On the consideration of criminal cases in the order of writ proceedings

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2018 No. 17.

     For the purposes of uniform and correct application of the norms of legislation on the consideration of cases by writ, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications.

The procedure for writ proceedings in accordance with part two of Article 629-1 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) applies only to criminal offenses and minor crimes.

    Based on the results of consideration of a criminal offense case in the order of writ proceedings, a fine is imposed as punishment and a mandatory additional punishment provided for by the sanction of the incriminated article of the Criminal Code in the form of deprivation of the right to hold a certain position or engage in a certain activity, if a certain (exact) period of deprivation of this right is established in the sanction of the article of the Criminal Code.

    If the sanction of the article of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) does not provide for a fine as one of the types of basic punishment, writ proceedings are not carried out.

    The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).

It should be borne in mind that the decision on the application of writ proceedings is possible after the identification of a specific person who has committed the relevant criminal offense.

     When allocating a criminal case for the application of writ proceedings, the body conducting the criminal process should strictly comply with the requirements of article 44 of the CPC.

    The allocation of case materials on individual criminal offenses or in relation to individual suspects should not prevent the separate investigation and consideration of the case, ensuring the comprehensiveness, completeness, and objectivity of the investigation of the circumstances and resolution of the case against other persons.

     Proceedings in the rest of the criminal offenses or in relation to other suspects continue in accordance with the CPC.

The issue of consideration of the case in writ proceedings is resolved at the pre-trial stage.

    The person conducting the pre-trial proceedings explains to the suspect, the victim, the civil plaintiff, the civil defendant (their representatives) their procedural rights provided for by law, including the right to apply the order procedure.

    The suspect must be informed:

    what criminal offense is he suspected of committing and what evidence confirms his guilt?;

    on filing a civil claim;

     on the amount (amount) of claims for compensation of property damage and (or) compensation for moral damage, compulsory payment to the Compensation Fund for Victims provided for in Articles 98-1, 98-2 of the Criminal Code, procedural costs;

    when the court passes a guilty verdict on the imposition of the main penalty in the form of a fine, its amount, mandatory additional punishment in the form of deprivation of the right to hold a certain position or engage in a certain activity.;

    on the procedure for the execution of a fine and the deprivation of the right to hold a certain position or engage in a certain activity;

     on recognition of a convicted person under a sentence in writ proceedings as having no criminal record on the grounds provided for in part two and paragraph 2) Part three of Article 79 of the Criminal Code;

    on the procedure for reviewing the verdict;

    about other issues of importance in the field of writ production.

    The victim, the civil plaintiff and the civil defendant (their representatives) are also explained the specifics and legal consequences of the writ proceedings, informed about the qualification of the suspect's actions, the available evidence, and their right to file a civil claim.

    The person conducting the pre-trial proceedings is obliged to find out whether the suspect, the victim, the civil plaintiff and the civil defendant (their representatives) agree to consider the case without examining the evidence and without their participation in court.

    A protocol is drawn up on explaining their procedural rights to the participants in the process.

    The footnote. Paragraph 3 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).

The suspect has the right to file a written or oral request for the application of writ proceedings. The written petition is attached to the materials of the criminal case, and the oral one is entered into the protocol of the procedural action.

     A suspect's request for the use of writ proceedings in accordance with article 99 of the CPC is mandatory for consideration by the body conducting the criminal proceedings.

    The person conducting the pre-trial proceedings, immediately after the application of the suspect's petition, and in cases where it is impossible to immediately resolve the petition, no later than three days from the date of his application, is obliged to make a decision by issuing a resolution on the satisfaction or refusal to satisfy the petition.

The suspect's petition for the application of writ proceedings must be resolved taking into account the opinions of the victim, the civil plaintiff and the civil defendant (their representatives), who must express them in writing or orally, about which a protocol is drawn up by the person conducting the pre-trial proceedings.

    If at least one of the specified participants in the process has not expressed agreement with the suspect's petition, the order procedure is not applied.

     Absence of the victim, civil plaintiff or civil defendant (their representatives) in the case It is not an obstacle to the application of writ proceedings.

    It is unacceptable for a suspect to bring a petition for the use of writ proceedings or to obtain the consent of the victim, the civil plaintiff and the civil defendant (their representatives) with the suspect's petition under duress from anyone or as a result of an improper explanation of the procedure and consequences of writ proceedings.

    In these cases, writ proceedings are not applied.

The suspect's petition for the application of writ proceedings is subject to satisfaction if the grounds provided for in the second part of Article 629-1 of the CPC are established.

     A decision to grant or refuse to grant a suspect's petition may be appealed in accordance with the procedure provided for in Chapter 13 of the CPC.

     Writ proceedings are not allowed against persons in the cases specified in parts three, four and five of Article 629-1 of the CPC.

The term of writ proceedings at the pre-trial stage should not exceed five days, which is calculated from the moment the totality of grounds for the application of writ proceedings is established.

    The moment when the grounds for the application of writ proceedings are established should be considered the date on which the person conducting the pre-trial proceedings issued a decision to satisfy the suspect's request for the application of writ proceedings.

     After the ruling on the satisfaction of the suspect's petition for the application of writ proceedings, the person conducting the pre-trial proceedings is obliged to familiarize the suspect, his defense attorney, the victim, the civil plaintiff, the civil defendant (their representatives) with the case materials.

After reviewing the case materials, the participants in the process have the right to file a motion, including disagreement with the use of writ proceedings or the termination of the case. In this case, the criminal proceedings are conducted in accordance with the general procedure established by the CPC. If there are grounds provided for in articles 35, 36 of the CPC, the case is subject to termination.

     If the resolution of the petitions filed does not prevent the application of writ proceedings and the requirements provided for in Article 629-1 of the CPC are met, the pre-trial proceedings shall end with the issuance of a decision on the application of writ proceedings drawn up in accordance with the first part of Article 629-2 of the CPC.

    To clarify that a decision on the application of writ proceedings cannot be made if at least one of the participants in the process is not familiar with the case materials.

It should be borne in mind that the decision on the application of writ proceedings provides information on the identity of the suspect, which must be established at the pre-trial stage. The data on the suspect's identity, in addition to the personal data corresponding to the identity document, includes other information that is taken into account when imposing a fine: marital status, job availability, health status, number of dependents.

    The decision on the application of writ proceedings is the final document of the pre-trial proceedings. The issuance of a separate decision on trial by writ is not required.

The head of the body of inquiry, the prosecutor, having studied the case with the decision on the application of writ proceedings, are obliged to check whether there are grounds for the application of writ proceedings, whether the procedural rights of each suspect, victim, civil plaintiff, civil defendant are respected at the pre-trial stage.

     The case of a criminal offense and a minor offense in accordance with Article 629-3 of the CPC, with a decision on the application of writ proceedings issued by the person conducting the pre-trial investigation, is subject to transfer to the head of the body of inquiry, who, having agreed on the decision, transmits it to the prosecutor for approval of the decision and referral of the case to the court.

    If the totality of criminal offenses includes both criminal offenses and minor crimes, then the referral of the case to the court is carried out in accordance with the procedure established in cases of minor crimes.

The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).

In the absence of at least one of the grounds provided for in the second part of Article 629-1 of the CPC, the prosecutor or the head of the body of inquiry refuses to approve the decision on the application of writ proceedings and returns the case for pre-trial proceedings on general grounds.

    If the grounds provided for in articles 35,36 of the CPC are established, the head of the body of inquiry or the prosecutor refuses to approve the decision on the application of writ proceedings with the termination of the case.

     The prosecutor or the head of the body of inquiry issues a reasoned resolution on the decision taken. A copy of the decision is handed over or sent to the participants in the process, who have the right to appeal the decision in accordance with the procedure provided for in Chapter 13 of the CPC.

The judge does not issue a decision on the acceptance of the case for trial and the appointment of a court session, or summon the participants in the process to court.

    If the criminal case that has been received is not within his jurisdiction, the judge immediately directs the case to the jurisdiction with the issuance of an appropriate decision.

    A criminal case with a decision on the application of writ proceedings is considered in the courts of first instance by a single judge without holding a court session. The term of consideration of the case does not exceed three days and is calculated from the moment the case is submitted to the court.

The judge makes a procedural decision in the form of a ruling or sentencing.

    The judge issues rulings:

    on the return of the case to the prosecutor

    on the termination of criminal proceedings.

    To explain to the courts that the return of a criminal case on the grounds of the need to finalize the case materials or by writing a cover letter without making a reasoned decision is not allowed.

    The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).

The judge returns the case if there is no at least one of the grounds provided for in Article 629-1 of the CPC for the application of writ proceedings.

    It should be borne in mind that the incorrect qualification of the act as a criminal offense or a crime of minor gravity, the inconsistency of evidence with the requirements of relevance, admissibility, reliability and sufficiency to establish the guilt of the defendant, the absence of a motion from the suspect for the use of writ proceedings or the consent of the victim, the civil plaintiff or the defendant (their representatives), the failure to explain to the specified participants in the process their procedural rights and features of the order of writ proceedings, violation of their rights to familiarize themselves with the case materials and to file petitions at the conclusion of pre-trial proceedings, the need to impose a criminal penalty other than a fine on the defendant, each individually is an independent basis for returning the case to the prosecutor.

     The need to impose a criminal penalty other than a fine on a defendant should be understood as cases when this type of punishment contradicts the requirements of Article 52 of the Criminal Code, that is, it does not meet the criteria of fairness, necessity and sufficiency to correct and prevent new criminal offenses due to excessive leniency of punishment for the committed act or if the fine is not provided for in the sanction of the incriminated article.

    The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).

The judge issues a reasoned decision on the return of the case.

    The court's decision to return the case is not subject to review by higher courts.

    After the judge returns the case for pre-trial proceedings, the repeated application of writ proceedings in the same case against the same person is unacceptable. In these cases, the criminal case is subject to consideration in a general manner.

In accordance with articles 35 and 36 of the CPC, the court has the right to terminate proceedings in a case filed by writ only in cases where the establishment of grounds for termination does not require a court hearing.

    If, in order to make a decision to terminate a case, it is necessary to examine evidence at a court hearing, clarify the circumstances of the case or the opinions of the participants in the process, then this case cannot be terminated by the court, but must be returned due to the lack of grounds for consideration in writ proceedings.

The judge considers the case within the limits of the charge and only in relation to the defendant, which are specified in the decision on the application of writ proceedings.

    Having made a decision on sentencing, the judge decides only a guilty verdict with a fine.

     The sentence must comply with the requirements of article 629-5 of the CPC in both form and content. The verdict does not provide evidence of the defendant's guilt, their analysis and assessment.

    The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).

In cases of writ proceedings, a fine is imposed in accordance with the requirements of part three of Article 55 of the Criminal Code.

     The convicted person's property status, marital status, the possibility of receiving a salary or other income, as well as the severity of the criminal offense committed by him, in accordance with the requirements of part three of Article 41 of the Criminal Code, must be taken into account by the court when determining the amount and term of payment of the fine.

    Property insolvency is not a reason for refusing to apply writ proceedings and imposing more severe types of punishments on the defendant than a fine.

    If immediate payment of the fine is impossible, the judge, when passing sentence, has the right to grant a deferral or an installment payment of the fine, specifying a specific time period.

     If the issue of postponing the payment of a fine has not been resolved at the sentencing, it may be considered in accordance with the procedure established by paragraph 2) of Article 476 of the CPC during the execution of the sentence.

    To clarify that the delay time is not taken into account when calculating the deadline for payment of the fine.

     The unpaid part of the fine after compulsory execution is replaced by a more severe type of punishment according to the rules provided for in part six of Article 41 of the Criminal Code.

When determining the amount of procedural costs, one should be guided by the explanations of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2018 No. 10 "On the recovery of procedural costs in criminal cases".

    In cases of writ proceedings, in accordance with part six of Article 178 of the CPC, a judge, based on his property status, has the right to partially or completely release a convicted person from paying procedural costs.

     Decisions on a civil claim are made in accordance with the procedure established by Chapter 20 of the CPC.

     Compulsory payment to the Compensation Fund for Victims is carried out in accordance with the requirements provided for in articles 98-1, 98-2 of the Criminal Code.

The court is obliged to ensure that a copy of the verdict is sent or delivered to the convicted person in a timely manner with a notification of delivery, as well as to the defense attorney, the victim (representative) and the prosecutor no later than 24 hours from the date of sentencing.

    A copy of the verdict will be sent to the civil plaintiff and the civil defendant (their representatives) only if they have filed appropriate petitions. A copy of the verdict must be sent to them no later than 24 hours from the date of receipt of the petition.

The guilty verdict and the decision to terminate the case are subject to review in accordance with the procedure established by law: in the appellate instance - on the complaint of the victim and the petitions of the convicted person and the prosecutor, and in the cassation instance – on the protest of the Prosecutor General of the Republic of Kazakhstan.

    The civil plaintiff and the civil defendant (their representatives) have the right to appeal judicial acts only in part of the civil claim.

     In accordance with part eight of Article 68, parts one, two of Article 70 of the CPC, a lawyer is allowed to participate in the case at any time of the criminal process, including after sentencing, on the basis of a written notice of protection (representation) and a copy of the lawyer's certificate. If the lawyer did not participate in the pre-trial stage of the case and provided the court with a written notice of protection (representation) and copies of the lawyer's certificate after the court considered the case, the judicial acts may be appealed by the lawyer.

    The footnote. Paragraph 21 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).

The convicted person has the right to file a motion against the verdict: for disagreement with the verdict or for a review of the verdict in higher judicial instances.

    The courts should take into account that these petitions of the convicted person entail various legal consequences.

    A petition for disagreement with the verdict may be filed within seven days from the date of receipt of a copy of the verdict in cases where the convicted person disputes the legal assessment of his actions, the decision on a civil claim, does not agree with the evidence, the reasonableness of sentencing, the use of writ proceedings, as well as on other grounds other than challenging the imposed amount of fine.

The judge, having considered the petition for disagreement with the verdict, is obliged to cancel the verdict on the day of receipt of the petition and return the criminal case for the organization of an inquiry or investigation in the general order.

    The decision to annul the verdict and return the criminal case is not subject to appeal or review at the request of the prosecutor.

If circumstances arise that prevent the convicted person's petition from being considered by the sentencing judge, the decision to overturn the sentence is taken by another judge of the same court.

A petition in which the convicted person indicates disagreement with the amount of the fine is the basis for reviewing the verdict in an appellate or cassation instance in accordance with the procedure established by law.

     The restoration of the appeal period is considered in accordance with the procedure established by Article 419 of the CPC.

    In the cassation procedure, the review of judicial acts on grounds entailing an improvement in the situation of the convicted person is not limited in time.

The time limits for writ proceedings are calculated according to the rules established by Article 48 of the CPC. In cases where the last day of the term falls on a non-working day, the day of the end of the term is considered to be the next working day, except in cases of calculating the time limits for detention, detention, house arrest and being in a medical institution or educational organization with a special regime of detention.

The judge who returned the case by writ after the cancellation of his sentence, in accordance with the third part of Article 87 of the CPC, cannot participate in the consideration of this case when it is re-admitted to court in the general manner.

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.

    Chairman of the Supreme Court

Republic of Kazakhstan

J. Asanov

    Judge of the Supreme Court of the Republic of Kazakhstan,

Secretary of the plenary session

G. Almagambetova

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