On the application of the norms of the Criminal Procedure Law on the minutes of the court session

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 23, 2005 No. 11.

    The footnote. Throughout the text, the numbers "301" are replaced by the numbers "321" in accordance with the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

     In order to ensure the correct and uniform practice of applying the norms of criminal procedure legislation governing the procedure for conducting, preparing the minutes of a court session, exercising the rights of participants in the process to familiarize themselves with it and make comments, and considering other issues related to this procedural document, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

The protocol of the court session in a criminal case (hereinafter referred to as the Protocol) is the most important procedural document that serves as the basis of a court decision, used by appellate and cassation instances when deciding on the observance by the court of the rights of persons involved in the process, the principle of competition, equality of the parties and other principles of criminal proceedings, on the objectivity, completeness and comprehensiveness of the proceedings.

    The footnote. Paragraph 1 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 15 (for the procedure of entry into force, see paragraph 2); dated 03/31/2017 No. 3 (effective from the date of the first official publication).

The protocol must contain complete and accurate information about the type of court session, the place, date and time of its holding, the name and composition of the court, the necessary information about other persons who participated in the court session, petitions filed, challenges and decisions taken on them, arguments given by the parties, examinations, studied documents, appointment of examinations, facts of disrespect for the court and other violations of the order in the court session, measures taken against violators, and other procedural actions carried out in accordance with the criminal procedure law.

The protocols of the relevant procedural actions should be named taking into account their content and the stage of the proceedings recorded in them.

     In the Protocol, a court session is any court session on a specific criminal case held with the participation of at least one of the representatives of the parties (prosecution, defense), the civil plaintiff, the defendant, their representatives, a witness, as well as a meeting in which procedural decisions are made (sentencing, decisions on termination, transfer of jurisdiction, suspension of its proceedings, postponement of the trial, etc.).

     The preliminary hearing in the Protocol refers to a meeting held by a court in accordance with Article 321 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC).

     The main trial (main court session) in the Protocol refers to the session in which the procedural actions provided for in Chapters 43, 44, 45, 46 of the CPC are carried out, including the preparatory part of the main trial, the judicial investigation, the judicial debate, the utterance of the last word, the proclamation of the verdict.

    The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

The protocol must contain the full name of the court, indicating the area of its location and the region (cities of Astana, Almaty). The composition of the court, information about the participants in the meeting (prosecutor, defender, defendant, victim, civil plaintiff, civil defendant, their representatives, secretary of the court session, bailiff, translator, expert, specialist) They are reflected by specifying not only the surnames, but also the initials of the first name, patronymic (if any), and position of the person participating in the meeting as a representative of a certain body.

Except for the cases provided for in Article 321 of the CPC, Chapters 43, 44, 45, 46 of the CPC, Protocol keeping is also mandatory when:

     consideration of complaints about actions (inaction) and decisions of the prosecutor, criminal prosecution authorities in accordance with Article 106 of the CPC in a closed court session;

     consideration of the issues referred to in paragraphs 1, 2, 5, 6, 7 and 8 of Part one, paragraphs 2 and 3 of part two of Article 55 of the CPC, namely, the authorization of detention; authorization of house arrest; authorization of extradition arrest; extension of detention, house arrest, extradition arrest; application of bail; authorizing the seizure of property; on the sale of material evidence that is subject to rapid deterioration or prolonged storage, which essentially requires significant material costs until the resolution of a criminal case; on the deposition of the testimony of the victim and witness during the pre-trial proceedings;

     consideration of the case in the appellate instance in cases stipulated by part eight of Article 429 of the CPC;

     resolution of issues related to the execution of a sentence in accordance with articles 475 to 482 of the CPC;

     consideration of special proceedings in accordance with the procedure provided for in Chapters 54, 59, 60, 62 of the CPC (application of compulsory medical measures; execution of instructions from a court of a foreign state on the conduct of procedural actions; resolution of issues related to the execution of a verdict of a court of a foreign state);

     consideration of petitions for the resumption of proceedings on newly discovered circumstances in accordance with the procedure provided for in Chapter 53 of the CPC.

    The footnote. Paragraph 5, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 15 (for the procedure of entry into force, see paragraph 2); dated 03/31/2017 No. 3 (effective from the date of the first official publication).

The text in the Protocol should be presented in an easy-to-read font, therefore, as a rule, it is compiled using a computer, and in exceptional cases it can be made by typewriting or written in legible handwriting.

     The use of ready-made forms is permissible when drawing up that part of the Protocol in which the name of the document, the name of the court, the case number, and the venue of the court session are indicated.

The testimony in the Protocol is presented in the first person and, if possible, verbatim, the questions and answers to them are recorded in the sequence that took place during the interrogation. The Protocol also records the questions assigned by the court, as well as those that the interrogated refused to answer, indicating the reasons for the challenge or refusal.

     Abbreviated formulations are unacceptable in the Protocol, which do not disclose the essence of the question posed and the answer given to it, the stated petition and the opinion expressed on it.

If the comments, objections and petitions submitted by the participant in the process are submitted to the court in writing, they are attached to the Protocol in accordance with part four of Article 123 of the CPC, and the secretary of the court session reflects the substance of the statements made in the Protocol.

    An attachment to the Minutes of a written statement by a party to the debate does not relieve the secretary of the court session from the obligation to record in the Minutes the main content of the speaker's speech.

     The protocol of the preliminary hearing of the case should include an explanation of the right of the defendant, accused of committing a crime for which the law provides for the death penalty or life imprisonment, as well as crimes provided for in articles 125 (part three), 128 (part four), 132 (part five), 135 (part four), with the exception of cases on crimes provided for in articles 170 (Part four), 175, 177, 178, 184, 255 ( part four), 263 (part five), 286 (part four), 297 (part four), 298 (part four), 299 (part four) of the Criminal Code of the Republic of Kazakhstan, as well as murders committed in an emergency situation or during mass riots, military crimes committed during wartime or a combat situation, to request that his case be considered by a jury, indicate his position on the matter, the opinion of the parties on the petition.

    The footnote. Paragraph 8, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 15 (for the procedure of entry into force, see paragraph 2); dated 04/21/2011 No. 1 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication).

The court's issuance of a separate reasoned decision should be reflected in the Protocol, indicating the essence of the decision.

     Decisions made by the court at a court hearing without being removed to the conference room are also subject to entry in the Protocol, while in addition to indicating the substance of the decision, on the satisfaction or rejection of the petition, the reasons for the decision announced by the court are reflected in it.

In case of postponement of the trial due to the absence of the judge (due to illness, etc.) considering the case as part of the board, a note on the decision is made in the Protocol signed by the presiding judge (one of the judges) and the secretary of the court session.

     If, for the same reason, there is no judge considering the case alone, the decision to postpone the trial is made by the chairman of the court or another judge in the form of a ruling.

 If the Minutes reflect the oral message of the presiding witness, the victim or another participant in the process about the date, time and place of the next meeting, these persons are considered duly notified of the need to appear at the meeting. At the request of the person who is required to appear at the court session, the court must give him a written notice of the need to appear at the meeting.

The appearance at the next court session of persons who did not take part in previous court sessions, the decision on the possibility of considering the case in the absence of those who did not appear and the clarification of the reasons for their non-appearance should be reflected in the Minutes, regardless of whether the court session is held after a break or postponement of the trial.

When exempting the victim, civil plaintiff, civil defendant or their representatives from participating in any particular part of the hearing, the court must reflect in the Minutes the fact that they have been granted the right to participate in all subsequent court sessions.

The absence in the Protocol of the testimony of the defendant on the merits of the charge against him, if the defendant did not refuse to testify at the hearing, may indicate the incompleteness of the court's examination of evidence at the hearing.

     The absence in the Protocol of data on providing the defendant with the opportunity to exercise the right to participate in court debates and pronounce the last word, if he has not waived these rights, is a significant violation of the norms of procedural law, entailing the unconditional cancellation of the judicial act.

All court actions related to the inspection of physical evidence, location, premises, and disclosure of documents must be reflected in the Protocol. The circumstances related to their examination, the visible results of the examination relevant to the case, are recorded in the Protocol from the words of the presiding judge or from the words of a specialist, another person acting on behalf of the court.

In the case of recording the proceedings using audio or video recording, the secretary of the court session draws up a short written protocol, which indicates: the date and place of the court session, the time of the beginning and end of the court session, the name and composition of the court considering the case, the names and initials of the judges, the secretary of the court session, the name of the case, information about the identity of the defendant, information about the use of audio and video recording equipment by the court, the name of the file containing the audio and video recording, information about the appearance of participants in the process, and other persons, information on the addition to the case of additional materials provided as evidence by the persons involved in the case, the date of drawing up the protocol in its final form.

    The summary record of the court session is signed by the presiding judge and the secretary.

     A tangible medium containing audio and video recordings and a short protocol of the court session are attached to the case file.

    At the request of the persons participating in the case and their representatives, the court shall provide a copy of the audio, video recordings or minutes of the court session. In cases where the case is considered in a closed court session, the audio, video recordings and minutes of the court session are not provided to the persons participating in the case, they are provided with the opportunity to familiarize themselves with the audio, video recordings and minutes of the court session in court.

    The footnote. Paragraph 16 as amended by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

Both the judge who presided over the hearing of the case and the secretary of the court session are responsible for the correctness and timeliness of the Protocol.

     According to articles 83, 123 of the CPC, the secretary of the court session is a civil servant who is not interested in the case under consideration and holds the appropriate position in the staff of the court.

     If necessary, the court may, in compliance with the requirements of Articles 83, 86, 91 of the CPC, involve an employee of another (territorial) court in the case as a secretary of the court session.

    The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

In accordance with part four of Article 347 of the CPC, a full Protocol must be prepared no later than five days after the end of the court session, and if a break is announced or the proceedings are postponed for more than five days, a Protocol of the part of the court session that took place is prepared.

    The protocol as a whole or part of it is considered to have been prepared from the moment of their signing by the secretary of the court session and the judge who presided over the consideration of the case.

    The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

Making any changes to the Protocol after it is signed by the chairman and the secretary of the court session is unacceptable, regardless of the degree of significance and the reasons for the error.

In case of disagreement with the presiding judge about the contents of the Protocol, the secretary of the court session has the right to attach his objections to it, which does not relieve him of the obligation to sign the Protocol.

     The objections of the secretary of the court session are filed immediately after the Protocol and, in accordance with the requirements of article 24 of the CPC, may be the subject of judicial review along with other case materials.

The court is obliged to immediately notify the parties about the preparation of the Protocol of the main trial and provide them with the opportunity to familiarize themselves with it.

     Failure to provide participants in the process challenging the court decision with an opportunity to review the Protocol is the basis for returning the case to the court of appeal for further review.

The request of the person questioned during the trial for familiarization with the record in the Protocol of his testimony is subject to mandatory satisfaction no later than the next day after the application of a written or oral petition. In this case, the chairman and the secretary of the court session must sign the part of the Protocol provided for review.

Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

In the case of an obvious deliberate delay by the party in reviewing the Protocol, the chairman has the right to set a certain time limit, taking into account the volume of the Protocol, the number of participants in the process who wish to review it, and other similar circumstances.

In accordance with the fifth part of Article 123 of the CPC, persons familiar with any part of the Protocol put their signatures at the end of each page and at the end of this part.

    If the person familiar with the Protocol refuses to sign, an appropriate note is made in the Protocol, which is certified by the presiding judge and the secretary of the court session. The person who refuses to sign has the right to explain the reason for the refusal, and this explanation must be entered in the Protocol.

    The footnote. Paragraph 25 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

Upon completion of familiarization with the protocol, the party, as well as other persons specified in part seven of Article 347 of the CPC, have the right to submit their comments on it in writing or in the form of an electronic document within five days.

     In accordance with article 348 of the CPC, if the minutes of a court session are large, the presiding judge, at the request of the parties, sets a longer reasonable time for reviewing it and submitting comments.

     The untimeness of handing over to a party a copy of the judicial act that completed the trial of the case is not a reason for extending the deadline for submitting comments to the Protocol.

    Extending the time limit for reviewing the Protocol and submitting comments on it is not a reason for restoring the time limit for filing an appeal or protest.

    The footnote. Paragraph 26 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

In the comments on the Protocol, the person familiar with it has the right to propose his editorial in writing, along with which video and audio recordings of the trial (other materials recorded by technical means) may be attached to the Protocol.

    The footnote. Paragraph 27 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 15 (for the procedure of entry into force, see paragraph 2).

Persons who have submitted comments on the minutes of the main trial may be summoned by the court for clarification in accordance with the procedure provided for in the first part of Article 349 of the CPC. In this case, the comments are considered in accordance with the Protocol.

    The footnote. Paragraph 28 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

In the decision issued based on the results of consideration of the comments submitted to the Protocol, the court must clearly indicate in which part the comments are satisfied and in which part they are recognized as unfounded.

     Satisfaction of the comments means an indication in the decision that the text of the Protocol proposed by the party and given in the comments corresponds to the circumstances that took place at the court session.

A copy of the resolution on the results of the consideration of the comments on the minutes of the main trial must be sent to the person who submitted the comments immediately after its issuance.

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.

Chairman of the Supreme Court

Republic of Kazakhstan

Judge of the Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

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