumstances and grounds for submission, or a report by the prosecutor on the circumstances and grounds for protest. Further consideration of the case is carried out according to the rules provided for in this article.

On the recommendation of the Chairman of the Supreme Court of the Republic of Kazakhstan or the protest of the Prosecutor General of the Republic of Kazakhstan, the supervisory board, based on the materials available in the criminal case and additionally submitted by the parties, fully verifies the correctness of establishing the factual circumstances of the case and the application of the criminal law, compliance with the norms of the criminal procedure law during the proceedings, the legality and validity of the verdict or decision of the court of first instance, appeal and cassation instances.

Based on the results of the review, the supervisory board makes one of the decisions specified in part seven of this article in the form of a resolution. The resolution must comply with the requirements provided for in Article 496 of this Code, and must be signed by the presiding judge and all judges who are members of the court.

The consideration of the case after the annulment of the verdict, the court's decision and the appeal and protest of judicial acts rendered during the new consideration of the case shall be carried out in accordance with Articles 497 and 498 of this Code.

The procedure for reviewing cases in the supervisory instance is similar to the consideration of cases in the appellate instance with exceptions provided by law for this stage of the criminal process. The minutes of the court session are not kept during the proceedings by way of supervision.

The subject of the review by the supervisory instance court is to verify the compliance of the verdict and other court decisions in the case with the requirements of the law and the actual circumstances of the case, as well as the elimination, within its competence, of violations of the norms of the criminal and criminal procedure law committed by lower courts, regardless of whether they were indicated in the complaint or protest.

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