Commentary to article 505. A court ruling issued following consideration of a petition for judicial review based on newly discovered circumstances The Criminal Procedure Code of the Republic of Kazakhstan

Based on the results of consideration of petitions for the revision of judicial acts on newly discovered circumstances, the court issues one of the following decisions on:

1) satisfaction of the petition;

2) abandonment of the petition without satisfaction.

The court shall rule on the satisfaction of the petition if, during its consideration, the circumstances provided for in the second part of Article 499 of this Code are established, and they preceded or entailed the imposition of an illegal or unjustified sentence or court order. In such cases, the court in its decision indicates the cancellation of the relevant judicial act that has entered into force and the referral of the case for a new investigation or consideration. If a new investigation or judicial review is not required, the court shall terminate the proceedings with an indication of the grounds for termination.

Upon satisfaction of the request for revision of the decision on confiscation of property due to newly discovered circumstances, the court cancels the said decision.

The court dismisses a request for review of a judicial act that has entered into legal force if the circumstances indicated therein have not been confirmed or if they occurred but did not affect the legality and validity of the verdict or resolution.

The court decision issued following the consideration of the petition for the resumption of proceedings in the case due to newly discovered circumstances is announced upon the court's exit from the conference room, brought to the attention of interested persons who were not present, explaining the procedure for its appeal and protest. A copy of the resolution is sent to the prosecutor and the person who filed the petition. A copy of the resolution is sent to other interested persons upon their request.

The decisions of the court of the first, appellate, and cassation instances, issued as a result of consideration of the petition for the resumption of proceedings under newly discovered circumstances, enter into force fifteen days after their issuance, and if they were appealed, protested, and upheld by a higher court, then on the day of the decision by a higher court. The resolution issued by the Supreme Court of the Republic of Kazakhstan is not subject to appeal or protest, and comes into legal force from the moment of its announcement. The decision of a higher court to leave unchanged, cancel or amend the appealed decision is final and is not subject to further appeal or appeal.

1. Only after the initiation of proceedings on the newly discovered circumstances, the conduct of judicial proceedings of the circumstances specified in the petition and the materials received by the court, the court has the right to make one of the decisions specified in the first part of this article. In order to make a decision based on the results of consideration of the petition for the resumption of proceedings on the newly discovered circumstances, the court retires to the conference room. The article indicates the types of rulings that the court makes in the conference room, and there are only two such rulings.: 1) satisfaction of the petition; 2) abandonment of the petition without satisfaction.

When deciding which of the listed rulings is necessary to make, the court is guided by parts two and three of this article.

2. The grounds for the decision to grant the petition are:

a) the establishment during the trial of the existence of circumstances provided for in the second part of Article 499 of the CPC;

b) the occurrence of these circumstances before the court pronounces a verdict, resolution;

c) the court's recognition of the fact that these circumstances were not discovered and were not known to the court that issued the verdict, the decision;

d) the newly discovered circumstances have affected the legality of the judicial acts issued in the case;

e) if there are newly discovered circumstances confirmed at the court session, the verdict or court decision cannot be recognized as lawful and justified and must be set aside.

In such cases, the court shall indicate in its decision that the request for judicial review has been granted due to newly discovered circumstances, that the relevant verdict or resolution has been annulled, and that the criminal case has been referred to the prosecutor for a new investigation or to the appropriate court for a new hearing.

3. If, due to the circumstances of the case, a new investigation or judicial review is not required, the newly discovered circumstances themselves or in the verdict handed down in the cases specified in the second part of Article 499 of the CPC indicate the innocence of the convicted person, the court shall overturn the verdict and terminate the proceedings in the criminal case, indicating the grounds for termination.

4. Upon granting a request for review of a pre-sentence confiscation order based on newly discovered circumstances, the court shall cancel the said decision, justifying its decision by the court verdict that entered into force against the person whose property was confiscated by the decision.

5. The court shall issue a decision to dismiss a petition for review of a judicial act that has entered into legal force in the following cases:: 1) if the circumstances indicated in the petition have not been confirmed; 2) the newly discovered circumstances occurred, but did not affect the legality and validity of the verdict or resolution.

The court had already checked the existence or absence of circumstances leading to a review of judicial acts that had entered into force at the previous stage of consideration of the petition, when it decided whether to initiate proceedings on the newly discovered circumstances, and then recognized that there was a reason for this. However, during the trial and a full investigation of all the circumstances, the court may come to another conclusion, for example, that there is insufficient evidence of the existence of newly discovered circumstances, or that the circumstances indicated in the petition or established during the investigation conducted by the prosecutor are actually newly discovered, etc. The existence of a court order to resume proceedings on the case due to newly discovered circumstances is not an obstacle for the court to make a decision on the absence of grounds for reviewing judicial acts based on the results of consideration of the petition on the merits.

6. If, nevertheless, the court session confirmed the existence of new circumstances and established that the court considering the case was unaware of their existence, i.e. there are grounds to consider them reopened, then this is not enough to rule on the satisfaction of the petition and the revision of judicial acts on newly discovered circumstances. The court should analyze the judicial act issued in the case, compare the rationale for the court's conclusions with the newly discovered circumstances, and determine what significant significance they would have had for the outcome of the case if they had been known to the court in a timely manner. For example, after sentencing A., expert N. was brought to criminal responsibility, and by a court verdict that entered into force, he was found guilty of knowingly giving a false conclusion. Meanwhile, from the guilty verdict and the materials of the criminal case against A. It is seen that the court ordered a new expert examination, and it was her conclusions, and not expert N.'s, taken together with other case materials, that formed the basis of the verdict. Thus, the verdict against the expert confirmed the existence of a newly discovered circumstance provided for in paragraph 1) However, an examination of the case materials and an analysis of the court's conclusions in the verdict in the case of A. showed that the deliberate falsity of the expert's conclusion did not result in an unlawful or unjustified sentence. As a result, there are grounds for reviewing the verdict in the case of A. due to a newly discovered circumstance, it is not available. The court issues a decision to dismiss the petition.

7. In the operative part of the decision, the court also specifies the procedure and time limits for its appeal/appeal. Immediately after the court leaves the conference room, the court decision issued following the consideration of the petition for a review of judicial acts in the case due to newly discovered circumstances is announced and brought to the attention of interested persons who were not present, explaining the procedure for its appeal and protest. A copy of the resolution is sent to the prosecutor and the person who filed the petition. A copy of the resolution is sent to other interested persons upon their request.

8. In part five of the commented article, the time of entry into force of the court decision issued by the first, appellate, and cassation instances following consideration of the petition for the resumption of proceedings on newly discovered circumstances is indicated - after fifteen days from the date of their issuance. Complaints/protests against these decisions may be filed by the persons specified in the first part of Article 502 of the CPC, within 15 days from the date of their issuance.

Consideration of complaints and protests against these decisions by a higher court is carried out in accordance with the procedure provided for the consideration of appeals, cassation complaints, and protests.

The decision of a higher court to leave unchanged, cancel or amend the appealed decision is final and is not subject to further appeal or appeal. The resolution issued by the Supreme Court of the Republic of Kazakhstan is not subject to appeal or protest, and comes into legal force from the moment of its announcement.

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

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