Commentary to article 504. The procedure for consideration by the court of petitions for the resumption of proceedings on newly discovered circumstances The Criminal Procedure Code of the Republic of Kazakhstan

Petitions for the resumption of proceedings in a case based on newly discovered circumstances are considered solely by the judge of the court of first instance who issued the verdict or resolution. If the case has been ruled by the courts of appeal, cassation, or supervisory instances, the review of court decisions is carried out, respectively, by a single judge of the appellate or cassation instance, and in the supervisory instance – by three judges of the Supreme Court of the Republic of Kazakhstan.

The court session is attended by the applicant, his representative, defense counsel, prosecutor, other participants in the process and persons summoned to the court session. The non-appearance of these persons, duly notified of the time and place of the trial, does not prevent the consideration of the petition. If necessary, the court has the right to oblige them, as well as other persons, to appear at the court session. Participation in the trial of a convicted person in custody may be ensured using scientific and technical means via video communication.

After considering the challenges and petitions, the applicant is the first to speak at the court session, who sets out a petition on the grounds for reviewing the judicial act based on newly discovered circumstances, or the prosecutor, when applying to the court with a corresponding petition, then the court hears the speeches of other persons who appeared at the court session, examines the materials submitted by the applicant, the prosecutor based on the results of the audit or investigation. If the application (petition) or message indicates other circumstances requiring verification and investigation, the court sends them to the prosecutor for the organization of verification or investigation. Based on their results, the prosecutor sends the court verification materials and his opinion on the existence or absence of grounds for reviewing judicial acts.

At the end of the trial, the court issues a ruling in the conference room.

1. In accordance with part 5 of Article 306, part 3 of Article 307, part 4 of Article 308, part 5 of Article 309, part 6 of Article 310, part 4 of Article 311, part 2 of Article 313 of the CPC, petitions for the initiation of proceedings on newly discovered circumstances may be considered in all judicial instances.

If the proceedings have been completed in the court of first instance, and the verdict or resolution has not been appealed, protested, or considered in higher courts, then the request to initiate proceedings on newly discovered circumstances is considered solely by a judge of the district and equivalent courts.

If the case has been ruled by the courts of appeal, cassation, or supervisory instances, the petition for the resumption of proceedings on newly discovered circumstances and the review of court decisions is carried out respectively by a single judge of the appellate or cassation instance, and in the supervisory instance – consisting of three judges of the Supreme Court of the Republic of Kazakhstan.

It should be borne in mind that, in accordance with part 7 of Article 87 of the CPC, a judge who participated in the consideration of a case in a court of first instance, appeal, cassation and supervisory instances cannot participate in the consideration of the same case due to newly discovered circumstances.

2. Upon receiving a request to initiate proceedings on newly discovered circumstances, the judge of the relevant court shall set a date for the court session to be held for its consideration. The legislator does not set a specific time limit during which this petition must be considered in court, therefore, when determining the date of consideration, the judge is guided by the rules of a reasonable time, ensuring that the court performs preparatory actions for the trial, requires the necessary materials, and promptly notifies the persons summoned to the court session. The court considering the petition must have at its disposal the criminal case in which the petition for the resumption of proceedings has been submitted.

3. The second part of this article states that when determining the number of persons to be summoned to court to participate in the consideration of a petition to initiate proceedings on newly discovered circumstances, mandatory participation is provided for the applicant, his representative, defense attorney, prosecutor. If the petition is filed by a convicted person in custody, his participation in the trial can be ensured using scientific and technical means via video communication.

At the discretion of the judge, other participants in the process may be summoned to the court session. At the same time, the commented article provides for consideration of the petition even if the summoned persons fail to appear, provided that they are properly notified of the time and place of the trial. However, the court retains the right, if necessary, to oblige the participants in the process, as well as other persons, to appear at the court session.

4. Judicial proceedings shall be conducted in accordance with the procedure provided for the consideration of the case in the main court proceedings, taking into account the specifics of this article.

After the opening of the court session, the announcement of the composition of the court, the prosecutor, other persons participating in the court session, the resolution of challenges and other petitions, the court proceeds to investigate the circumstances indicated in the petition as the basis for resuming proceedings. The person who filed the petition speaks first, then the court hears the speeches of other persons who appeared at the court session, examines the materials submitted by the applicant and other participants in the process. If the motion is filed by the prosecutor based on the results of an audit or investigation into complaints, statements, or reports received by him, he is the first to speak, followed by other participants in the process.

In any case, the court should check at the court session.:

1) what confirms the existence of the circumstances cited in the petition as grounds for initiating proceedings on newly discovered circumstances;

2) when did the circumstances arise (before or after the court rendered a verdict or resolution in the case) and are these circumstances included in the list specified in the second part of Article 499 of the CPC;

3) when did the author of the petition become aware of these circumstances,

4) if the petition raises the issue of resuming proceedings in order to worsen the situation of the convicted, acquitted, or the person against whom the case was terminated, has the one-year deadline established by law for filing a petition in such cases expired?;

5) were these circumstances really not known to the court at the time of the verdict in the case?,

6) were these circumstances known to the parties during the consideration of the criminal case, did they file petitions for their investigation at the court session, and if so, how did the court resolve them?;

7) did the parties indicate these circumstances when appealing/protesting the verdict/resolution and did they request their consideration by higher courts, if so, what decision was taken on them in these instances;

8) how did the newly discovered circumstances affect the legality and validity of the verdict and court order, and whether, in the presence of these circumstances, the verdict or court order can be recognized as complying with the law,

9) whether the newly discovered circumstances are really the reason for the court's ruling on an illegal verdict, resolution, and how they prevented the pronouncement of a lawful judicial act.

If the petition specifies other circumstances requiring verification and investigation, the court, by its decision, directs them to the prosecutor and instructs the organization of verification or investigation. Based on their results, the prosecutor issues his opinion on the existence or absence of grounds for reviewing judicial acts based on newly discovered circumstances and sends it to the court along with the verification materials. The court examines this conclusion of the prosecutor and the verification materials at the court session. The conclusion of the prosecutor is not obligatory for the court. The court makes a decision based on the materials examined at the court session.

At the end of the trial, the court issues a ruling in the conference room.

5. Attention should be paid to article 502 of the CPC, according to which the court must first decide whether there are grounds for initiating proceedings on newly discovered circumstances. Having seen from the content of the petition a reference to the existence of a court verdict, a ruling issued in connection with the circumstances specified in paragraphs 1), 2), 3) and 6) of the second part of Article 499 of the CPC, he initiates proceedings in view of the newly discovered circumstances. And this decision further serves as the basis for conducting a trial of the circumstances specified in the petition and reviewing the judicial acts issued in the case.

If the petition refers to other circumstances specified in paragraph 4) of the second part of Article 499 of the CPC, the court sends the materials to the prosecutor to organize an investigation. In such cases, the court decides on the resumption of criminal proceedings after receiving an appropriate conclusion and verification materials from the prosecutor.

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

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases