Commentary to article 99. The obligation to consider petitions of participants in the criminal process The Criminal Procedure Code of the Republic of Kazakhstan

1 Participants in criminal proceedings have the right to apply to the person conducting the pre-trial investigation, the prosecutor, the judge (to the court) with petitions for the conduct of procedural actions or the adoption of procedural decisions in order to establish the circumstances relevant during the criminal process, to ensure the rights and legitimate interests of the person who filed the petition, or the person they represent.

2 Petitions may be submitted at any stage of the process. The person who submitted the petition must indicate in order to establish the circumstances in which he requests an action or a decision. Written petitions are attached to the materials of the criminal case, oral petitions are recorded in the protocol of the investigative action or court session.

3 The rejection of a petition does not prevent its re-application at subsequent stages of criminal proceedings or before another body conducting criminal proceedings.

4 The application is subject to consideration and resolution immediately after its application. In cases where an immediate decision on the application is not possible, it must be resolved no later than three days from the date of the application.

5 A petition must be granted if it contributes to a comprehensive, complete and objective investigation of the circumstances of the case, ensuring the rights and legitimate interests of the participants in the process or other persons. In other cases, the application may be refused. The body conducting the criminal proceedings has no right to refuse to satisfy a request for interrogation as specialists or witnesses of persons whose appearance is ensured by the parties. The body conducting the criminal proceedings is obliged to assist the party in ensuring the appearance of the persons indicated by them for interrogation, including through the use of procedural coercion measures provided for by law.

6. The body conducting the criminal proceedings issues a reasoned decision on the complete or partial refusal to satisfy it, which is communicated to the person who filed the petition. The decision on the petition may be appealed in accordance with the general rules for filing and considering complaints established by this Code.

A petition is a certain procedural form of appeal to officials conducting criminal proceedings. At the same time, the law does not contain a list of specific procedural actions and decisions regarding which a petition may be filed. In this way, maximum protection of the rights and legitimate interests of participants in criminal proceedings is achieved.

The law does not require highly motivated petitions from participants in the process and obliges the authorities conducting the criminal process to accept and resolve them in all cases. The decision of the body conducting the criminal proceedings, which satisfies or does not satisfy (in whole or in part) the submitted petition of the participant in the process, must be motivated.

A petition is an oral or written request to perform certain procedural actions, to make procedural decisions, or to provide an opportunity to exercise the rights granted by law.

From a procedural point of view, both oral and written petitions have the same force (i.e. the applicant, at his discretion, determines the most appropriate form of application). However, practice shows that filing petitions in writing is still preferable, since regardless of the decision taken on the application, attaching the document from the party in the form in which it was originally formulated allows, if necessary, to appeal the legality (including the validity) of the decision made on the application.

The person who filed the petition is called the applicant and has the right to file a petition with the inquirer, investigator or court in his native language or the language he speaks.

The petition is submitted directly to the person or body responsible for the performance of the procedural actions or the adoption of the procedural decision requested by the applicant.

The investigator, the inquirer, and the court are required to consider each petition filed in a criminal case.

The application is subject to review and resolution immediately after its application. In cases where an immediate decision on a petition filed during a pre-trial investigation is not possible, it must be resolved no later than 3 days from the date of his application.

The right of interested persons to file a petition is not limited by any time limit and can be implemented at any time during the criminal proceedings. The parties may file a motion for a preliminary hearing after reviewing the materials of the criminal case or after sending the criminal case with the indictment to the court, while the court, having appointed a preliminary hearing, has the right to reject the petition.

The oral petition is entered in the protocol of the investigative action or court session. If an oral petition is filed not during the investigative action, it is drawn up by the inquirer, investigator, prosecutor in the form of a separate protocol.

3. One of the most important guarantees of ensuring the rights and legitimate interests of participants in criminal proceedings is the right of the applicant, established by Part 3 of the commented article, to re-file the petition in case it is rejected by the inquirer, investigator or court.

Violation of the right of participants in criminal proceedings to file petitions is a significant violation of the criminal procedure law.

The inquirer, the investigator and the judge (court) are obliged to consider and resolve each petition filed in the case within their competence. The person considering the application must make one of the following decisions on it: on the satisfaction of the application or on the complete or partial refusal to satisfy it.

For a number of petitions, the law provides for only one decision: to grant the petition. Thus, in accordance with Part 5 of Article 99 of the CPC, the parties may not be denied the interrogation of witnesses, specialists. Also, the victim, the civil plaintiff, the civil defendant and their representatives may not be denied a request for familiarization with the materials of the criminal case upon completion of the preliminary investigation.

The inquirer, investigator, and judge shall make a decision on the satisfaction of the petition, as well as on the complete or partial refusal to satisfy it.

One of the most important guarantees of ensuring the rights and legitimate interests of participants in criminal proceedings is the right of the applicant or other interested persons to appeal the decision on the petition established by the commented article. The complaint is submitted to the prosecutor or to the court and is subject to consideration and resolution in accordance with the procedure established by the CPC.

Decisions made during the court proceedings on the satisfaction or rejection of petitions of participants in the trial regarding the examination of evidence are not subject to appeal in the appellate or cassation procedure.

The range of participants in criminal proceedings who have the right to file petitions is not limited. Persons who are not participants in criminal proceedings are not entitled to file petitions. If their rights are affected by procedural actions or decisions, these persons have the right to appeal against such actions and decisions.

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

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