On the practice of courts applying legislation regulating criminal proceedings involving jurors
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated August 23, 2012 No. 4.
In order to ensure the right of the accused to have their case heard by a jury and the correct and uniform practice of applying the legislation governing jury proceedings, the plenary session of the Supreme Court of the Republic of Kazakhstan
Decides:
Until January 1, 2023, specialized inter-district criminal courts, specialized inter-district military criminal courts (hereinafter referred to as courts) with the participation of jurors consider criminal cases of crimes for which the criminal law provides for life imprisonment, as well as in cases of crimes provided for in articles 125 (part three), 128 (part four), 132 (part five), 135 (part four) of the Criminal Code of the Republic of Kazakhstan (hereinafter – of the Criminal Code), with the exception of cases of: murders committed in an emergency and during mass riots; military crimes committed during wartime or combat situations, especially serious crimes against the sexual integrity of minors and 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) and 299 (part four) of the Criminal Code.
Since January 1, 2023, courts with the participation of jurors have jurisdiction over cases of particularly serious crimes, as well as cases of crimes provided for in articles 125 (paragraph 1) of the third part), 128 (paragraph 1) part four), 132 (part five), 135 (paragraph 1) parts four), 160, 163, 164 (part two), 168, 380-1 (paragraph 6) of part two) of the Criminal Code, with the exception of cases of: murders committed in an emergency situation and during mass riots; crimes against the peace and security of mankind, the foundations of the constitutional order and the security of the state; on terrorist and extremist crimes; military crimes committed in a wartime combat situation or crimes committed as part of a criminal group, on especially serious crimes against the sexual integrity of minors.
In the case when a person is accused of committing crimes provided for in several articles of the Criminal Code, one of which is a crime under the jurisdiction of a court with the participation of jurors, as well as if several people are accused in a criminal case under the jurisdiction of a court with the participation of jurors, and at least one of them files a motion for consideration of the criminal case. with the participation of jurors, the consideration of a criminal case against them is carried out according to the rules provided for in section 14 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC).
The footnote. Paragraph 1 - as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2022 No. 10 (effective from the date of the first official publication).
In accordance with the third part of Article 634 of the CPC, the suspect and the accused have the right to file a motion for consideration of the case by a court with the participation of jurors upon presentation of all the case materials for review, as well as in the subsequent period, including at a preliminary hearing in court, but before the court decides on the appointment of the main trial..
In accordance with article 297 of the CPC, the suspect or the accused has the right to file a motion for consideration of the case with the participation of jurors both orally and in writing.
If the suspect or the accused files a motion to hear the case with the participation of jurors orally, the person conducting the pre-trial investigation shall enter its contents into the protocol of familiarization with the case materials. The receipt of a written request is indicated in the protocol and the request is attached to the case.
The petition filed when sending the criminal case to the prosecutor and bringing the accused to trial is submitted by the suspect, the accused in writing and immediately sent to the court, which will consider the criminal case.
The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
Since holding a preliminary hearing in cases of crimes specified in the first part of Article 631 of the CPC, regardless of the presence or absence of a motion by the suspect or the accused to consider the case with the participation of jurors is mandatory, during its conduct, if there is such a motion, the judge asks the defendant whether he supports his motion. In the absence of such a motion, the judge explains to the defendant about his right to file a motion for consideration of the case with the participation of jurors directly at this court session.
If the defendant confirms his petition or if such a petition was filed during the preliminary hearing, the judge is obliged to explain to the defendant the legal consequences of the consideration of a criminal case by a court with the participation of jurors, including the specifics of appealing judicial acts.
The decision to grant a motion for consideration of a criminal case with the participation of jurors is indicated by the judge in the decision issued following the preliminary hearing of the case.
The judge has no right to refuse to satisfy the petition for consideration of the case with the participation of jurors.
The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
If the prosecutor changes the charges during the preliminary hearing, entailing a change in jurisdiction, in accordance with part six of Article 321 of the CPC, the case must be sent to the prosecutor for resubmission of the indictment and referral of the case according to jurisdiction.
In the event that the public prosecutor changes the charges during the trial to mitigate them or partially dismisses the charges, the judge decides to continue the trial of the case on a new charge, with the participation of jurors.
In the case of a prosecutor's complete refusal to charge at the trial stage, in accordance with article 649 of the CPC, the presiding judge shall release the jurors from participation in the trial and single-handedly issue a decision to terminate the criminal case.
The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
In the decision on the appointment of the case to the main trial with the participation of jurors, the judge indicates the total number of candidates for jurors to be summoned to court in such a way that there are at least twenty-five who appeared.
By order of the judge, in accordance with article 638 of the CPC, the secretary of the court session conducts a preliminary random selection of candidates for jurors from the unified and reserve lists available in the court.
In order to ensure the timely appearance of candidates for jurors, the application of liability measures, if necessary, to persons who prevent candidates for jurors from fulfilling their duties, as well as to candidates for jurors if they evade appearing in court without a valid reason and resolving other issues related to the organization of the trial., The courts must comply with the requirements of the fifth part of Article 638 of the CPC on the delivery of notices to candidates for jurors indicating the date and time of arrival at the court at least seven days before the start of the court session.
If the number of candidates for jurors is less than twenty-five, their number shall be replenished to the specified number by the secretary on the order of the presiding judge from a single list.
The court hearing on the selection of jurors from among the candidates who appeared is conducted in compliance with the requirements of Articles 350 to 363 of the CPC, as well as articles 639 to 644 of the CPC.
If the information about the identity of a candidate for juror indicated in the list compiled by the local executive body does not match with the passport data of the person who appeared, this person is excluded by the presiding judge from the list of candidates for jurors and is exempt from participation in the formation of the jury panel.
In accordance with paragraph 5 of Article 11 of the Law of the Republic of Kazakhstan dated January 16, 2006 No. 121 "On Jurors" (hereinafter referred to as the Law on Jurors), a candidate for juror may be held administratively liable for evading court appearance without a valid reason under article 655 of the Code of Administrative Offences of the Republic of Kazakhstan (hereinafter referred to as the Law on Jurors). – Administrative Code). An official who prevents candidates for jurors from fulfilling their duties is subject to criminal liability under article 436 of the Criminal Code.
The footnote. Paragraph 5, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
The preparatory part of the court session with the participation of jurors is conducted in accordance with the procedure established by Chapter 43, and taking into account the requirements of articles 639 to 644, part one of Article 645, Article 646 of the CPC, while the selection of jurors from among candidates is carried out in a closed court session.
Before the selection of jurors begins, the presiding judge is obliged to explain to the parties their rights provided for in articles 64, 65, 71 to 77, part four of Article 639, article 642, part two of Article 643, Article 651, part two of Article 653 of the CPC.
To draw the courts' attention to the fact that, in accordance with part five of Article 639 of the CPC, the presiding judge (hereinafter referred to as the judge) explains to candidates for jurors their duties to truthfully answer questions asked to them and provide other information about themselves and their relationships with other participants in criminal proceedings, as well as their questioning about the existence of circumstances preventing participation as jurors. participation of jurors in the consideration of a criminal case is a prerequisite for the formation of a panel of jurors and the legal composition of the court.
At the same time, the judge is obliged to explain to the candidates for jurors that their concealment of information that prevents them from fulfilling their duties as jurors, if they are included in the panel and participate in the consideration of the case, is the basis for the cancellation of the court verdict.
At the same time, during the interview of candidates for jurors, the judge is obliged to take measures to ensure that the questions asked by the parties related to clarifying the circumstances that may hinder the participation of a candidate for jurors in the consideration of this criminal case are clear and specific and should not entail restrictions on the rights of candidates for jurors for reasons, specified in paragraph 2 of Article 10 of the Law "On Jurors" (on grounds of origin, attitude to religion, beliefs, etc.).
The footnote. Paragraph 6, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
If the circumstances specified in part three of Article 640 of the CPC are established during the interview of a candidate for juror, the judge has the right to release the juror from his duties if there is a written or oral statement about this by the candidate for juror.
When selecting jurors from among candidates, the presiding judge, as well as the parties, in accordance with part four of Article 639 of the CPC, may ask the candidate questions relevant to the formation of the jury panel. The order of questions is determined by the chairman.
For the purpose of non-disclosure of personal information, a candidate for a jury has the right to respond confidentially to the presiding judge.
If there are facts that may form a biased opinion about judicial or law enforcement agencies or that raise reasonable doubts about possible bias, a candidate for a jury is relieved of his duties as a juror. At the same time, the courts should take into account that the basis for the release of a candidate for juror from his duties may not be any case of bringing him to administrative responsibility, but only the fact of administrative arrest in court.
The footnote. Paragraph 7, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
In accordance with paragraph 4 of Article 13 of the Law "On Jurors" and part five of Article 645 of the CPC, a judge may, at any stage of the trial, suspend a juror from further participation in the case if he fails to comply with the restrictions established by part four of Article 647 of the CPC.
In accordance with part seven of Article 639 of the CPC, recusals and recusals filed with candidates for jurors and other issues related to their release, as well as issues related to the removal of a candidate for jurors from participation in the consideration of the case in accordance with part six of Article 645 of the CPC, are resolved by the judge alone without removal to the conference room in the presence of the parties, what is recorded in the minutes of the court session.
The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
8-1. The secretary of the court session has the right to discuss issues of the organization of the trial with the jurors outside the court session.
The footnote. The regulatory resolution was supplemented by paragraph 8-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
The specifics of judicial investigation in a court with the participation of jurors are determined by article 650 of the CPC.
In the presence of jurors, all factual data established in the case must be examined, with the exception of the restrictions established by parts five and six of Article 650 of the CPC.
With this in mind, as well as the provisions of Article 650 of the CPC, the judge must ensure that the trial is conducted only within the limits of the charges brought against the defendant, and also take into account that the parties during the trial cannot mention circumstances that are not subject to consideration by a jury, and refer to evidence excluded from the proceedings.
When these circumstances are established, the judge interrupts such statements by the parties and explains to the jurors that they should not take these circumstances into account when passing a verdict.
In the event of repeated violations by the parties, despite the judge's warning, of the procedure for examining inadmissible evidence, as well as circumstances that cannot be examined in the presence of jurors, the judge may bring them to administrative responsibility for showing contempt of court in accordance with Article 653 of the Administrative Code.
The refusal of the parties to examine evidence that was not recognized by the court as inadmissible, as well as those evidence that may be essential to the outcome of the case, should be regarded as a restriction of their rights, that is, as a violation of the criminal procedure law, entailing the cancellation of the verdict in accordance with article 662 of the CPC.
Upon receipt of a motion from the defendants accused of committing crimes of minor, moderate gravity or serious crimes to conclude a procedural agreement on the admission of guilt, the presiding judge performs the actions provided for in Article 628 of the CPC. If no procedural agreement on the admission of guilt has been concluded, the case continues in the same manner.
Upon receipt of a written request from the defendant to conclude a procedural cooperation agreement, the presiding judge, in accordance with part four of Article 619 of the CPC, sends the request to the prosecutor to perform the actions provided for in part six of Article 619 of the CPC. If, at the same time, it is impossible to continue the trial, the court, in accordance with the first part of article 341 of the CPC, issues a decision to postpone the trial of the case for a certain period.
The footnote. Paragraph 9, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
Taking into account that during the trial, evidence provided only by the parties to the prosecution and defense is examined, and in accordance with the requirements of the law on the court's preservation of objectivity and impartiality during the trial, the court must ensure that the protocols of investigative actions, expert opinions, protocols of testimony of victims, witnesses and other documents attached to the case are read out by the party, who filed a motion to do so.
Procedural decisions are not subject to examination in the presence of jurors. – the decision on the qualification of the suspect's act, the decision of the investigating judge issued in accordance with Article 106 of the CPC, as well as issues and petitions aimed at ensuring the conditions of the trial, such as the forcible bringing of victims, witnesses, challenges to participants in the process, issues related to preventive measures, and other legal issues not included in the procedure, are not subject to discussion and resolution. within the competence of the jurors and capable of causing their prejudice against the defendant and other participants in the process.
The statements of the defendants about the physical or mental influence exerted on them during the preliminary investigation, which affected the content of the evidence obtained, are not subject to consideration in the presence of jurors.
Paragraph 10 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).
By virtue of part six of Article 650 of the CPC, data on the identity of the defendant are examined with the participation of jurors only to the extent that they are necessary to establish certain elements of the crime of which he is accused.
With the participation of jurors, the facts of a previous criminal record, as well as other data characterizing the defendant, which may cause their prejudice, are not investigated.
If the defendant is found to be insane during the trial, the judge, in accordance with the requirements of article 659 of the CPC, issues a decision to terminate the criminal case in accordance with paragraph 1 of Article 657 of the CPC and individually considers, in accordance with the procedure provided for in section 11 of the CPC, the issue of applying compulsory medical measures to the insane.
The footnote. Paragraph 11, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication).
In accordance with article 637 of the CPC, one of the features of decisions made following the results of a preliminary hearing when appointing a court session with the participation of jurors is the exclusion from the case file of factual data deemed inadmissible as evidence. The judge decides on the exclusion of inadmissible evidence on the basis of the petition of the parties or on his own initiative.
The court recognizes the evidence as inadmissible if it was obtained in violation of the law when establishing the circumstances specified in Article 112 of the CPC.
According to the fourth part of Article 636 of the CPC, if necessary, the case materials may be announced at a preliminary hearing to verify their admissibility as evidence.
The procedure for considering a petition for declaring evidence inadmissible is regulated by part three of Article 362 of the CPC and paragraph 5 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 4 "On certain issues of evaluating evidence in criminal cases." According to these norms, the court, after listening to the opinion of the parties to the trial, must consider each submitted request for recognition of evidence as inadmissible and issue a reasoned decision on its satisfaction or refusal.
The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
When considering a case with the participation of jurors, the parties may not, without the permission of the judge, mention to the jurors the presence of evidence in the case that was previously excluded by a court decision.
A judge, guided by articles 648 and 650 of the CPC, is obliged to take the necessary measures to exclude the possibility of familiarizing jurors with inadmissible evidence, as well as investigating issues outside their competence.
The judge should not acquaint the jury with factual data that is unacceptable as evidence. If during the trial factual data that is inadmissible as evidence in accordance with Article 112 of the CPC is discovered, the presiding judge is obliged, in the presence of the jurors, to decide whether to exclude them from the list of such evidence, and in the case of an examination of such evidence, to recognize them as null and void, and to explain to the jurors that they didn't take them into account when making decisions.
If, during the court session, the defendant declares that illegal methods were used against him during the preliminary investigation (coercion to testify, torture), the judge, in the absence of jurors, examines the defendant's testimony and interrogates the persons indicated by him. If the facts about the use of illegal investigative methods are not confirmed, the court notifies the jurors about it.
If the facts about the use of illegal methods during the preliminary investigation are confirmed, the judge recognizes the evidence obtained in this way as inadmissible.
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 from the date of the first official publication).
The debate of the parties in court with the participation of jurors in accordance with article 651 of the CPC consists of two parts and is conducted taking into account the specifics of the case under this form of legal proceedings.
Since the judge is responsible for ensuring compliance with the procedure of the parties' debates, he must be guided by the requirements of the law on holding debates only within the limits of issues to be resolved by the jury.
In the event that the parties in the first part of the debate, in support of their position, refer to evidence that was declared inadmissible or not examined at the court session, or to circumstances that must be resolved in the second part of the debate, the judge, in accordance with part three of article 651 of the CPC, is obliged to interrupt the speech of such a participant in the process and explain to the jurors that they do not These circumstances should be taken into account when making a decision in the conference room.
The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
To draw the courts' attention to the fact that, in accordance with the first part of Article 653 of the CPC, jurors are removed from the courtroom during the discussion and formulation of issues.
According to the second part of Article 653 of the CPC, the parties have the right to comment on the content and wording of issues, as well as to make suggestions on raising new issues. If the parties submit oral comments on the content and wording of questions and suggestions for raising new questions, these comments are reflected in the minutes of the court session. If the comments and suggestions were submitted by the parties in writing, they are attached to the case file, which is noted in the minutes of the court session.
The judge, taking into account the comments and suggestions of the parties, having finally formulated the questions in the conference room, enters them into the question sheet and signs it. After returning to the courtroom, the judge reads out the question sheet in the presence of the parties and the jury.
In accordance with article 653 of the CPC, regardless of the number of defendants in the case, one questionnaire is drawn up.
The judge has no right to include in the questionnaire questions that were not the subject of discussion by the parties.
The footnote. Paragraph 15, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication).
In accordance with the first part of Article 654 of the CPC, the following three main questions are raised for each of the acts of which the defendant is accused.:
has it been proven that the act took place;
Has it been proven that the defendant committed this act?;
is the defendant guilty of committing this act?
In accordance with the tenth part of Article 656 of the CPC, issues requiring jurors to legally qualify an act cannot be raised separately or as part of other issues.
Based on this, it is unacceptable for jurors to pose questions using specific legal terms, such as murder, murder with extreme cruelty, murder for hooligan or mercenary motives, murder in a state of sudden intense mental agitation, murder in excess of the limits of necessary defense, rape, robbery, etc.
The issues to be resolved by the jury should be formulated in terms that they understand.
The footnote. Paragraph 16, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication).
If the defendant is accused of committing an unfinished crime (attempted murder), the judge must clearly put before the jury the questions provided for in article 654 of the CPC, including the evidence of the circumstances by virtue of which the act was not completed. At the same time, this question should contain a description of the actual reason that deprived the defendant of the opportunity to carry out his intentions (the blade of the knife broke when striking, the victim managed to knock the weapon out of the defendant's hands, the victim was provided with qualified medical care in a timely manner, etc.), and not just a reference to it.
When raising specific questions about circumstances that reduce the degree of guilt or lead to the release of the defendant from criminal liability, it is unacceptable to raise questions about the guilt of other persons who have not been brought to criminal responsibility in the questionnaire.
Courts should keep in mind that when raising private issues that make it possible to establish the guilt of a defendant in committing a less serious crime, it is necessary to comply with the requirement provided for in the second part of Article 654 of the CPC, if this does not violate the defendant's right to defense and does not worsen his situation.
In addition, the wording of the questions should not allow for the possibility, when answering them, of finding the defendant guilty of committing a more serious act for which he was not charged or was not supported by the public prosecutor or the victim.
In the case of charges of committing a crime in a group of persons, in order to ensure that the content of the questions when answering them does not prejudice the question of the guilt of other defendants, in accordance with part three of Article 654 of the CPC, the issues to be resolved are raised in relation to each defendant separately.
The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication). 18. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication). 19. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
In accordance with the requirements of Article 656 of the CPC, the decision on the issues raised is made in the conference room only by the judge and the jury. The presence of other persons in the conference room, including alternate jurors, is the basis for the cancellation of a verdict passed by a court with the participation of jurors.
For voting, the judge and the jury receive one blank ballot for each question.
At the same time, the judge, considering that, in accordance with the requirements of Articles 655 and 656 of the CPC, voting on both basic and additional issues is conducted in secret, must ensure that the legality of the secret ballot is respected.
The judge and each juror, ensuring compliance with the requirements of the law on voting secrecy, in conditions that exclude access for other voters, write their answer in the ballot with the word "yes" or "no" with a mandatory explanatory word or phrase that reveals the essence of the answer ("yes, proven", "no, not proven", "yes, guilty," "no, not guilty."), after which he puts it in the trash. At the end of voting on the first question, the chairman opens the ballot box and counts the votes with the participation of the jury.
The chairman writes down the result of the vote count opposite the first question indicated on the question sheet with an indication of the answer and a mandatory explanatory word or phrase that reveals the essence of the answer ("yes, proven", "no, not proven").
In this way, voting is carried out on all main and additional issues.
In accordance with part fourteen of Article 656 of the CPC, a question sheet with the answers of the judge and jurors is signed by each of them, after which it is sealed in an envelope with the inscription "question sheet" and in this form is attached to the case file.
The footnote. Paragraph 20, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
If the inability of any of the jurors to participate in the court session is revealed in the conference room, then in accordance with part four of Article 645 of the CPC, the judge and the jurors must leave the conference room and enter the courtroom. In this case, the judge replaces this juror with a substitute juror in the order in which the tickets with the names of the substitute jurors were removed from the urn, after which he is removed to the conference room.
If the possibilities of replacing retired jurors with replacement jurors are exhausted, the judge, in accordance with part three of Article 645 of the CPC, declares the trial invalid and returns the trial to the stage of preliminary random sampling of candidates for jurors in accordance with Article 638 of the CPC.
The footnote. Paragraph 21 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
According to parts ten and eleven of Article 656 of the CPC, a judge, without the participation of a jury, resolves questions about the application of criminal law to a defendant's criminal act and the qualification of his act under the article of the Special Part of the Criminal Code.
Issues stipulated by paragraphs 5), 6). 7), 8) and 14) of the first part of Article 390 of the CPC, the judge resolves by open voting with the participation of jurors.
If the majority of the voters voted "yes", the decision is considered accepted. It should be borne in mind that a penalty in the form of imprisonment for a term of more than fifteen years may be imposed if eight or more voters voted for such a decision.
An exceptional measure of punishment, the death penalty or life imprisonment, can be imposed only if there is a unanimous decision of the judge and the jury.
The footnote. Paragraph 22 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
In accordance with article 657 of the CPC, the court, based on the results of consideration of a criminal case in a court with the participation of jurors, issues a guilty or acquittal verdict, or in cases provided for in article 343 of the CPC, a decision to dismiss the case.
According to paragraph 2) of Article 657 of the CPC, an acquittal is imposed in cases where a court with the participation of jurors has given a negative answer to at least one of the three main questions specified in the first part of Article 654 of the CPC.
If, during the main trial, the circumstances provided for in part one of Article 35 of the CPC are established, as well as if the prosecutor refuses to charge due to the absence of an event or corpus delicti, due to the lack of evidence of the defendant's participation in the crime (part seven of Article 337 of the CPC), the judge, after listening to the opinions of the remaining parties, shall release the jurors from further to participate in the court session and, in accordance with articles 343 and 649 of the CPC, issues a decision to terminate the criminal case.
The footnote. Paragraph 23 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
When passing a verdict in a court with the participation of jurors, the judge is guided by the rules provided for in Chapter 46 of the CPC, taking into account the specifics provided for in the first part of Article 658 of the CPC.
The descriptive and motivational part of the acquittal sets out the essence of the charge and makes reference to the decision of the court with the participation of jurors as the basis for acquittal.
In addition, in the descriptive, motivational and resolute part of the acquittal, in addition to referring to the decision of the court with the participation of jurors, the judge needs to specify the grounds for acquittal in accordance with the answers of the panel of jurors to the three main questions posed to them.
If the answer to the first question about the evidence of the event (whether the act took place) is negative, the defendant must be acquitted in the absence of the crime event.
If the answer to the first question is positive and the answer to the second question is negative about the evidence of involvement in the commission of a crime, the defendant is acquitted for the lack of evidence of his participation in the commission of a crime.
If the answer to the first two questions is positive and the third question is negative, the defendant must be acquitted for the lack of corpus delicti in his actions.
The acquittal also sets out the decision on the civil claim, the procedural costs, and the fate of the physical evidence.
The footnote. Paragraph 24 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
In accordance with paragraph 3) of the first part of Article 658 of the CPC, the descriptive and motivational part of the conviction must contain a description of the criminal act of which the jury found the defendant guilty, the article of the Criminal Code according to which the criminal act should be qualified, as well as the motives for sentencing and the justification of the court's decision in relation to other issues (in civil the lawsuit, the fate of the physical evidence, etc.).
The footnote. Paragraph 25 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
In accordance with the requirements of Chapters 48 and 49 of the CPC, the review of a verdict that has not entered into legal force, handed down by a court with the participation of jurors, in case of appeal, is carried out by an appellate instance consisting of at least three judges.
The grounds for the cancellation or amendment of a verdict passed by a court with the participation of jurors are specified in paragraphs 1 to 5 of the second part of Article 662 of the CPC.
The footnote. Paragraph 26, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication).
In case of cancellation of the verdict passed by the court with the participation of jurors, with the referral of the case for a new judicial review from the stage of the main trial, the case is considered with the participation of jurors.
If the verdict is overturned and the case is sent for a new judicial review from the preliminary hearing stage, then at this stage all issues provided for in Article 321 of the CPC are resolved, including the consideration of the case with the participation of jurors.
The footnote. Paragraph 27 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
To draw the courts' attention to the fact that an acquittal by a jury cannot be overturned by an appellate court, except in cases of violations of the criminal procedure law that limited the right of the prosecutor, the victim or his representative to provide evidence, as well as those provided for in paragraph 5) of the second part of Article 662 of the CPC, namely, which affected or they could have influenced the decision of the judicial verdict, made by the judge during the formation of the jury panel, the discussion of issues, which are not subject to discussion in the presence of jurors, the formulation of issues to be resolved by jurors, the conduct of judicial debates, including the unjustified exclusion of admissible evidence.
The footnote. Paragraph 28 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan shall review in cassation sentences and rulings rendered in cases considered with the participation of jurors on the grounds provided for in paragraph 1 of part one and part two of Article 485 of the CPC, or in connection with the improper application of the norms of the General and Special parts of the Criminal Code when sentencing.
A review of a conviction, as well as a court decision in cassation due to the need to apply the criminal law on a more serious crime due to the leniency of the sentence or on other grounds leading to a deterioration in the situation of the convicted person, as well as a review of an acquittal verdict or a court decision to terminate a criminal case are not allowed.
The footnote. Paragraph 29 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). 30. 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).
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
B. Beknazarov
Judge of the Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
D. Nuralin
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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