On the practice of making private judgments by courts in criminal cases
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 11.
The footnote. The entire text of the resolution is amended in the official language, the text in Russian is not changed by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 11/25/2016 No. 10.
An analysis of the practice of issuing private judgments by the courts of the Republic has shown that, along with establishing the causes and conditions that contributed to the commission of offenses, they have a positive impact on improving the activities of the bodies of inquiry and preliminary investigation, prosecutorial supervision and judicial practice, as well as on the formation of citizens' respect for the law.
In order to develop a uniform practice of issuing private judgments, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
When considering criminal cases, courts should take into account that, according to part 2 of Article 8 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the procedure established by law for criminal proceedings should provide protection from unjustified charges and convictions, from unlawful restrictions on human and civil rights and freedoms, contribute to strengthening law and order, and prevent crimes., the formation of a respectful attitude towards the law.
In this regard, private court rulings should serve as an effective tool for upholding the rule of law, recognizing the primacy and inviolability of human rights and freedoms, preventing crimes and other offenses, uncovering and eliminating deficiencies in the activities of government agencies, officials and business entities.
Courts should not disregard violations of the norms of the procedural law committed by the bodies of inquiry, investigation, and prosecutors, which resulted in infringement of the constitutional rights and legitimate interests of citizens. In such cases, the courts should issue private rulings, indicating the specific officials who allowed them.
The list of grounds for issuing private rulings, specified in article 405 of the CPC, is not exhaustive, and therefore the courts have the right to respond to other facts: disruptions of trials, disrespect for the court, violation of deadlines by the bodies of inquiry and investigation.
The court may also issue a private decision of an incentive nature.
If violations of the law are found during the main trial that require immediate elimination, the court, in accordance with article 344 of the CPC, has the right to interrupt the proceedings and issue a private ruling in the conference room, which is immediately announced in the courtroom and sent for execution.
The footnote. Paragraph 3, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04.04.2013 No. 2 (effective from the date of official publication); dated 24.12.2014 No. 4 (effective from the date of official publication); dated 11.12.2020 No. 6 (effective from the date of the first official publication).
In accordance with part 5 of Article 23 of the CPC, the court is not a body of criminal prosecution, does not act on the side of the prosecution or defense, and does not express any interests other than the interests of law, therefore, if the causes and conditions that contributed to the commission of the crime were the result of an action or omission of an official or other person that contain signs However, he has no right to raise the issue of bringing them to criminal responsibility in a private decision, but can only bring this fact to the attention of the authorities responsible for resolving these issues.
In accordance with parts 4 and 5 of Article 53 of the CPC, the courts of first instance, appeal and cassation instances, upon establishing the circumstances specified in Article 405 of the CPC, issue a private decision, which is executed in accordance with part 6 of Article 471 of the CPC.
The footnote. Paragraph 5 of the wording of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 10.
5-1. When exercising the powers provided for in Article 55 of the CPC, the investigating judge has the right to make a private decision on the grounds specified in part 6 of Article 56 of the CPC. At the same time, the investigating judge should not prejudge issues that may be the subject of judicial review when resolving a criminal case on its merits, including making conclusions about the evidence or lack of proof of guilt, about the relevance, admissibility, reliability and sufficiency of the evidence collected in the case.
The footnote. The resolution was supplemented by paragraph 5-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 10.
5-2. At the pre-trial stage of the criminal process, the investigating judge, when exercising his powers and identifying violations and illegal restrictions of citizens' rights and freedoms guaranteed to them by the Constitution of the Republic of Kazakhstan and the laws of the Republic of Kazakhstan, as well as when establishing the facts of illegal restrictions and other violations of legally protected interests of organizations, within the framework of judicial control, issues a private resolution on the elimination and resolution of the issue of liability of persons who violated the law.
The footnote. The resolution was supplemented by paragraph 5-2 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 10.
The issuance of a private ruling by a court of first instance is not an obstacle to the issuance of a private ruling by courts of higher instances when there are other circumstances in the case that require such a response.
A private decision must be lawful, justified and based on comprehensively, fully and objectively investigated circumstances of the case, as in accordance with part 6 of Article 405 of the CPC, it is a binding document with legal consequences.
The courts have no right to indicate in private rulings circumstances that cast doubt on the legality and validity of the decision.
A private resolution should not contain general formulations and phrases. It indicates the specific violation of the law, the persons who committed them, the reasons and conditions identified by the court that contributed to the commission of a crime or other offense, as well as the evidence on which the court's conclusions are based. A private resolution may not provide instructions or recommendations on issues of production activities that fall within the exclusive competence of the relevant body or organization.
Having established the fact that the victim, witness, translator, expert, specialist knowingly gave false testimony, which received an appropriate assessment in the judicial act, as well as the forgery of documents, the court also has the right to reflect its conclusions about the unreliability of these testimonies and the forgery of documents in a private decision, sending it to the prosecutor for appropriate action.
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 part 1 of Article 405 of the CPC, private decisions must be made in a conference room and only in the case that is being considered directly in court, and it may not contain information and facts from another case.
The operative part of the resolution should specify the time and procedure for appealing it and submitting a petition by the prosecutor.
Upon returning from the consultation room, the text of the private decision is announced by the court in full, which must be indicated in the minutes of the main trial, if it is made on paper.
If the text of a private resolution is large, the chairman has the right to announce only the introductory and operative parts of the resolution.
The footnote. Paragraph 8, 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 11/25/2016 No. 10; dated 12/11/2020 No. 6 (effective from the date of the first official publication).
Private decisions may be appealed (petitions filed by the prosecutor) in the manner and within the time limits provided for the appeal (petition filed by the prosecutor) of the judicial act rendered on the merits of the case. When determining the time limit for appealing or filing a petition by the prosecutor of a private decision, one should proceed from part 2 of Article 422 of the CPC, according to which a private complaint, a prosecutor's petition against a court decision of the first instance by the persons specified in Article 414 and in part 3 of Article 414 of the CPC, are filed within fifteen days from the date of its issuance, and the convicted, to those in custody – within the same period from the date of delivery of a copy of the private resolution to him.
Persons who are not parties to the case may also appeal against a private ruling if their interests are directly affected by it.
Persons who have become aware of a private ruling against them upon its entry into force have the right to apply to the court that issued the private ruling with a motion to restore the time limit for appeal.
The footnote. Paragraph 9, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 21 (for the procedure of entry into force, see paragraph 2); dated 06/25/2010 No. 13 (for the procedure of entry into force, see paragraph 2); dated 12/24/2014 No. 4 (effective from the date of official publication); dated 12/11/2020 No. 6 (effective effective from the date of the first official publication).
Excluded by the Resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).
10-1. A cassation petition or protest on the grounds provided for in Article 485 of the CPC may be filed against private decisions issued by lower authorities, with exceptions specified in Article 484 of the CPC.
The footnote. The resolution was supplemented by paragraph 10-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 10.
The appellate and cassation instances, considering the case on the complaint or petition of the prosecutor or the protest received against the decision of the court of a lower instance rendered on the merits of the case, proceeding from the requirements of Article 24 of the CPC and part 3 of Article 426, part 1 of Article 484 of the CPC, have the right to consider the legality and validity of a private decision and in the absence of a complaint or petition against it prosecutor's office or protest.
The footnote. Paragraph 11, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 13 (for the procedure of entry into force, see paragraph 2); dated 12/24/2014 No. 4 (effective from the date of official publication); dated 11/25/2016 No. 10; dated 12/11/2020 No. 6 (effective from the date of the first official publication).
The annulment of a court decision rendered on the merits of a case does not in all cases entail the annulment of a private decision.
Along with the annulment of a court decision, a private decision may also be annulled if it concerns a court decision and case materials that are subject to evaluation and research during a new investigation of the case or court proceedings.
In accordance with article 471 of the CPC, a private decision of the court of first instance enters into force and is enforced upon expiration of the time limit for appeal or petition by the prosecutor, and in the case of a complaint or petition by the prosecutor, upon consideration of the case by a higher court.
In accordance with part 3 of Article 444 of the CPC, the decision of the appellate instance comes into force from the moment its full text is announced.
The footnote. Paragraph 13, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 13 (for the procedure of entry into force, see paragraph 2); dated 12/24/2014 No. 4 (effective from the date of official publication); dated 11/25/2016 No. 10; dated 12/11/2020 No. 6 (effective from the date of the first official publication).
A private resolution may be sent directly to the person in whose actions violations of the law have been established, to another official (head of the organization), who, by virtue of his official position, may and is obliged to eliminate the causes and conditions identified by the court that contributed to the commission of the crime, or to the person authorized to raise questions of responsibility of specific persons who committed violations of the law.
In order to ensure the effectiveness of private rulings, courts need to exercise proper control over their strict implementation by all organizations and officials.
If an official leaves a private resolution without consideration or failure to take measures to eliminate the violations of the law indicated in it, as well as late submission of a response to a private resolution, the chairman of the relevant court or the person presiding over the case may, in accordance with subparagraph 57) of part 1 of Article 804 of the Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter referred to as - Administrative Code) instruct the bailiff or other court staff to draw up a protocol on an administrative offense with the necessary documents certifying this fact, for referral to the relevant territorial court, which, in accordance with Article 684 of the Administrative Code, is responsible for the consideration of this administrative case. This takes into account the specifics of bringing to administrative responsibility persons with privileges and immunities in accordance with Chapter 49 of the Administrative Code, as well as persons whose involvement is decided according to the rules of Article 32 of the Administrative Code.
The footnote. Paragraph 15, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 13 (for the procedure of entry into force, see paragraph 2); dated 12/24/2014 No. 4 (effective from the date of official publication); dated 11/25/2016 No. 10.
15-1. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 10.
In connection with the adoption of this regulatory resolution, to invalidate the resolution of the Plenum of the Supreme Court of the Kazakh SSR dated July 19, 1963 No. 3 "On the status and measures to improve the work of the courts of the Alma Ata region and the South Kazakhstan Region to identify and take measures to eliminate the causes and conditions conducive to the commission of crimes.".
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 of the Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
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