Commentary to article 52. Composition of the Court of the Criminal Procedure Code of the Republic of Kazakhstan

The consideration of criminal cases in the courts of first instance is carried out solely by a judge, and in cases of crimes for which the criminal law provides for the death penalty or life imprisonment, at the request of the accused, consisting of one judge and ten jurors, with the exception of cases of military crimes committed during wartime or combat conditions, and crimes committed by provided for in articles 99 (paragraph 15) of Part two), 170 (part four), 175, 177, 178, 184, 255 ( part four), 263 (part five), 286 (part four), 297 (part four), 298 (part four), 299 (part four) of the Criminal Code of the Republic of Kazakhstan.

Consideration of criminal cases on appeal is carried out by a judge alone, and when considering complaints, protests against sentences, court decisions in cases of particularly serious crimes, as well as those considered with the participation of jurors, it is carried out collectively by the chairman and at least two judges of the board.

In the absence of the Chairman of the Board of Appeal due to business trip, vacation or illness, the collegial consideration of these cases is presided over by the judge of the board, who is entrusted by the chairman of the court with the duties of chairman of the Board of Appeal.

Cases in the cassation instance are considered collectively by at least three judges under the chairmanship of the chairman of the regional or equivalent court.

If the chairman of the regional or equivalent court is on a business trip, vacation or absence due to illness, the cassation judge is the chairman of the cassation board, who is entrusted by the chairman of the court with the performance of this duty.

If the challenge submitted to the chairman of the regional court is satisfied, one of the judges of the cassation board shall preside at the court session on his instructions.

Cases in the Supreme Court of the Republic of Kazakhstan are considered collectively by at least three judges.

The consideration of cases on the proposal of the Chairman of the Supreme Court of the Republic of Kazakhstan and (or) the protest of the Prosecutor General of the Republic of Kazakhstan is carried out collectively as part of the chairman of the supervisory judicial board and at least six judges.

In the absence of the chairman of the board, the judge who is entrusted with the duties of Chairman of the board by the Chairman of the Supreme Court of the Republic of Kazakhstan shall preside.

The composition of the court when considering cases on newly discovered circumstances is determined in accordance with the rules provided for in Article 504 of this Code.

Consideration of issues arising during the execution of a sentence and consideration of cases on the application of compulsory medical measures to the insane is carried out solely by a judge of the relevant court.

In cases where the number of judges in one collegium is insufficient to ensure collegial consideration of the case due to circumstances preventing them from participating in the consideration of the case, the chairmen of the Supreme Court of the Republic of Kazakhstan, the regional and equivalent courts, respectively, have the right to involve judges of another collegium in the consideration of the case.

1. Justice in the Republic of Kazakhstan is carried out only by professional judges, and may be carried out in criminal cases involving jurors in accordance with chapters 65-70 of this Code.

The commented article establishes the procedure for considering criminal cases: by a single judge, by a court with the participation of jurors and by a collegial court. The sole composition of the court: 1) a judge of a district and equivalent court acting as a court of first instance; 2) a judge of a regional and equivalent court acting as a court of appeal; 3) the judge of the district and equivalent court who issued the verdict or ruling, when considering petitions for the resumption of proceedings in the case due to newly discovered circumstances, and if the case was ruled by the courts of appeal and cassation instances, - the judge of the regional and equivalent court; 4) the judge of the district and equivalent court, when considering issues arising when executing a sentence or applying compulsory medical measures, the judge of the appellate instance when appealing or protesting against such acts of the court of first instance.

Collegial composition of the court:1) a judge of a specialized interdistrict criminal court and a panel of ten jurors; 2) a board of appeal of a regional or equivalent court consisting of a chairman and at least two judges, when considering complaints, protests against sentences, court decisions in cases of particularly serious crimes, as well as those considered with the participation of jurors; 3) a board of cassation instance of a regional or equivalent court consisting of at least three judges, chaired by the chairman of the regional or equivalent court; 4) the board of the supervisory instance of the Supreme Court of the Republic of Kazakhstan, consisting of at least three judges, and when considering cases on the proposal of the Chairman of the Supreme Court of the Republic of Kazakhstan and (or) the protest of the Prosecutor General of the Republic of Kazakhstan, consisting of the Chairman of the supervisory judicial board for criminal cases and at least six judges.

The law links the decision on the composition of the court when considering a case with the category of a crime and the review of judicial acts on appeal, cassation and supervisory review.

All criminal cases under the jurisdiction of district and equivalent courts (specialized, military) are considered according to the commented article by the judge alone.

The law does not connect the decision on the composition of the court with the subject of the crime. In the interdistrict specialized criminal court and the specialized interdistrict military criminal court, cases of crimes for which the criminal law provides for the death penalty or life imprisonment, with the exception of cases of crimes specified in this article, may be considered by a judge and a panel of ten jurors (art.631), in the following cases:: 1) the case belongs to the jurisdiction of these specialized courts; 2) there is a motion for this by the accused. If the accused or the defendant does not file a motion for the consideration of a criminal case with the participation of jurors, then the criminal case is considered in the same court, by the judge alone.

2. In the appellate instance, cases are considered by a judge alone, and when considering complaints, protests against sentences, court decisions in cases of particularly serious crimes, as well as those considered with the participation of jurors, collectively. For the composition of the court and the rules for reviewing court verdicts and rulings on appeal, see the comments to chapters 48-49 of this Code.

In the cassation instance, cases are always considered collectively. Individual consideration of cases is unacceptable. The composition of the court in the cassation instance is indicated in part three (as amended ZRK dated 07.11.2-14) of the commented article. For rules on the review of sentences and court decisions in cassation, see the commentary to chapter 50 of this Code.

Part four of this article specifies the composition of the supervisory judicial board of the Supreme Court of the Republic of Kazakhstan when considering supervisory protests and petitions. For the procedure for reviewing judicial acts under judicial review by the Supreme Court of the Republic of Kazakhstan, see the commentary to Chapter 52 of this Code.

The requirements of the law on the composition of the court when considering criminal cases based on newly discovered circumstances, issues related to the execution of sentences and the application of compulsory medical measures to the insane are mandatory. Failure to comply with it is a significant violation of the criminal procedure law (paragraph 2) of Part 3 of Article 436) entails the unconditional cancellation of the verdict, court order.

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

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