Commentary to article 662. Peculiarities of proceedings in the appellate instance of cases considered by the court with the participation of jurors The Criminal Procedure Code of the Republic of Kazakhstan
The court of appeal, when considering complaints, protests against verdicts, and court decisions with the participation of jurors, verifies that the court that issued the verdict or resolution complies with the norms of criminal and criminal procedure law and, on the basis of this, verifies the legality, validity, and fairness of the verdict or resolution.
The grounds for annulment or amendment of court decisions by the appellate instance are:
1) unjustified exclusion from the proceedings of admissible evidence that may be essential to the outcome of the case;
2) unjustified refusal of a party to examine evidence that may be essential to the outcome of the case;
3) examination at a court hearing of factual data that is unacceptable as evidence, which influenced the outcome of the case;
4) a significant violation of the criminal procedure law provided for by this Code;
5) violations that influenced or could have influenced the decision of the judicial verdict, committed during:
formation of the jury panel;
discussing issues that are not subject to discussion in the presence of jurors;
formulation of issues to be resolved by the jury;
conducting court arguments.
The appellate instance has the right to apply the criminal law on a less serious crime to the convicted person and reduce the punishment in accordance with the modified qualification of the deed or in connection with the incorrect application of the norms of the General and Special parts of the Criminal Code of the Republic of Kazakhstan when imposing punishment. At the same time, the appellate instance does not have the right to apply the criminal law on a more serious crime or to increase the imposed punishment.
An acquittal of a court with the participation of jurors may not be overturned by an appellate instance, except in cases of violations of the criminal procedure law that limited the right of the prosecutor, the victim or his representative to present evidence, as well as those provided for in paragraph 5) of part two of this article, including the unjustified exclusion of admissible evidence.
An acquittal of a court that has entered into legal force in a case considered with the participation of jurors and the decision of the appeals board to uphold it may be overturned by the court of cassation only if the victim's cassation complaint or the prosecutor's cassation protest, in addition to indicating significant violations of the norms of this Code, challenges the substance of the acquittal and During the cassation review, the circumstances provided for in paragraphs 1) and 2) of the first part of Article 664 of this Code will be established., and the illegality of the acquittal.
The above article provides an exhaustive list of grounds for revoking or changing the verdict of a court with the participation of jurors.
2. The sentence is subject to cancellation, in any case, if the court of appeal has revealed the facts of a significant violation of the criminal procedure law by the court of first instance, which are listed in Part 3 of Article 436 of the CPC. For example, if there are grounds, the criminal case was not terminated; the verdict was decided by an illegal composition of the court, the case was considered in the absence of the defendant, the case was considered without the participation of a defense lawyer, etc.
In accordance with the requirements of the CPC, one of the grounds for the unconditional cancellation of the verdict is the decision of the verdict by the illegal composition of the court. In this regard, the concealment by the candidates for jurors, who were subsequently included in the panel, of information that could have influenced the decision on the case and deprived the parties of the right to reasoned and unmotivated challenge, should be the basis for the cancellation of the verdict.
4. One of the grounds for overturning the verdict of a court with the participation of jurors is the erroneous exclusion of admissible evidence from the proceedings, since such a violation restricts the legally guaranteed rights of participants in criminal proceedings to provide evidence and may affect the content of the questions and answers posed to the jurors, and subsequently the decision of a lawful and fair verdict.
Therefore, the exclusion of evidence from the proceedings should be carried out by the presiding judge with mandatory justification of the decision.
5. The prosecutor's protest or the victim's complaint must contain information about violations of the criminal procedure law and the failure to provide evidence, or substantiate the impact of these violations on the jury's verdict.
6. The law imposes very strict requirements for the annulment of an acquittal based on the acquittal verdict of the jury.
7. An acquittal may be overturned in the presence of such criminal procedural violations that limited the right of a party to present evidence or affected the content of the questions and answers posed to the jury.
The prosecutor's protest and the complaints of the participants in the trial should contain a clear request for the annulment of the acquittal, substantiating the relevant motives and grounds.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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