Commentary to article 626. Court decisions in conciliation proceedings The Criminal Procedure Code of the Republic of Kazakhstan

Based on the results of consideration of the procedural agreement in the conciliation proceedings, the court makes one of the following

motivated decisions:

1) a resolution on the return of the criminal case to the prosecutor, if there are no grounds for the application of conciliation proceedings;

2) a decision to return the criminal case to the prosecutor for the conclusion of a new procedural agreement, if the court did not agree with the qualification of the crime, the amount of the civil claim, or the type or amount of punishment specified in the procedural agreement.;

3) a decision to refuse to consider the case in conciliation proceedings and to return the criminal case to the prosecutor if the court has doubts about the guilt of the defendant.;

4) a resolution on the termination of proceedings in a criminal case, if the circumstances listed in Article 35 of this Code are discovered.;

5) a guilty verdict with the imposition of punishment on the defendant, a decision on a civil claim and other penalties in accordance with the procedural agreement.

In the case of a court ruling specified in paragraphs 1) and 3) of part one of this article, the criminal case is returned to the prosecutor for investigation in accordance with the general procedure.

After the parties have concluded a new procedural agreement in accordance with a court ruling on the qualification of a crime, the size of a civil claim, or the type or amount of punishment, the prosecutor sends the criminal case together with the new procedural agreement to the court for its consideration in conciliation proceedings.

In case of disagreement with the new procedural agreement, the judge issues a decision to refuse to consider the case in the conciliation proceedings and directs the criminal case to the prosecutor for a pre-trial investigation in accordance with the general procedure.

1. In the commented article, the legislator lists the types of decisions that, depending on the specific circumstances of the case, the court may take based on the results of consideration of the case in the conciliation proceedings.

Attention should be paid to the sequence of the list of alleged court decisions, in which the sentencing is in the last place.

2. The first part of this article refers to the consideration by the court in the conciliation proceedings of a procedural agreement, and not anything else. However, this does not mean that the court's view is limited only by the text of the procedural agreement and the procedure for its conclusion.

In the conference room, the judge checks once again whether there are violations of the law when concluding a procedural agreement.

According to the materials available in the case, the judge in the deliberation room also examines the issues of the qualification of the crime and the size of the civil claim, the conformity of the act and the personality of the defendant with the type and size of the punishment specified in the procedural agreement, which may be imposed on the defendant. When discussing these issues, the judge takes into account the circumstances specified in the commentary to Article 423 of this Code.

Upon establishing the circumstances specified in paragraphs 1)-3) of the first part of this article, the judge shall issue a resolution on sending the criminal case to the prosecutor.:

1) due to the lack of grounds for the application of conciliation proceedings for the investigation of the case in a general manner;

2) to conclude a new procedural agreement, if the court did not agree with the qualification of the crime, the amount of the civil claim, or the type or amount of punishment specified in the procedural agreement.;

3) on the return of the criminal case, the prosecutor for conducting an investigation of the case in the general order in connection with the refusal to consider the case in the order of conciliation proceedings, if the court has doubts about the guilt of the defendant.

If there are doubts about the guilt of the defendant, the court may not pass an acquittal. In such cases, he issues a decision to refuse to consider the case in the conciliation proceedings and return the case to the prosecutor.

3. And only in two cases, the judge, based on the results of consideration of the case in the conciliation proceedings, decides on the merits of the case.:

a) in the presence of the circumstances listed in Article 35 of this Code, the court shall order the termination of proceedings in a criminal case.;

b) the court decides on a guilty verdict with the imposition of punishment on the defendant, a decision on a civil claim and other penalties in accordance with the procedural agreement.

The application of article 67 of the Criminal Code when considering a case in conciliation proceedings is excluded, since this provision applies to persons who have concluded a procedural cooperation agreement and who, after concluding it, fulfilled their obligations. As for the persons who have concluded a procedural agreement in the form of a plea bargain, they cannot fulfill the terms of the agreement in advance, because This procedural agreement is first considered by the court in the conciliation proceedings, after which the court issues an appropriate judicial act, for example, a verdict, after its entry into force, the defendant executes it.

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

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