On the practice of considering criminal cases on appeal

Normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 13.

    The footnote. Throughout the text:

    the words "protests", "prosecutor's protest", "protest", "protest", "protest", "protests", "protest", "prosecutor's protest", "protest" were replaced respectively by the words "prosecutor's petitions", "prosecutor's petition", "prosecutor's petition", "prosecutor's petition", "prosecutor's petition", "prosecutor's petitions", "prosecutor's petition", "prosecutor's petition", "prosecutor's petition";

    The words "part 1", "part 2", "part 2", "part 3", "part 3", "part 5", "part 7", "part 8", "Part 9" are replaced respectively by the words "part one", "part two", "part the second", "part of the third", "part of the third", "part of the fifth", "part of the seventh", "part of the eighth", "part of the ninth";

     the words "protested", "protested", "protested" were replaced, respectively, by the words "bringing the petition by the prosecutor", "bringing the petition by the prosecutor", "the prosecutor's petition was brought" in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective ten calendar days after the date of its first official publication).

     In connection with the introduction of amendments to the law on the consideration of criminal cases in the appellate instance and for the purpose of uniform application of criminal procedure legislation in the consideration of cases on appeal (private) complaints and petitions of the prosecutor, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

    The footnote. The preamble as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective ten calendar days after the date of its first official publication).

To draw the attention of the courts to the fact that appeal proceedings are one of the procedural forms of exercising the right to freely appeal against procedural actions and decisions, enshrined in article 31 of the Code of Criminal Procedure of the Republic of Kazakhstan (hereinafter referred to as the CPC), and are initiated only upon complaints from persons specified in parts one and three of Article 414 of the CPC, and upon petition the prosecutor.

     In this regard, the courts of first instance, when accepting a complaint, a prosecutor's petition, must verify the competence of the person who filed the complaint, the prosecutor's petition. The list of persons specified in the above-mentioned provisions of the law cannot be expanded.

    In respect of a convicted person who died after sentencing, the participants in the trial have the right to file a complaint or a prosecutor's petition only on the grounds necessary for his rehabilitation.

     When deciding on the acceptance of appeals and prosecutor's petitions, the courts of first instance are required to comply with the requirements of the second part of Article 423 of the CPC. If the inconsistency of the complaint or the prosecutor's petition with the requirements of the first part of this article is established by the court of appeal, the court, by its decision, returns them to the authors for proper registration, explaining the possibility of subsequent filing with the court that issued the verdict, and sends the case to the court of first instance.

     In the case of an appeal against the decisions of the courts of first instance, with the exception of those specified in part three of Article 415 of the CPC, a private complaint or petition from the prosecutor, as well as selected materials relating to the subject of the appeal, challenge, must be sent to the appellate instance within the time limit set by the CPC.

    When private complaints or prosecutor's petitions against the decisions of the court of first instance issued during the trial are received by the appellate instance, before the final resolution of the case, it is necessary to ensure their prompt consideration within a reasonable time (up to 10 days from the date of receipt) due to the fact that the decision of the appellate instance on them may significantly affect further consideration of the case. in the court of first instance.

    The footnote. Paragraph 1, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 18 (for the procedure of entry into force, see paragraph 2); dated 04/10/2015 No. 1 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective ten calendar days after the date of its first official publication).

Upon admission to court, each complaint and petition of the prosecutor is subject to immediate registration with the date of receipt. A complaint or a prosecutor's petition filed after missing the deadline specified in Article 418 of the CPC, in the absence of a petition for its restoration, shall be returned with an indication of this reason. The court of first instance issues a decision on this, which is sent to the author with an explanation of the procedure and time limit for his appeal, and the prosecutor submits a petition. In this case, the judge of the appellate instance, during the preparation of the case for consideration, is obliged to take measures to identify circumstances that prevent the consideration of the case on its merits. If the fact of missing the deadline for filing appeals (private) complaints, prosecutor's petitions accepted by the court of first instance, is revealed during the consideration of the case in the appellate instance, the judge (court) must decide to leave them without consideration and return the case to the court for proper processing.

     If a person who has the right to file an appeal or a prosecutor's petition requests the restoration of the missed deadline, such a petition is subject to mandatory consideration in accordance with the procedure provided for in article 419 of the CPC. The decision to reinstate the missed deadline for filing appeals or prosecutor's petitions is not subject to a separate appeal, but may be reviewed by the appellate instance in the case provided for in the second part of Article 419 of the CPC. Upon receipt of petitions for the restoration of the missed deadline to the appellate instance, the case with complaints, the prosecutor's petition and petitions is sent to the court of first instance for their consideration.

    When filing a complaint, a prosecutor's petition against a judge's decision to refuse to restore the missed deadline, the court of first instance sends the complaint, the prosecutor's petition, along with the case to the appellate instance.

    In order to comply with the principle of criminal procedure on the right of everyone to judicial protection of their rights and freedoms, the courts, when considering petitions for the restoration of the appeal period and complaints against decisions to refuse to restore the missed deadline, must exclude cases of unjustified refusals.

    Article 419 of the CPC does not provide for the restoration of the missed deadline for submitting additions to the victim's complaint or the prosecutor's petition with new requirements aimed at worsening the situation of the convicted (acquitted).

    The footnote. Paragraph 2, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of its official publication); dated 12/11/2020 No. 6 (effective ten calendar days after the date of its first official publication).

The right of the participants in the process to amend or supplement the complaints or petitions of the prosecutor submitted by them within the established time limits may be implemented only before the start of the court session.

     Modification or addition in order to worsen the situation of the convicted person is allowed, provided that such a question was raised in the initial complaint, the prosecutor's petition. At the same time, an additional complaint or a prosecutor's motion to worsen the situation of a convicted person may be filed only within the established time limits for appealing and bringing a petition by the prosecutor.

     A complaint or a prosecutor's petition with arguments about the deterioration of the convicted person's situation, filed after the expiration of the term, cannot be considered additional, except in cases where such a requirement was contained in the initial complaint or petition of the prosecutor.

If the appeal was filed by a defense attorney who participated in the court of first instance, and after the verdict was passed, another defense attorney participates in the case with the consent of the convicted person, then he has the right to file an additional appeal on behalf of the convicted person, changing the previous arguments or bringing new ones.

     If the convicted person withdraws the appeal of the defender and there are no other grounds for considering the case, the appeal proceedings initiated on the complaint of the defender are terminated.

     An application, a motion to withdraw an appeal, or a prosecutor's petition is allowed by virtue of part five of Article 423 of the CPC only before the start of the court session. The court's decision on the motion to withdraw the complaint is made by the judge and formalized by the resolution. The decision on the motion to withdraw the complaint or the prosecutor's petition may be included in the main text of the resolution if the appeal proceedings were conducted on the basis of other, not withdrawn complaints, petitions of the prosecutor.

     A complaint filed by a defense attorney who is subject to removal from participation in criminal proceedings in accordance with article 94 of the CPC, but who was not promptly eliminated, is subject to consideration in an appellate instance.

     Complaints from legal representatives of juvenile convicts or victims who have reached the age of eighteen by the time the case is considered by the appellate instance, filed during their participation in the case, are subject to appeal, despite the termination of the functions of legal representatives.

     Persons who were not recognized as participants in the process before the verdict was passed and therefore did not have the opportunity to use their rights as participants in the process, but were subsequently recognized as such in accordance with the procedure established by law, have the right to raise the issue of restoring the time limit for filing an appeal. In such cases, the appellate instance must return the case to the court of first instance to ensure that the new participant in the process can familiarize himself with the case materials and exercise his rights.

The footnote. Paragraph 4 as amended by the regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 18 (for the procedure of entry into force, see paragraph 2); dated 04/10/2015 No. 1 (effective from the date of official publication); amended in Kazakh, the text in Russian is not changed by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/11/2020 No. 6 (effective ten calendar days after the date of its first official publication).

When accepting a case for trial, the court of appeal is obliged to verify: the availability in the case of data on the proper notification of the parties about the preparation of the minutes of the court session, providing a real opportunity to get acquainted with it, reviewing the comments received on the protocol, notifying the participants in the process about the complaint and the prosecutor's petition, whose interests they concern, and providing an opportunity to get acquainted with them, as well as with additional materials attached.

     On appeal, the case must be considered within the time limits established by Article 425 of the CPC. At the same time, a two-month review period is set for cases when new materials and evidence are being investigated or the verdict is overturned and the case is considered in the manner prescribed for the court of first instance. The extension of the review period should be of an exceptional nature, and the grounds for the extension should be motivated in the resolution.

    The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of its official publication).

Upon receipt of a criminal case with complaints, the court of appeal, upon the request of the prosecutor, having established the absence of circumstances preventing the appointment of the case for a hearing, appoints a court session, notifies the parties who, in accordance with Article 414 of the CPC, have the right to participate in the appeal instance about the time and place of consideration of the case, regardless of whether they dispute the verdict (resolution). In order to respect and expand the rights of persons involved in criminal proceedings, to ensure the normal operation of the courts of appeal and the safety of participants in the process, as well as to simplify the administration of justice, the courts of appeal have the right to use information technology, in particular, to consider cases remotely. Online trials should be recorded in the electronic minutes of the court session.

     The failure of duly notified participants in the proceedings to attend the court session does not preclude the consideration of the case. In case of non-appearance of the prosecutor, whose participation is mandatory, consideration of the case in the appellate instance is postponed for the period necessary to ensure his appearance.

     If the case is postponed for valid reasons and the time limit for its consideration is extended in this regard, as well as its withdrawal from consideration due to non-compliance with the conditions required by law, the court of appeal must issue a decision notifying the participants in the process.

     The participation of the convicted/acquitted person in the meeting of the appellate instance is provided in accordance with the third part of Article 428 of the CPC, the participation of the defender is provided in the cases specified in Article 67 of the CPC and in the manner provided for in the fourth part of Article 428 of the CPC.

    The footnote. Paragraph 6, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 18 (for the procedure of entry into force, see paragraph 2); dated 04/10/2015 No. 1 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective ten calendar days after the date of its first official publication).

Considering that the issue of participation in a court hearing of a convicted person in custody is decided by a court of second instance, the case file should contain information on explaining to the convicts their right to participate in the consideration of the complaint, the prosecutor's petition. Information about the convicted person's desire or refusal to participate in the court of appeal is attached by the court of first instance to the case file, and in their absence must be requested.

     In the cases provided for in parts two and three of Article 428 of the CPC, the courts of appeal are obliged to ensure the convicted person's right to participate in the court session with his direct participation or using scientific and technical means to ensure his participation in a remote format.

     In other cases, the issue of summoning a convicted person to a court hearing is decided by the court of appeal for the purpose of comprehensive investigation and taking into account the specific circumstances of the case, based on the need to respect his procedural rights (for example, when appointing examinations).

     A resolution is issued on summoning a convicted person to a court session. The decision of the court of appeal to refuse to satisfy the petition for summoning the convicted person to a court hearing must be motivated in the court decision issued based on the results of the case review.

     Consideration of the case by the court of appeal without the participation of the convicted, not in custody, acquitted or their defenders, if they were not informed of the time of the court session and this deprived them of the opportunity to participate in the court session, is a significant violation of the criminal procedure law.

    The footnote. Paragraph 7, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 18 (for the procedure of entry into force, see paragraph 2); dated 04/10/2015 No. 1 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective ten calendar days after the date of its first official publication).

Taking into account the requirements of the first part of Article 424 of the CPC, the court of appeal, when considering a case based on a complaint or petition from a prosecutor, is obliged, within its competence, to check how comprehensively, fully and objectively the circumstances of the case have been investigated in relation to each convicted person, the correctness of the qualification of the crime, and the conformity of the punishment to what was done.

    After the cassation instance cancels the verdict and all subsequent rulings and sends the case for a new judicial review to the court of appeal, the case is considered according to the rules of the court of first instance in compliance with the norms of chapters 41 to 46 of the CPC.

     In accordance with the second part of Article 426 of the CPC, the appellate instance, upon detection of violations of the rights and legitimate interests of convicted persons, regardless of the arguments of the complaint and the petition of the prosecutor, has the right to make appropriate changes to the verdict (resolution) aimed at improving the situation or to recognize the verdict (resolution) as illegal and cancel.

     In cases where there are grounds for revoking or changing the verdict (resolution) in respect of persons about whom the complaint or the prosecutor's petition has not been filed, the court of second instance is obliged in the introductory part of the resolution to provide information about the identity of this convicted person, indicate under what law, to what measure of punishment he was sentenced, with reference that the case concerning It is considered in accordance with the second part of Article 426 of the CPC.

    If the grounds for reviewing the verdict (resolution) have not been established in respect of persons for whom the court verdict has not been appealed and the prosecutor's petition has not been filed, the decision of the court of appeal should not indicate whether the case has been fully reviewed and whether the court decisions regarding these persons have remained unchanged.

    The footnote. Paragraph 8, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of official publication); dated 03/10/2022 No. 3 (effective from the date of the first official publication).

The composition of the court when considering cases in the appellate instance is determined in accordance with the second part of Article 52 of the CPC.

    If the actions of a person brought to trial on charges of committing a grave or especially grave crime are qualified by a court verdict as a criminal offense or a crime of minor or moderate severity, then the criminal case is subject to collegial consideration by the court of appeal.

    The footnote. Paragraph 9 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/10/2022 No. 3 (effective from the date of the first official publication).

When considering a case, the courts of appeal must comply with the procedure established by Article 429 of the CPC, create equal conditions and opportunities for participants in the process to present their position on the case and exercise the rights granted to them by law.

     When resolving the parties' request to attach additional materials to the case, it should be clarified how they were obtained and what circumstances they are presented to confirm. It should be borne in mind that, in accordance with articles 112 and 429 of the CPC, materials obtained through investigative actions should not be accepted.

     After considering the petitions filed by the parties in accordance with part three of Article 429 of the CPC, the court of appeal issues a ruling in the form of a separate document on their satisfaction or refusal to satisfy. Upon satisfaction of the petitions and the need for additional investigation, the court in its decision indicates the resumption of the judicial investigation and carries out the actions provided for in parts five to eight of Article 429 of the CPC.

    The footnote. Paragraph 10, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 18 (for the procedure of entry into force, see paragraph 2); dated 04/10/2015 No. 1 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective ten calendar days after the date of its first official publication).

The additional materials specified in part five of Article 429 of the CPC should be understood as materials obtained without investigative actions that are relevant to establishing the circumstances of the case. They can be messages, documents, and items containing information about the case, the use of which will help establish the truth. These also include characteristics, information about awards, letters, statements, receipts, contracts, receipts, audit reports, official documentation, certificates of illnesses, criminal records, reports from police officers, phonograms, video recordings, film and photographic documents and other materials certifying the facts and circumstances.

    The footnote. Paragraph 11, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of its official publication); dated 12/11/2020 No. 6 (effective ten calendar days after the date of its first official publication).

When verifying the legality and validity of the verdict (resolution), the court of appeal should take into account the requirements of part seven of Article 337 of the CPC, according to which the court of first instance is obliged to terminate the case in whole or in part if it refuses to charge public or private prosecutors or consider the case on a new charge, which is supported by the prosecution in the court of first instance.

     In such cases, when considering a complaint, a motion by the prosecutor for the prosecution to cancel or amend a ruling, or a sentence passed by a court of first instance in accordance with the position of public and private prosecutors in the main trial, the appellate instance must proceed from the requirements of article 424 of the CPC, which defines the subject of appeal, and articles 442, 663 of the CPC, which regulate the powers of the prosecutor. courts of second instance, according to which the position of the prosecutor and the private prosecutor in the court of first instance is not included in the subject of appeal and is not a basis for the cancellation or amendment of the verdict (decision) of the court of first instance.

    The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of its official publication).

The prosecutor's petition, which raises the issue of worsening the situation of the convicted person, but is not supported by the prosecutor participating in the consideration of the case at the court session of the appellate instance, cannot serve as a basis for making a decision to cancel or amend the verdict (resolution) based on the reasons set out in the petition.

    The prosecutor's petition, which does not contain arguments about the deterioration of the convict's situation, is subject to general consideration under the same conditions.

    The footnote. Paragraph 13 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective ten calendar days after the date of its first official publication).

When considering complaints and petitions of the prosecutor, the appellate instance, at the request of the parties, has the right to carry out the actions specified in article 430 of the CPC.

     In cases considered in conciliation proceedings, the court of appeal verifies the legality of judicial acts only in terms of compliance with the law when concluding a procedural agreement and the procedure for proceeding in court. When considering complaints, a prosecutor's petition for a decision to terminate the case on the grounds provided for in Article 68 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), the court of appeal verifies the legality of the agreement to achieve reconciliation between the parties, along with other circumstances relevant to the proper resolution of the case.

     If additional data is revealed as a result, it can be used by the court of appeal in strict accordance with the requirements of Article 429 of the CPC.

     All actions to exercise the powers of the appellate instance are formalized by a resolution. The minutes of the session of the appellate instance are kept in the cases provided for in part eight of Article 429 of the CPC.

    The footnote. Paragraph 14, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 18 (for the procedure of entry into force, see paragraph 2); dated 04/10/2015 No. 1 (effective from the date of official publication).

The appellate instance considers the case within the limits of the charge that was supported by the prosecution in the main trial, and makes one of the decisions specified in article 431 of the CPC.

     The Court of Appeal when making decisions provided for in paragraphs 1), 2), 3), 6), 7), 8), 9), 10) of the first part of Article 431 of the CPC, issues a resolution. When making decisions provided for in paragraphs 4), 5) of the first part of Article 431 of the CPC, the court of appeal, in compliance with the requirements of Chapter 46 of the CPC, issues a new verdict, which provides the reasons and grounds for the cancellation of the verdict of the court of first instance. The operative part of the appeal verdict begins with a statement of the decision to overturn the verdict of the court of first instance.

     The grounds for revoking or changing a court verdict are violations of the law listed in article 433 of the CPC.

     The court of appeal, having established violations of the CPC at the stage of pre-trial proceedings during the drafting of a procedural agreement (absence of the defendant's voluntary will to conclude an agreement, lack of consent of the victims, inconsistency of the agreed period, type and amount of punishment with the requirements of the law, etc.), issues a reasoned decision to cancel the verdict and send the criminal case to the prosecutor to eliminate the violations identified.

    After the prosecutor has eliminated the violations committed during the drafting of the procedural agreement, the case is sent for consideration to the court of first instance.

     The court of appeal overturns the verdict and sends the case for a new hearing to the court of first instance if the following violations of the criminal procedure law are found: sentencing by an illegal court, violation of the right of the defendant or victim to use his native language or the language he speaks, or the services of an interpreter, and if the verdict is not signed by the judge.

    The court of appeal has the right to cancel the court's decision and send the case for a new hearing to the court of first instance if the case has not been considered on its merits.

     The appellate instance has the right to overturn a court verdict passed with the participation of jurors, in whole or in part, in respect of all or some of those convicted (acquitted), under one or more articles of the Criminal Code.

    By overturning a court verdict indicating which circumstances are subject to verification and how the violations are to be eliminated, the court of appeal has the right to make only recommendations that do not prejudice the conclusions of the court of first instance upon a new examination, and do not exclude the possibility of a comprehensive assessment of evidence by the court of first instance at its discretion.

     Upon termination of the case due to the absence of a criminal offense, the appellate instance is obliged to comply with the requirements of part nine of Article 35 of the CPC.

    The footnote. Paragraph 15, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 18 (for the procedure of entry into force, see paragraph 2); dated 04/10/2015 No. 1 (effective from the date of official publication); dated 03/10/2022 No. 3 (effective from the date of the first official publication).

The one-sidedness and incompleteness of the judicial investigation, which should be understood as the lack of clarification of the essential circumstances of the case or their superficial examination, may serve as a basis for overturning the verdict if, on the basis of the materials available in the case and additionally submitted to the appellate instance, it is impossible to make a decision on the merits of the arguments of the complaint or the prosecutor's petition without checking them.

     If there is insufficient investigation of the circumstances of the case in terms of individual episodes qualified under the same article of the Criminal Code with other episodes of the charge, the appellate instance has the right to exclude these episodes from the verdict, leaving it unchanged in the rest.

    If the verdict is overturned on individual charges or against individuals, leaving it unchanged in the rest of the case, the court of appeal appoints a trial according to the rules of the court of first instance to consider the case in this part.

     If found guilty of committing several crimes, qualified independently, the court of appeal has the right, on grounds of lack of investigation, to cancel the sentence regarding the conviction of a person under one article and leave the sentence unchanged under other articles of the Criminal Code.

    If the verdict in a case considered with the participation of jurors is overturned, the case is sent for a new judicial review to the court of first instance for consideration from the stage of the preliminary hearing of the case or from the stage of the main trial.

    The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of its official publication).

The inconsistency of the court's conclusions with the actual circumstances of the case should be understood as errors in the assessment of evidence, the motivation of the decision, the substantiation of the charge by evidence unexplored in the trial, as well as when the information provided in the verdict contradicts the factual data established by the court.

    If, during the consideration of the case, the court of appeal recognizes the conclusions of the court as inconsistent with the factual circumstances of the case, it may bring them into line with the evidence in the case, if this does not worsen the situation of the convicted person.

    The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of its official publication).

When establishing the significant violations committed by the court of first instance, specified in part three of Article 436 of the CPC and entailing the unconditional cancellation of the verdict, the court of appeal is also obliged to consider on the merits the arguments of the complaints and petitions of the prosecutor on the evidence of the charges, the correctness of qualifications, punishment and other issues, drawing conclusions about their validity, as well as to verify the case in full regarding the observance of legality at all stages of legal proceedings.

     At the same time, it should be borne in mind that the violations of the criminal procedure law in the case do not prevent the court of appeal from deciding to overturn the illegal sentence and terminate the case on the grounds specified in part one of Article 35 and part one of Article 36 of the CPC.

    The footnote. Paragraph 18 as amended by the regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of official publication); amended in Kazakh, the text in Russian is not changed by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/11/2020 No. 6 (effective ten calendar days after the date of its first official publications).

When deciding to overturn a guilty verdict and dismiss a case on the grounds specified in part one of Article 35 and part one of Article 36 of the CPC, it should be borne in mind that such a decision can be made subject to a comprehensive, complete, objective investigation of the circumstances of the case.

    If the case against one of the convicts is sent for a new judicial review, and the correct resolution of the case depends on an investigation of the circumstances of the case concerning other convicts, then the court verdict is subject to cancellation in full.

    The footnote. Paragraph 19 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of its official publication).

It should be noted that, in accordance with articles 437, 442, and 662 of the CPC, when considering a case based on a complaint by the defense, improper application of the law by the court of first instance can serve as a basis for changing the verdict (resolution) only in cases where such a decision does not lead to a deterioration in the situation of the convicted person.

     A change in the sentence (resolution) in the direction of worsening the situation of the convicted person can take place only in cases where these grounds are indicated in the complaint or petition of the prosecutor of the prosecution. If the verdict (resolution) is appealed by the private prosecutor, the victims, their representatives, or the prosecutor's petition is brought by the prosecutor on other grounds, the court has no right to worsen the situation of the convicted person and go beyond the requirements contained in the complaint or petition of the prosecutor.

    Complaints from other participants in the process about changing the sentence due to the need to apply the law on a more serious crime or because of the leniency of the punishment cannot serve as a basis for changing the sentence to a worse one.

    The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of its official publication).

The application of the law on a more serious criminal offense should be considered cases when another provision of the criminal law (article, part, paragraph of the article) is applied within the scope of the charge, the sanction of which provides for a more severe punishment. When determining the greater or lesser severity of a crime, it is necessary to assess the size and type of criminal punishment provided for in the relevant article of the Criminal Code, as well as other circumstances of criminal significance.

     In accordance with the second part of Article 442 of the CPC, the court of appeal has the right to make decisions that worsen the situation of a convicted person only if, on these grounds, a petition has been filed by the prosecutor or a complaint filed by a private prosecutor, victims, or their representatives.

     If the court's verdict is changed on the grounds provided for in the first part of Article 442 of the CPC, the court of appeal shall issue a ruling.

     When applying the law on a more serious criminal offense within the scope of the charge, the court of appeal in accordance with paragraph 4) The first part of Article 431 of the CPC cancels the guilty verdict and decides on a new guilty verdict.

    The footnote. Paragraph 21 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/10/2022 No. 3 (effective from the date of the first official publication).

     21-1. In accordance with the second part of Article 440 of the CPC, an acquittal cannot be overturned solely on the grounds of a significant violation of the criminal procedure law specified in article 436 of the CPC, if the innocence of the acquitted person, the grounds for acquittal, or the essence of another decision rendered in favor of the defendant are not disputed.

     On the basis of paragraph 5) of the first part of Article 431 of the CPC, an acquittal may be overturned with a new acquittal if the court of appeal, after overturning the acquittal based on the results of the trial conducted according to the rules of the court of first instance, concludes that the defendant is innocent.

    The footnote. The regulatory resolution was supplemented by paragraph 21-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/10/2022 No. 3 (effective from the date of the first official publication).

If the convicted person is found guilty of committing a crime qualified under one article of the Criminal Code, and the court of appeal concludes that the actions of the convicted person should be qualified under two or more articles mitigating responsibility, he has the right to amend the sentence accordingly, with the imposition of punishment for a combination of crimes, the amount of which should not exceed the punishment imposed under the verdict of the court.

If, in connection with the reclassification of a crime, it is established that, with the correct application of the criminal law, the case was not to be initiated, but was to be terminated on the grounds provided for in part one of Article 35 of the CPC, the appellate instance, after reclassifying the act to the required article of the criminal law, must cancel the verdict and terminate the case.

    The footnote. Paragraph 23 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of its official publication).

In cases where the appellate instance comes to the conclusion that it is necessary to qualify an act under an article of the Criminal Code providing for a crime for which criminal prosecution is carried out in private or in a public-private manner, it decides on reclassification to the relevant article of the Criminal Code and appoints punishment for it only if there is a victim's application for criminal prosecution. In the absence of such a statement, the court's verdict is subject to cancellation, and the case is terminated on the grounds specified in paragraph 5) of the first part of Article 35 of the CPC.

    The footnote. Paragraph 24 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of its official publication).

When considering a case on appeal, in cases where the circumstances of the case are fully established, the court has the right to amend the verdict regarding the civil claim, while not only reducing but also increasing the amount of the penalty, if this is indicated in the complaint, the prosecutor's petition of the prosecution.

     A change in the qualification and scope of the charge due to an increase in the amount of the penalty is allowed within the limits of the charge supported by public or private prosecutors in the court of first instance.

The courts should bear in mind that, in accordance with articles 24, 426 and paragraphs 1) and 2) of the first part of Article 431 of the CPC, the grounds for changing the sentence that do not worsen the situation of the convicted person are not exhaustive.

     When establishing a violation of the rights and legitimate interests of convicted persons, the appellate instance has the right, in particular:

     - exclude from the verdict certain episodes of the charge that are not confirmed by the case materials, or do not contain elements of a criminal offense, or imputed in violation of the law.;

     - to cancel the verdict of the court regarding the conviction of a person on charges that have received independent qualifications, and to terminate the proceedings in this part, leaving the rest unchanged.;

     - to exclude an unnecessarily imputed article as a result of an erroneous assessment of what was done as an ideal combination of two criminal offenses, without canceling or changing the verdict of the court in the rest;

     - to reduce the amount of the basic punishment within the limits of the sanction of the article of the criminal law;

     - exclude the confiscation of property in full or in part, or any other additional measure of punishment;

     - instead of imprisonment, impose another less severe type of punishment specified in the sanction of the article.;

     - apply a suspended sentence;

     - impose a more lenient punishment than is prescribed by law for this criminal offense;

     - apply the amnesty act if there are grounds provided by law.;

     - to reduce the amount awarded in compensation of a civil claim, to dismiss the claim or to leave it without consideration;

    - to change the decision taken by the court of first instance on the fate of the material evidence, on the distribution of court costs, on the amount of the recovered amount to the Compensation Fund for Victims.

    The footnote. Paragraph 26 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of official publication); dated 03/10/2022 No. 3 (effective from the date of the first official publication).

The courts of appeal also have the right to decide on the application of a suspended sentence to pregnant women and women with young children, and men raising young children alone (Article 74 of the Criminal Code), on release from serving a sentence due to the expiration of the statute of limitations of the conviction (Article 77 of the Criminal Code), on the execution of the sentence if other outstanding sentences, unless this is resolved in the latest verdict (Article 60 of the Criminal Code), on the calculation of time in custody, as well as time spent in a medical institution (articles 62, 97, 98 of the Criminal Code) and to make other changes to the sentence.

    The footnote. Paragraph 27 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of its official publication); dated 12/11/2020 No. 6 (effective ten calendar days after the date of its first official publication).

Based on the powers provided for in article 442 of the CPC, the court of appeal, in the presence of a complaint from the victim, a private prosecutor, or a prosecutor's petition, has the right to impose a more severe punishment or apply additional punishment, if there are grounds to amend the verdict in terms of a civil claim, recovery of procedural costs and compulsory payment to the Victims Compensation Fund.

    The appellate instance has the right to make appropriate changes to the court's verdict regarding the cancellation of the improper application of the amnesty act, suspended sentence under the previous sentence, resolving the issue of awards, contraband items, state duty collection and others, if it establishes grounds that do not require investigation and this is indicated in the complaint by the private prosecutor, the victims, their representatives or in the prosecutor's petition., or if these changes do not worsen the convict's situation.

    The footnote. Paragraph 28 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/10/2022 No. 3 (effective from the date of the first official publication).

If, by the time the case is considered in the court of appeal, a new law has been adopted that is retroactive in accordance with Article 6 of the Criminal Code, the appellate instance is obliged to make appropriate changes to the verdict passed before the issuance of such a law.

    The footnote. Paragraph 29 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of its official publication).

When considering a complaint, a prosecutor's motion for acquittal, a decision to dismiss a case, or another decision in favor of the defendant, the court of appeal should keep in mind that their cancellation is permissible only when the prosecutor's complaint or motion raises the question of their illegality and unreasonableness.

     The filing of a complaint or the filing of a prosecutor's motion against some persons is not a ground for revoking a verdict (resolution) against others.

An acquittal, a decision to dismiss a case, or any other decision rendered in favor of the defendant may be overturned only at the request of the prosecutor or at the complaint of the victim or his representative, as well as the acquitted person who disagrees with the grounds for acquittal.

     The court of appeal may change the grounds for acquittal both if there is a complaint or a motion from the prosecutor in this regard, and on its own initiative, provided that the decision does not worsen the situation of the acquitted person.

     A change in the acquittal is also possible upon the complaint of the victim, who raises the issue of excluding defamatory formulations.

    The footnote. Paragraph 31 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 18 (for the procedure of entry into force, see paragraph 2).

In the event of the death of a convicted person after he or other participants in the process have filed an appeal or a prosecutor's petition, but before the case is considered on appeal, the court verdict is subject to cancellation and the proceedings are terminated in accordance with paragraph 11) of the first part of Article 35 and Article 439 of the CPC. The proceedings against the deceased may be continued only for the rehabilitation of the deceased.

     In the absence of grounds for rehabilitation of the deceased, the court of appeal indicates this in the descriptive and motivational part of the decision, and in the operative part sets out the decision to overturn the court's verdict and to terminate the proceedings in connection with the death of the convicted person. When establishing the innocence of a deceased convict, the decision should indicate the cancellation of the verdict and the termination of the case on the appropriate rehabilitative basis.

     A complaint filed for the rehabilitation of a deceased accused, the case against whom was terminated due to death during the preliminary investigation, may be considered by an appellate instance only in cases of appeal against a court decision issued in accordance with Article 109 of the CPC on the refusal to recognize him as a participant in the process.

    The footnote. Paragraph 32 as amended by the regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of official publication); amended in Kazakh, the text in Russian is not changed by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/11/2020 No. 6 (effective after ten calendar days after the date of its first official publications).

When making rulings, the courts of appeal must strictly follow the requirements of article 443 of the CPC.

     In the introductory part of the resolution, in addition to the data listed in the second part of Article 443 of the CPC, it is necessary to indicate the persons who appealed or brought the prosecutor's motion against the verdict (resolution).

     The descriptive and motivational part must meet the requirements of the third part of Article 443 of the CPC, contain an exhaustive answer to each argument of the complaint or petition of the prosecutor, reflect the progress and results of the examination of the case, the grounds and motives of the court's decision with reference to the law, contain specific answers on the issues of evidence or lack of evidence of the charge, the qualification of the crime and the measure of punishment. If the complaint or petition of the prosecutor is dismissed, the court of appeal is obliged to provide convincing grounds in the decision refuting the arguments of the complaint or petition of the prosecutor. When canceling or changing a sentence, it should be indicated why the evidence underlying the verdict was found to be insufficient, what violations of the law were committed, and how they affected the essence of the sentence.

     The operative part sets out the substance of the decision and reflects each change made to the verdict, indicating the procedure and timing of the appeal. The wording of the operative part should contain one of the decisions set out in the first part of Article 431 of the CPC.

    The decision of the appellate instance to revoke or amend a private ruling issued in a case is formalized in a separate ruling, except in cases where the private ruling sets out the circumstances relating to the merits of the case.

    The footnote. Paragraph 33 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 1 (effective from the date of its official publication); dated 12/11/2020 No. 6 (effective ten calendar days after the date of its first official publication).

The passing of appeal verdicts and rulings must be carried out in compliance with the rules of article 444 of the CPC.

    After the return of the judge (judges) from the conference room in the courtroom, the introductory and operative parts of the judicial act are announced, then the presiding judge explains the substance of the decision, which is noted in the minutes of the court session.

     The verdict and the resolution come into legal force from the moment of announcement. In accordance with the third part of Article 477 of the CPC, doubts and ambiguities arising during the execution of an appeal verdict are considered by the court that issued the judicial act.

     The appeal for the execution of the verdict and the decision of the appellate instance is carried out in accordance with the requirements of Article 445 of the CPC.

    The footnote. Paragraph 34 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/10/2022 No. 3 (effective from the date of the first official publication).

The retrial of the case in the appellate instance is carried out in a general manner. In the event that the newly passed sentence or resolution contradicts the earlier verdict or decision of the appellate instance, the chairman of the regional or equivalent court, in accordance with part three of Article 446 of the CPC, submits to the cassation instance a submission on the elimination of the contradictions that have arisen.

    The footnote. Paragraph 35, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 18 (for the procedure of entry into force, see paragraph 2); dated 04/10/2015 No. 1 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective ten calendar days after the date of its first official publication).

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 comes into force from the date of its official publication.

Chairman

The Supreme Court

Republic of Kazakhstan

Judge

The Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

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