Commentary to article 664. Review of judgments and judgments that have entered into legal force with the participation of jurors in the court of cassation The Criminal Procedure Code of the Republic of Kazakhstan
A cassation review of the acquittal of a court with the participation of jurors and the decision of the appeals board is allowed if significant violations of the criminal procedure law were committed during the trial, which:
1) entailed the decision of the verdict by the illegal composition of the jury;
2) deprived the victim of the right to judicial protection.
They are also subject to revision.:
1) incorrect definition of the type of recidivism and the type of regime of the institution of the penal system;
2) incorrect resolution of a civil claim, except in cases where the claim is dismissed.
The cassation instance has the right to apply the criminal law on a less serious crime to a convicted person and reduce the punishment in accordance with the modified qualification of the act or in connection with the incorrect application of the norms of the General and Special parts of the Criminal Code when imposing punishment, but cannot apply the law on a more serious crime or increase the punishment.
In the cases provided for in the first part of this article, the case is sent for reconsideration to the court of first instance from the stage of the preliminary hearing or the main trial.
An acquittal verdict 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 the Code of Criminal Procedure, challenges the substance of the acquittal The circumstances provided for in paragraphs 1) and 2) of the first part of this article will be established during the cassation review., and the illegality of the acquittal.
1. Mandatory observance of the procedural form of the judicial process provided for by law is a condition for establishing the truth in the case and the correct resolution of the criminal case.
2. Not every violation of the law entails the cancellation of a sentence. In the cassation procedure, the acquittal of a court with the participation of jurors and the decisions of the appellate board are subject to cancellation if only the materiality of the violation of the procedural law is established, which led to the verdict being passed by the illegal composition of the jury, deprived the victim of the right to judicial protection.
3. Significant violations of the criminal procedure law include those violations that, as a result of non-compliance with the prescribed procedure of the criminal process, influenced or could have influenced the decision of a lawful, reasonable and fair sentence.
4. If the court of cassation finds that the verdict in the court of first instance was passed by an illegal jury, such a verdict is in any case subject to cancellation as pronounced by an illegal court, regardless of other arguments of the complaint or protest.
According to P. 29 of Regulatory Decree No. 4 of August 23, 2012 "On the application by courts of legislation regulating criminal proceedings involving jurors", the composition of the jury panel may be considered illegal if the panel includes persons who are not included or not subject to inclusion in the unified and reserve (annual) lists of candidates for jurors. in accordance with paragraph 1 of Article 10 of the Law "On Jurors", who are subject to exemption from the duties of a juror in accordance with the second part of Article 552 of the CPC, and also when establishing a juror in the panel who, during the selection of jurors, concealed information that prevented him from fulfilling his duties as a juror.
In accordance with paragraph 9 of Resolution No. 2 of the Supreme Court of the Republic of Kazakhstan dated April 28, 2000 "On the procedure for criminal proceedings in a supervisory instance" on depriving the victim of the right to judicial protection, significant violations of his rights provided for by the CPC of the Republic of Kazakhstan may indicate, in particular, non-recognition of the victim by a private prosecutor when the prosecutor refuses to charge, deprivation of his rights to participate in court proceedings, to speak in court debates, and others that affected the correctness of the resolution of the criminal case on the merits.
6. Upon finding a violation of the requirements of the General Part or the improper application of articles of the Special Part of the Criminal Code, the court of cassation has the right to change the sentence and apply the law on a less serious crime to the convicted person and reduce the punishment in accordance with the modified qualification of the deed. However, the court of cassation cannot change the sentence to worsen the situation of the convicted person.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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