On some issues of applying the norms of Criminal Procedure legislation in the process of preparing a criminal case for a court session
Normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 8, 2017 No. 10.
In order to ensure the correct application and uniform judicial practice of the norms of Chapter 41 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code) regulating the appointment of the main trial and preparatory actions for the court session (hereinafter referred to as the preparation of the main trial for the appointment), the Plenary Session of the Supreme Court of the Republic of Kazakhstan decides to give the following explanations.
In preparing the main trial for appointment, the tasks of the criminal process are to verify compliance with the norms of the Criminal Procedure Law in the course of pre-trial proceedings and resolve issues aimed at preparing and ensuring a criminal case for a comprehensive, complete and objective consideration on the basis of the principle of competitiveness of the judicial process.
When calculating the procedural terms, the courts should be able to distinguish the date of receipt of a criminal case from the date of its acceptance for legal proceedings.
After the clerk performs the accounting and registration work and the case is automatically separated, the criminal case is considered to have entered the Proceedings of the court.
From the moment a judge makes a decision on a case based on the results of a preliminary hearing in accordance with paragraph 1) of the second part of Article 319 of the CPC or in accordance with the requirements of part five of Article 321 of the CPC, article 322, it is considered accepted for judicial proceedings.
2-1. When checking procedural decisions in terms of drawing up a report on the completion of the pre-trial investigation by a person carrying out a pre-trial investigation and recognizing a person as an accused from the moment of drawing up an indictment by a prosecutor, the courts "apply certain legislative acts of the Republic of Kazakhstan with a distinction between powers and areas of responsibility between law enforcement agencies, the prosecutor's office and the court, it is advisable to take as a basis the provisions of subparagraph 4) of Article 2 of the law of the Republic of Kazakhstan dated December 27, 2021 No. 88-VII" on amendments and additions on the implementation of the three-link model", new rules on these issues:
from January 1, 2022, in relation to particularly serious crimes, including cases combined with cases of other criminal offenses, investigated by investigators of the internal affairs bodies, the anti-corruption Service and the Economic Investigation Service;
From January 1, 2023 in relation to cases of corruption crimes provided for in paragraph 29) of Article 3 of the Criminal Code of the Republic of Kazakhstan, including cases combined with cases of other criminal offenses;
effective from January 1, 2024 in respect of cases of other criminal offenses completed in the form of a preliminary investigation.
Warning. Item 2-1 is supplemented by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2022 No. 10 (effective from the date of its first official publication).
Courts have the right to start considering a criminal case in the main trial only after performing the mandatory procedural actions provided for by law and making procedural decisions on the preparation of the trial.
In this case, the judge must take into account the following circumstances:
the powers of a judge to prepare a criminal case on a private prosecution for consideration in court are regulated by Article 409 of the CPC and the explanations of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 13 "on judicial practice in private prosecution cases", and preliminary hearings in such cases are not held;
the judge shall carry out the actions to prepare the appointment of a trial in cases involving jurors and the procedure for preliminary hearing taking into account the specifics established by articles 635, 636 and 637 of the CPC and the provisions of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated August 23, 2012 No. 4 "on the practice of application by courts of the legislation governing the consideration of criminal cases with the participation of jurors", and it is mandatory to conduct preliminary hearing in such cases;
in the case received by the procedural agreement on the admission of guilt at the stage of pre-trial proceedings, the judge performs actions in accordance with article 623 of the CPC and the explanations of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 7, 2016 No. 4 "on the procedural practice of courts in criminal cases in a consensual manner". The judge conducts a preliminary hearing on the case in accordance with the procedure provided for in Article 321 of the Criminal Code to make a decision on the grounds specified in paragraphs 2) and 3) of the first part of Article 623 of the criminal code.
In cases of criminal misconduct, the rules for appointing the main trial and holding a preliminary hearing provided for in Chapter 41 of the Criminal Code do not apply. The judge immediately accepts the case of the received criminal offense for proceedings. It must be considered on its merits within fifteen days from the moment of its receipt to the court in accordance with article 529 of the CPC, or on the day of its receipt, and in cases provided for by part four of Article 529 of the CPC, one of the decisions specified in Paragraphs 1), 2) and 3) of part
In the course of preparing the received case for consideration at the main trial, the judge is obliged to study the case materials no later than five days from the moment of receipt in accordance with the norms of Chapter 41 of the Criminal Procedure Code and find out whether the pre-trial procedural bodies preventing or preventing its consideration at the main trial allowed violations of the requirements of the Criminal Procedure Law, whether there are petitions and complaints of the parties to be resolved, and other grounds for holding a preliminary hearing. In addition, the judge determines whether there is a need to make procedural decisions and perform procedural actions provided for by law on these issues in order to resolve the criminal case smoothly, correctly.
In the absence of the grounds provided for in the first part of Article 321 of the CPC, the judge makes a decision on the appointment of the main trial in a general or abbreviated manner without appointing and holding a preliminary hearing. In the presence of conditions provided for in Article 382 of the CPC, the judge must first decide on the possibility of appointing the main trial in a reduced order. The judge shall make a decision on holding the main judicial proceedings in cases of this category in a general manner on his own initiative, if there is a petition of the party about him to appoint the main judicial proceedings in a general manner, or if the consideration of the case in a reduced manner may affect a comprehensive, complete and objective consideration of the criminal case.
If, after the issuance of the decision on the appointment of the main trial, a petition is received from one of the parties to the criminal process before the expiration of a period of five days from the date of receipt of the case in court, then the stated evidence is subject to consideration and verification at the main trial.
To draw the attention of the courts to the need to strictly comply with the requirements of part one of Article 321 of the CPC regarding the grounds and procedure for holding a preliminary hearing.
The decision of the judge on holding a preliminary hearing must be motivated.
Holding a preliminary hearing in a closed court session is allowed only if there are grounds and conditions specified in the first part of Article 29 of the CPC.
The decision of the judge on each filed petition is reflected in the resolution adopted based on the results of the preliminary hearing.
If, during the study of the received criminal case, it establishes circumstances that exclude the possibility of his participation in the criminal process on the grounds specified in the relevant parts of Article 87 of the CPC, then the judge, without taking any procedural actions in the case and making decisions related to the preparation of the case for consideration, is obliged to refuse further proceedings in accordance with the requirements of the first part of Article 86 of the
If circumstances are established that impede the consideration of a case by all judges of this court, the case is referred to a higher court without holding a preliminary hearing to resolve the issue of transfer to another court of the same level on the recommendation of a judge or the chairman of the court.
It should be borne in mind that the transfer of a case received by a court on a criminal record to another court of the same level on the grounds specified in the first part of Article 317 of the CPC is allowed only with the consent of the accused and in the absence of objections from other participants in the process, in connection with which the courts will determine these circumstances during a preliminary hearing.
In the case against a minor received by a court of general jurisdiction in accordance with the fourth part of Article 307 and the first part of Article 317 of the CPC, in the presence of the written consent of the minor accused, his legal representative and defense attorney to consider the case by this court, the judge is obliged to determine at the preliminary hearing whether, if there are no other obstacles, the main court must decide on the appointment of a trial or sending the case to a Specialized Interdistrict juvenile court on criminal record.
In accordance with the requirements of Paragraph 1) of Article 320 of the CPC, when deciding on the possibility of appointing a court session, the judge must determine whether the received criminal case belongs to the jurisdiction of this court. If the case is not subject to consideration in this court on a criminal record, then the judge, during a preliminary hearing, in accordance with the requirements of part one of Article 316 and part one of Article 321 of the CPC, makes a decision on the referral of the case to the court subject to consideration on a criminal record.
When the case is referred to another court on the basis of a criminal record, the court shall be obliged to comply with Article 320 of the CPC 2), 3), 4), 5), 6) and does not identify the issues listed in paragraphs 7).
However, in order to ensure compliance with the constitutional right to freedom enshrined in Paragraph 1 of Article 16 of the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution) on the basis of the requirements of the second part of Article 342 of the CPC, if the period of detention in respect of the person transferred to the court on the day the case
Petitions received on the selection, cancellation, modification or extension of a preventive measure are resolved at a preliminary hearing in accordance with the procedure established by part three of Article 321 of the CPC.
In case of satisfaction of the petition for the choice of a preventive measure in the form of detention in respect of the accused, for whom any preventive measure provided for in the first part of Article 137 of the criminal code has not been selected during the pre-trial proceedings, the provisions of part eight of Article 148 of the criminal code on determining the amount of bail, explaining the rights and obligations, as well as the procedure for introducing a pledge when choosing this preventive measure do not apply.
In accordance with article 304 of the CPC, it is the prosecutor's responsibility to ensure that the accused is presented with a receipt for receipt of the indictment, as well as that this procedural document is sent by means of communication available to the accused who is outside the Republic of Kazakhstan and evades arrival.
If, during the study of the case, the judge finds out the fact of non-submission and omission of the indictment to the accused in the case provided for by law, he has the right to issue a decision on the appointment of the main trial and oblige the prosecutor to take the necessary measures to submit the relevant documents for filing, including documents certifying the refusal or other evasion of the accused from receiving the indictment before the start of the deadlines specified in part four of Article 322 of the criminal code.
Part two of Article 321 of the CPC establishes a deadline for holding a preliminary hearing within ten days from the moment of its adoption. The law does not provide for the possibility of extending it. In case of receipt from the parties of applications and petitions for the conclusion of a procedural agreement, an agreement on achieving reconciliation by mediation, the judge, when preparing the case for consideration, notes the fact of such petitions declared in the resolution and indicates that due to the lack of time required to develop the terms of the agreements and their conclusion, it is possible to exercise the right declared by them by drawing up and submitting procedural agreements before the start of the trial.
When a person whose testimony is placed for storage in the course of pre-trial proceedings submits a petition of intent to answer in the course of the main trial on the circumstances of the case in which he gave evidence, or a petition from other participants in the process for its interrogation in a timely manner, the judge has the right to satisfy the petition in accordance with part five of Article 99 of the CPC and include it in the list of persons to be invited to the court session in order to directly study the evidence and ensure compliance with the procedural rights of a participant in the criminal process.
The failure of the pre-trial investigation body to take measures to ensure compensation for damage caused by a criminal offense in a criminal case and the possibility of confiscation of property is the basis for the judge to issue a decision on the application of appropriate measures in the name of the prosecutor without holding a preliminary hearing in accordance with the requirements of articles 171 and 325 of the criminal code, indicating the deadline for execution before the completion of the judicial investigation in the case under consideration.
The judge at the stage of preliminary hearing makes a decision on the merger or separation of criminal cases in accordance with the rules provided for in Articles 43 and 44 of the criminal code.
If, in the case received by the court, the accused hides from the court or his whereabouts are not established, then during the preliminary hearing, the court issues a decision on the suspension of the search and Proceedings of the accused and returns the case to the prosecutor for taking measures to organize the search.
In cases involving several persons accused of a corrupt crime, in cases where one or more of them are hiding from the court, and others are being detained under guard, proceedings in a case against the accused who are hiding from the court may be suspended if the rights to protection of the remaining accused are not infringed. In such cases, the court, based on the results of the preliminary hearing, must separate the case against the hidden accused for separate proceedings, send materials to the prosecutor for the organization of the search and appoint the case against the remaining accused detained under guard for consideration at the main trial.
When preparing a case for consideration, issues that are the subject of the main court proceedings should not be resolved in advance.
The judge has the right to study and evaluate materials related to the grounds for termination of the case at the request of the party or on his own initiative, without resolving the issue of guilt or innocence of the accused, as opposed to during the preliminary hearing of the party's petition. The judge must make a decision to terminate the proceedings in the case on the grounds specified in the first part of Article 35 and the first part of Article 36 of the CPC within the limits of the powers granted to him by law, taking into account the circumstances provided for in the fourth part of Article 35 of the CPC, when the termination of the case is not allowed.
In case of refusal to satisfy the application for the exclusion of individual evidence from the admissible evidence, the applicant is explained his right provided for in part three of Article 99 of the CPC.
During the preliminary hearing, petitions of the victim or his representative who declared the return of the case to the prosecutor on the reasons for the need to bring a more serious charge to the accused, involve other persons in criminal liability, based on incomplete investigation or related to the assessment of evidence, are not subject to consideration, since they must be checked at the main trial.
The court may not, on its own initiative, change the limits of the charge and the main trial during the preliminary hearing.
Only the prosecutor has the right to change the charge. In accordance with part six of Article 321 of the CPC, the prosecutor has the right to change the charge during the preliminary hearing and submit a new formulation to the court in writing. In cases where the wording proposed by the prosecutor is aimed at bringing a more serious charge or is significantly different from the original charge, the judge has the right to hear the opinion of the participants in the process and postpone the court session within the period of the preliminary hearing and give the prosecutor time to draw up a new indictment and submit a copy of it to the parties in the order of part three of Article 304 of the criminal code.
If, within the established time frame, the prosecutor does not perform the listed actions, the judge appoints the main trial to consider the accused on the same charge transferred to the court, taking into account that the prosecutor can exercise his right at the stage of trial in accordance with part five of Article 340 of the CPC.
If a change in the prosecution leads to a change in the criminal record, then the judge returns the indictment to the prosecutor for redrawing and sending the case on conviction.
The petition of the prosecutor to give time for bringing other persons to criminal responsibility is considered during the preliminary hearing in accordance with part three of Article 340 of the CPC.
A criminal case may be returned to the prosecutor on the basis of Article 323 of the CPC at the request of the parties, as well as on the initiative of the court itself. The petition has the right to be declared by the defendant, his defense and legal representative, the state prosecutor, the victim and his representative, the civil plaintiff and the civil defendant, their representatives.
The decision of the court to send the case to the prosecutor is drawn up by a resolution, which indicates the grounds and motives for returning the case to the prosecutor, the issue of leaving, changing, canceling or extending the preventive measure against the accused is resolved.
To draw the attention of the courts to the fact that it is allowed to return the case from preliminary hearing to the prosecutor in the order of Article 323 of the Criminal Procedure Law only if significant violations of the Criminal Procedure legislation are detected, which cannot be eliminated by the court on their own, with the exception of cases of criminal offenses and do not allow the organization and preparation of the appointment of the main trial to the court, as well as to determine its limits in accordance with Article 340 of the Criminal Procedure Code.
The following circumstances prevent the appointment of the main trial:
in the case received, the investigative body does not comply with the requirements of articles 294, 295, 296 and 297 of the CPC and does not make a decision on the petitions declared by the parties, or the prosecutor does not resolve the timely complaint of the party to the refusal of the investigative body to satisfy them;
taking into account the explanations of paragraph 2-1 of this normative resolution, the prosecutor does not consent to the indictment or the person who drew up this Act does not sign it;
if the accused is not brought to court, taking into account the explanations of paragraph 2-1 of this normative resolution;
taking into account the explanations of paragraph 2-1 of this normative resolution, the resolution on transfer to court does not fully indicate the persons charged and the indictment is drawn up, and there is no resolution on termination of criminal prosecution;
in the resolution on the qualification of the suspect's actions, in the indictment, in the resolution on the transfer to the court, errors are made when recording information related to the identity of the suspect, the accused, and also, if these procedural documents do not indicate that the suspected person was charged with a specific article, part and clause of the criminal law;
the case does not contain an inventory of materials or a list of persons to be summoned to court with an indication of their place of residence (with the exception of persons interrogated under a pseudonym in accordance with Article 97 of the CPC and persons who do not have a specific place of residence;
if the case does not contain a document certifying the identity of the suspected person being detained under guard;
if the materials of the case are executed in a way that does not allow them to be fully read, and there are other violations that cannot be eliminated by the court, then serious violations of the Criminal Procedure Law may be recognized.
Warning. Paragraph 23 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2022 No. 10 (effective from the date of its first official publication).
According to the meaning of the first part of Article 340, the main trial is allowed only in relation to that defendant and only within the limits of the accusation that he filed in court. Regardless of the requirements of articles 204, 299 of the Criminal Code, the resolution on the qualification of the suspect's actions, the indictment does not record information about the event, time, place, method, motivation, consequences, differentiation and other circumstances of the criminal offense committed; the accusation specified in the indictment did not correspond to the accusation specified in the resolution on the qualification of the suspect's actions; in cases where the indictment does not specify the qualification of a criminal offense against each suspect when accusing a person who has committed several criminal offenses, provided for in various articles, parts or paragraphs of the criminal law, each criminal offense is not individually qualified, or when accusing several people for committing one criminal offense, the case is subject to return to the prosecutor from a preliminary hearing.
In case of violation by the pre-trial investigation body of the requirements of the sixth part of Article 190 and the second part of Article 613 of the criminal code, based on the results of the preliminary hearing, the case is subject to return to the prosecutor in all cases. If the defendant declares his innocence during the preliminary hearing on cases completed in the order of accelerated pre-trial proceedings, during the main trial of the case in a reduced order, then the case is subject to return to the prosecutor due to the lack of grounds provided for in the second part of Article 190 of the CPC.
25-1.the decision of the court on the return of a criminal case from a preliminary hearing to the prosecutor may be appealed privately to the court of Appeal in accordance with Article 323 of the Criminal Code, the prosecutor may file a petition.
In the decision on the appointment of the main trial, the court's decision to dismiss the petition of the participants in the process on the return of the case to the prosecutor in accordance with Article 323 of the CPC may not be appealed personally. Objections to such a court decision can be recorded in appeals, petitions of the prosecutor for a court verdict.
Warning. Item 25-1 is supplemented by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2022 No. 10 (effective from the date of its first official publication).
When the case referred to the prosecutor in the order of Article 323 of the CPC is returned to the court, the judge shall verify the full elimination by the prosecutor of the circumstances that prevented the appointment of the main trial or the consideration of the case in the main trial, which was completed in the order of pre-trial accelerated proceedings or with the conclusion of a procedural agreement, based on the results of which he shall make a decision in accordance with the second part of Article 319 of the CPC.
At the same time, if the court finds that additional new evidence has accumulated, proving the guilt of the suspect on the charges brought, then at the initiative of the court or at the request of the party, they are subject to recognition as inadmissible evidence.
In accordance with Article 4 of the Constitution, this normative resolution is included in the composition of the current law, is universally binding and enters into force from the date of its first official publication.
The Republic Of Kazakhstan
The Supreme Court
Chairman
K. Mami
The Republic Of Kazakhstan
The Supreme Court
judge, Secretary of the plenary session
G. Almagambetova
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