Commentary to article 654. The content of issues to be resolved by a court with the participation of jurors The Criminal Procedure Code of the Republic of Kazakhstan
For each of the acts of which the defendant is accused, three main questions are raised.:
1) has it been proven that the act took place;
2) has it been proven that the defendant committed this act?;
3) whether the defendant is guilty of committing this act.
After the main question about the defendant's guilt, private questions may be raised about circumstances that increase or decrease the degree of guilt or change its nature, and entail the defendant's release from responsibility. If necessary, questions are also raised separately about the extent of the criminal intent, the reasons why the act was not completed, the degree and nature of the complicity of each of the defendants in the commission of the crime. It is permissible to ask questions that make it possible to establish the guilt of the defendant in committing a less serious crime, if this does not violate his right to defense.
The issues to be resolved are raised in relation to each defendant separately.
For each of the acts of which the defendant is accused, three main questions are raised that determine the content of the verdict.:
1) has it been proven that the act took place;
2) has it been proven that the defendant committed this act?;
3) whether the defendant is guilty of committing this act.
Since the court's conclusions cannot be based on assumptions, jurors cannot be asked about the likelihood of the defendant's guilt in committing the act. It is also unacceptable to raise questions about the guilt of persons other than the defendants in the questionnaire.
When filling out the questionnaire, questions about the evidence of factual circumstances reflecting the essential elements of the crime of which the defendant is accused should be formulated in a concise form and at the same time sufficiently detailed to reflect the circumstances to be proven (time, place, method of commission of the crime, etc.), therefore, already in the first question The evidence of the act itself must indicate these essential circumstances in terms that are understandable to the jury., as they are stated in the charge brought against the defendant and supported by the State prosecutor.
After the main question about the defendant's guilt, private questions may be raised about circumstances that affect the degree of guilt or change its nature, and entail the defendant's release from responsibility. If necessary, private questions are also raised separately about the extent of the criminal intent, the reasons why the act was not completed, the degree and nature of the complicity of each of the defendants in the commission of the crime (examples of questions in cases of a crime committed by several defendants are given above).
Private issues include, first of all, alternative questions that are raised when the defense or the defendant dispute the evidence of a more serious crime, and therefore there are grounds to raise the question of the defendant's guilt in committing a less serious crime.
For example, if the presiding judge, on the basis of a supported charge, formulated the question of proving murder with particular cruelty (paragraph "d" of Part 2 of Article 96 of the Criminal Code of the Republic of Kazakhstan), and the defense believes that the defendant committed the murder in a state of intense mental agitation caused (provoked) by the unlawful or immoral behavior of the victim (Article 98 of the Criminal Code), then, along with the question of the defendant's guilt in committing a crime under paragraph "d" of Part 2 of Article 96 of the Criminal Code of the Republic of Kazakhstan, the question of the evidence of murder in response to the unlawful behavior of the victim may also be raised (art. 98 OF the Criminal Code of the Republic of Kazakhstan).
4. Questions allowing to establish the guilt of the defendant in the commission of a less serious crime are permissible if this does not worsen the situation of the defendant and does not violate his right to defense.
5. The issues to be resolved by the jury are raised in relation to each defendant separately. If several persons are charged in the case, the questions posed to the jury may be set out for each defendant separately and in such formulations that the answers to them do not prejudice the finding of another defendant guilty or innocent on a single question sheet.
6. It is unacceptable to raise questions using such legal terms as premeditated or reckless murder, premeditated murder with extreme cruelty, premeditated murder for hooligan or mercenary motives, premeditated murder committed in a state of intense mental agitation, murder in excess of the limits of necessary defense, rape, robbery, etc.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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