Commentary to article 53. Powers of the court The Criminal Procedure Code of the Republic of Kazakhstan

The powers of the court as a judicial authority are determined by law.

Only the court is competent:

1) to find a person guilty of committing a criminal offense and impose punishment on him;

2) to apply compulsory medical measures or compulsory educational measures to a person;

3) to cancel or amend the decision taken by the lower court;

4) review judicial acts based on newly discovered circumstances;

5) to authorize the measure of restraint chosen by the investigator, the inquirer, the body of inquiry, the prosecutor in relation to the suspect, the accused in the form of detention, house arrest, extradition arrest and to extend their terms;

6) authorize procedural coercion measures in the form of temporary suspension from office and a ban on approaching the suspect or the accused.;

7) forcibly place a person who is not in custody in a medical organization for conducting a forensic psychiatric and (or) forensic medical examination;

8) authorize the exhumation of the corpse, the declaration of an international search, the seizure of property.

In the cases and in the manner provided for by this Code, the court:

1) considers complaints about decisions and actions (inaction) of the criminal prosecution body, the prosecutor;

2) at the request of the prosecutor, the defender deposits the testimony of the witness and the victim;

3) imposes monetary and administrative penalties;

4) considers issues related to the execution of the sentence;

5) consider the prosecutor's request for confiscation of property obtained illegally before sentencing.

If, during the judicial review of the case, circumstances are revealed that contributed to the commission of a criminal offense, violation of the rights and freedoms of citizens, as well as other violations of the law committed during the pre-trial investigation, the court issues a private resolution, which draws the attention of relevant organizations or individuals to these circumstances and facts of violations of the law, requiring the necessary measures. The court has the right to make a private decision in other cases, if it deems it necessary.

A private ruling against a lower court (judge) is not issued. Violations of the law committed by a lower court that resulted in the cancellation or amendment of a verdict or resolution are indicated in a judicial act of a higher court. When establishing the facts of the commission of acts constituting other criminal offenses, or acts entailing administrative or disciplinary liability, the court issues a private resolution to the relevant prosecutor for taking measures provided for by law.

In cases stipulated by law, in cases under consideration, the judge has the right to request operational accounting files and materials of secret investigative actions of the bodies of inquiry related to the case under consideration, and to get acquainted with them, with the exception of information not subject to disclosure about the organization of operational investigative activities and secret investigative actions, specific operational investigative measures and secret investigative actions, sources and ways to get information.

1. The powers of courts as public authorities in the Republic of Kazakhstan are defined by the Constitutional Law "On the Judicial System and the Status of Judges of the Republic of Kazakhstan". Judicial power in the Republic of Kazakhstan belongs only to courts represented by permanent judges, as well as jurors involved in criminal proceedings in cases and in accordance with the procedure provided for by law. Judicial power is exercised on behalf of the Republic of Kazakhstan and has as its purpose the protection of the rights, freedoms and legitimate interests of citizens and organizations, ensuring the implementation of the Constitution, laws, other normative legal acts, international treaties of the Republic.

In accordance with subparagraph 1) Paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, only a court is authorized to find a person guilty of committing a crime. It should be borne in mind that the court has the right to recognize the innocence of the defendant, passing an acquittal in the absence of an event or corpus delicti, and the lack of evidence of the defendant's participation in the commission of the crime.

The law also includes in the exclusive competence of the court: the imposition of punishment on a person guilty of committing a crime; the application of compulsory medical measures or compulsory educational measures to a person; the review of judicial acts issued by lower courts during the consideration of criminal cases, with the cancellation or amendment of the decision taken by these courts; the authorization of not only preventive measures, but also temporary removal from office, prohibition of approach, exhumation of a corpse, announcement of an international search, seizure of property.

The commented norm indicates that when deciding on the punishment of a person guilty of committing a crime, the court has the right both to impose a criminal penalty and to decide on release from punishment, and it also has the right to decide on the termination of a criminal case in cases provided for by law.

3. The provision of Part 3 of the commented article on the consideration by the court of complaints against decisions and actions (inaction) of the body of criminal prosecution, the prosecutor, does not mean that any actions (inaction) and decisions of these bodies and persons may be appealed in court. Decisions and actions (inaction) specified in Part 1 of Article 106 of this Code and others that are capable of damaging the constitutional rights and freedoms of participants in criminal proceedings, or obstructing citizens' access to justice, are subject to appeal.

The issues of depositing the testimony of a witness and a victim, imposing monetary and administrative penalties, and confiscating property before sentencing can be found in the comments to the relevant articles of this Code.

In accordance with the norms of the CPC, the court also plays an important role in preventing new crimes and in providing a deep educational impact on all participants in the criminal process. To this end, the court is authorized to issue, simultaneously with the judicial decision, a private preventive resolution, by which it draws the attention of relevant organizations and officials to the causes and conditions identified in the case that contributed to the commission of the crime and violations of the law committed by the criminal prosecution authorities. For example, by a private decision, a court may point out to the heads of government agencies violations in the conduct of public procurement, which subsequently led to the embezzlement of budget funds, and require the elimination of the causes and conditions that contributed to such. The list of grounds for issuing private rulings, as indicated by the Supreme Court in its regulatory resolution No. 11 dated December 19, 2003 "On the practice of courts issuing private Rulings in criminal cases," is not exhaustive, and therefore courts have the right to respond to other facts: disruptions of trials, disrespect for the court, violation of procedural deadlines by authorities., leading a criminal trial.

The court may also issue a private decision and an incentive. The issuance of a private ruling by a court is not an obstacle to the issuance of a private ruling by higher courts when there are other circumstances in the case that require such a response (paragraphs 3, 6). Failure by an official to review private court decisions or to take measures to eliminate the violations of the law indicated in them, as well as an untimely response to a private decision, entail liability established by law.

This Code, unlike the previous CPC (dated December 13, 1997), does not provide for a higher court to issue a private ruling to a lower court (judge). Violations of the law committed by a lower court that resulted in the cancellation or amendment of a verdict or resolution are indicated in a judicial act of a higher court.

This Code has introduced a new institution of an investigative judge, which gives courts broader powers at the pre-trial stages of criminal proceedings, including the function of control in cases provided for by law without influencing operational and tactical decisions and actions carried out by the authorized body.

According to the materials under consideration, the investigating judge has the right: 1) require the body conducting the pre-trial proceedings to provide additional information on the issue under consideration; 2) get acquainted with all the materials of the pre-trial proceedings and examine them; 3) summon the relevant persons to the court session and receive from them the necessary information on the criminal case.

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

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