On some issues of revision of judicial acts on criminal cases on newly discovered circumstances

Normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2018 No. 9.

     In order to correctly and evenly apply in judicial practice the legislation governing the resumption of criminal proceedings on newly discovered circumstances, the Plenary Session of the Supreme Court of the Republic of Kazakhstan decides to give the following explanations.

The procedure for reviewing judicial acts on criminal cases provided for in Chapter 53 of the Code of Criminal Procedure of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code) for newly discovered circumstances is the stage of the criminal process, and if these circumstances are not known to the court at the time of making a decision, the issue of legal grounds for reviewing judicial acts that have entered into legal force is resolved.

      A verdict, a decision of a court that has entered into legal force, including a decision issued in the order of Chapter 71 of the CPC, may be reviewed by the court on newly discovered circumstances. The grounds for revising judicial acts are circumstances that negate the judicial nodes in the sentence, resolution that have entered into legal force. These grounds are specified in the second part of Article 499 of the CPC, which are final and are not subject to extended interpretation.

     The newly discovered circumstances are determined by the court's verdict that has entered into legal force and certifies the knowingly false testimony of the victim, witness, expert opinion, knowingly false evidence, protocols of investigative and judicial actions, other documents, knowingly incorrect translation, illegal actions of the interrogator, investigator, prosecutor, judge that led to the issuance of an illegal and unjustified sentence or decision.

      These circumstances, in addition to the verdict, can be determined by the decision of the court, prosecutor, investigator or Inquirer to terminate the criminal case specified in part three of Article 499 of the CPC on grounds that cannot be justified.

 

      The grounds for resumption of proceedings are also other circumstances established as a result of an audit or investigation in accordance with part two of Article 502 of the CPC and set out in the prosecutor's application. Other circumstances are those circumstances that were not established during the pre-trial proceedings in the case and were not declared at the main trial, which, in addition or in a set of previously established circumstances, testify to the innocence of the convicted person or his commission of a particularly serious or lighter criminal offense, or the guilt of the person who was acquitted or terminated the case. For example: data on the commission of this crime by another person; declaring the victim considered dead alive; facts establishing the defendant's involvement or non-involvement in the commission of the crime, etc.

      In accordance with paragraph 7) of the second part of Article 499 of the criminal code, newly discovered circumstances are subject to cases when a convicted person outside the territory of the Republic of Kazakhstan and evading appearing in court, without his participation, after the consideration of a criminal case and passing a sentence, filed a petition for reconsideration of a criminal case with his participation.

     Warning. Paragraph 1 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 10.03.2022 No. 3 (effective from the date of its first official publication).

For newly discovered circumstances, only the verdict of the district and equivalent Court, Appellate or Cassation instances (both prosecution and acquittal), the decision to terminate the case, the decision to confiscate property acquired illegally before the sentence is passed can be reviewed. Article 499 of the second part of the CPC 1), 2), 3), 5), 6) petitions on the grounds provided for in paragraphs 7) shall be submitted to the court that issued the sentence, resolution. A petition to initiate proceedings on newly discovered circumstances is submitted to the court of Appeal or Cassation instance, if they revise the judicial act on its merits with the adoption of a procedural decision. If judicial acts are the subject of consideration by the previously existing Cassation collegiums of regional and equivalent courts, the petition is considered collegially by the appellate instances of these courts.

      Applications, notifications on the initiation of proceedings on newly discovered circumstances provided for in paragraph 4) of the second part of Article 499 of the CPC are submitted to the prosecutor.

     Warning. Paragraph 2 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 10.03.2022 No. 3 (effective from the date of its first official publication).

The terms of revision of the guilty verdict or decision on confiscation of property acquired illegally before the issuance of a guilty verdict or court verdict and the resumption of proceedings in favor of the convicted or acquitted are not limited. Revision of an acquittal, a decision to terminate a case or a guilty verdict on grounds that worsen the condition of the convicted person is allowed if a combination of two grounds is observed: if the limitation period for bringing to criminal responsibility provided for in Article 71 of the Criminal Code of the Republic of Kazakhstan has not expired and one year has not passed from the date of discovery of new circumstances. The calculation of the beginning of the opening period of new circumstances is regulated by part four of Article 501 of the CPC.

On the basis of information obtained in the course of Investigation and consideration of other criminal cases, information obtained in the course of Investigation and consideration of other criminal cases, the prosecutor has the right to file a petition to initiate proceedings on newly discovered circumstances, from the statements of a convicted, rehabilitated person, the person against whom the case was terminated, their defenders and legal representatives, the victim, the representative of the victim, as well as citizens, including participants in the proceedings in this case, reports of officials in organizations.

     The death of a convicted person is not an obstacle to the resumption of proceedings in the case under newly discovered circumstances, if his close relatives submit a petition for his acquittal.

     Warning. Paragraph 4 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 10.03.2022 No. 3 (effective from the date of its first official publication).

The resumption of proceedings on the revision of a judicial act on newly discovered circumstances consists in two stages: the initiation of proceedings on newly discovered circumstances and the consideration of the petition.

      A judge, upon receipt by the court of a petition to initiate proceedings on newly discovered circumstances, is obliged to verify within ten days the compliance of the petition with the requirements of Article 499 of the CPC and to make one of the decisions provided for in Paragraphs 1) and 2) of the first part of Article 504 of the CPC.

     In courts of Appeal and Cassation instances, verification of the application for compliance with the requirements of Article 499 of the CPC is carried out individually by a judge of the relevant court.

     When a judge issues a decision on the acceptance of the petition for court proceedings and the resumption of proceedings on newly discovered circumstances, the criminal case is brought to claim and, upon receipt, submits it for consideration at a court session by a decision. A copy of the resolution is sent to the person who submitted the application.

      The application, together with the attached documents, is submitted to the person who submitted it, if:

      if he does not meet the requirements of Article 499 of the CPC, or if the evidence specified in the sentence is challenged;

      it includes part two of Article 499 of the CPC 1), 2), 3), 5), 6) if judicial acts or other acts confirming the grounds provided for in paragraphs 7) are not attached;

      if it raises the question of reviewing court decisions that are not specified in Article 500 of the CPC and are not subject to revision on newly discovered circumstances;

     the decision to refuse to satisfy it is returned without consideration, provided by the same party on the same grounds on which it was made.

     The return of the petition is carried out by a letter from the judge.

     After the elimination of the obstacles that served as the basis for the return of the petition, a person has the right to re-apply to the court on a general basis with a request to initiate proceedings for the revision of the same judicial act on newly discovered circumstances.

     Warning. Item 5 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 10.03.2022 No. 3 (effective from the date of its first official publication).

If the decision of the judge on the resumption of proceedings on newly discovered circumstances, together with the documents attached to it and the criminal case is received, the court must consider the petition at an open court session no later than thirty days from the date of resumption of proceedings or the receipt of the prosecutor's petition.

      The court session is attended by the applicant, his representative, defense attorney, prosecutor, other participants in the process and other persons invited by the court to the court session. The absence of the above persons, duly notified of the time and place of the trial, does not prevent the consideration of the petition.

     If necessary, the court has the right to recognize that the appearance of an individual (persons) at the court session is mandatory, on which a decision is issued.

     The convicted person may participate in the trial himself or by video link.

     After consideration of objections and petitions, the first at the court session is the applicant who reports the petition on the grounds for reviewing the judicial act on newly discovered circumstances, or when applying to the court with a corresponding petition, the prosecutor speaks, then the court-listens to the words of other persons who came to the court session, examines the materials submitted by the applicant, the prosecutor based on the results of the audit or investigation.

      The trial is conducted in accordance with the procedure provided for in Article 347 of the criminal code by drawing up a protocol or recording it by audio and video recording means and drawing up a brief protocol in writing. The issuance of comments to the protocol and their consideration is carried out in accordance with the rules provided for in articles 348, 348-1, 349 of the CPC.

Warning. Item 6 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 10.03.2022 No. 3 (effective from the date of its first official publication).

A petition for the resumption of proceedings related to the revision of a judicial act by a court of First Instance on newly discovered circumstances is considered separately at a court session by a judge of this court who issued a sentence, a decision.

     If the judicial acts on which the review proceedings are initiated on newly discovered circumstances are issued collegially by the courts of appellate instance, then the review of court decisions is carried out collegially, if the case is considered separately by the court of appellate instance, the judge is considered separately.

     Warning. Paragraph 7 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 10.03.2022 No. 3 (effective from the date of its first official publication).      8.excluded by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 10.03.2022 No. 3 (effective from the date of its first official publication).

The judge who participated in the consideration of the case in the court of the first, appellate and Cassation instances may not participate in the consideration of this case on newly discovered circumstances.

At the end of the trial, the court issues one of the resolutions on the satisfaction of the petition, leaving the petition unsatisfied. If the circumstances specified in the second part of Article 499 of the CPC are established and these circumstances cause or entail the issuance of an illegal or unjustified sentence, resolution, the court shall issue a decision on the satisfaction of the petition. In this case, the judicial act is subject to cancellation, and the case is subject to a new pre-trial investigation or submission to the court for consideration depending on the procedural stage at which the specified circumstances were established. If an investigation or a new judicial review is not required, the court terminates the proceedings in the case by a reasoned decision, indicating the grounds.

     A decision on the revision of judicial acts on newly discovered circumstances is issued by the court in the deliberation room. After signing the full text of the decision, the court returns to the courtroom and publishes it.

      In case of cancellation of the court's verdict and other judicial acts that have entered into legal force, the court considering the case on newly discovered circumstances shall make one of the decisions: 1) on termination of the proceedings in the case; 2) on referral of the criminal case to the prosecutor for a new investigation; 3) on referral of the criminal case to the court of

     Appeals, appeals of the prosecutor, protests against the decision of the court at the first, appellate stages, issued based on the results of consideration of the application for revision of judicial acts on newly discovered circumstances, may be submitted by the convicted person, the acquitted person, the victim or their legal representatives and defenders, as well as by the prosecutor to the relevant higher court within fifteen days from the date of

     Complaints, petitions of the prosecutor, and protests filed after fifteen days must be left without consideration.

      Decisions issued by the court at the first, appellate stages based on the results of consideration of the application for revision of a judicial act on newly discovered circumstances on their merits come into legal force after fifteen days from the date of their issuance, and if they are appealed and left in force by a higher court, then on the day of the decision issued by a higher court.

     If a court or prosecutor decides to dismiss a petition for the resumption of proceedings on newly discovered circumstances and it has not been canceled, but has entered into legal force, then the proceedings will not be initiated, even if it is submitted again by another person on the same grounds.

     Warning. Paragraph 10 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 10.03.2022 No. 3 (effective from the date of its first official publication).

The expression of the will of a convicted person whose criminal case was considered without his participation on the basis of resumption of proceedings on newly discovered circumstances specified in paragraph 7) of part two of Article 499 of the criminal code is not an unconditional circumstance for resuming the case. The court satisfies the petition if the nature and significance of the violation of the principles of the criminal process leads to the recognition of the decision as illegal.

Excluded by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 10.03.2022 No. 3 (effective from the date of its first official publication).

Complaints against decisions of the court of first instance, issued based on the results of the revision of the judicial act on newly discovered circumstances, petitions of the prosecutor are brought through the court that issued the resolution. Complaints, protests of the prosecutor on the decision of the court of Appeal, issued based on the results of the revision of the judicial act on newly discovered circumstances, are sent directly to the court of Cassation with notification of the court of Appeal.

     Consideration of Appeals of decisions of the courts of first instance, appeals of the prosecutor issued based on the results of revision of the judicial act on newly discovered circumstances is carried out by regional and equivalent courts in the order of Appeal proceedings and the decision of the court of Appeal adopted on the complaint, petition is final and is not subject to further appeal, appeal.

     Consideration of complaints of decisions of the court of Appeal, protests of the prosecutor adopted on a petition for resumption of proceedings on newly discovered circumstances is carried out directly by the court of Cassation, without prior consideration of them, demanding a criminal case.

     Warning. Item 13 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 10.03.2022 No. 3 (effective from the date of its first official publication).

A petition submitted to the Cassation instance containing a court decision on the resumption of proceedings on newly discovered circumstances is subject to collegial consideration, and the decision adopted as a result of its consideration is final, it enters into legal force from the moment of its disclosure and is not subject to further appeal, protest.

     Warning. Paragraph 14 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 10.03.2022 No. 3 (effective from the date of its first official publication).

After the cancellation of the sentence or decision and the investigation is carried out, the subsequent trial is conducted by the court that issued the first sentence in the general manner established by the CPC. The case is submitted for review to the Proceedings of the appeal instance, if earlier this instance changed or canceled the sentence, as well as in the case of its cancellation by the Cassation instance.

     A newly issued sentence or resolution may be appealed, they may be reviewed by a petition of the prosecutor, or they may be challenged in a general manner.

In accordance with Article 4 of the Constitution of the Republic of Kazakhstan, 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

 

Chairman Of The Supreme Court

Zh. Asanov

     The Republic Of Kazakhstan

 

Judge of the Supreme Court,

Secretary of the plenary session

G. Almagambetova

 

Criminal code, comments (comments )on the Criminal Code, normative resolution of the Supreme Court, Criminal Legislation, normative legal acts of the Republic of Kazakhstan

 

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases