On the procedural practice of courts in criminal cases in a contractual manner

Normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 7, 2016 No. 4.

      The plenary session of the Supreme Court of the Republic of Kazakhstan with a view to discussing the procedural practice of courts in criminal cases in a contractual manner, in order to ensure the unity of judicial practice and the conclusion of a procedural agreement in the form of a plea bargain and the correct application of the legislation in the contractual procedure of courts in criminal cases:

The main purpose of concluding a procedural agreement in the form of a plea agreement (hereinafter referred to as a plea agreement) is to quickly and fully disclose crimes, investigate and implement the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the plea agreement). – To explain that other tasks of the criminal process provided for in Article 8 of the Criminal Procedure are the legality, judicial protection of the rights and freedoms of a person and citizen, the presumption of innocence and other basic initial principles of the criminal process by the court in accordance with the concluded agreement with strict adherence to the accelerated pre-trial investigation and

A plea agreement may be concluded only for crimes of minor or moderate severity or grave, or for a combination of them.

      In accordance with the requirements of Paragraph 1) of the second part of Article 613 of the CPC, if a set of crimes occurs, at least one of them falls under the category of particularly serious crimes, or the suspect, accused, defendant, on suspicion of committing at least one of the crimes included in the set, does not agree with the accusation, then it is not allowed to conclude a plea agreement.

     If a comprehensive, complete and objective study of the circumstances affects the rights and legitimate interests of other persons who are not parties to the case, then a plea agreement cannot be concluded.

     A procedural agreement in the form of a plea bargain in a criminal case of crimes committed by corrupt participants is not concluded with an individual corrupt participant. Such an agreement is allowed only if it was committed simultaneously with all accomplices of the crime.

     Warning. Paragraph 2 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of its first official publication).

A plea agreement may be concluded at the request of the suspect, accused, defendant or his defense attorney, or at the initiative of the prosecutor. At the request of the defense attorney or at the initiative of the prosecutor, when concluding a plea agreement, the voluntary expression of the desire of the suspect, the accused to conclude such an agreement must be properly established and recorded in the criminal case at the stage of pre-trial investigation.

      The Criminal Procedure Law does not establish a specific form of the petition for the conclusion of an agreement on the admission of guilt, therefore, in accordance with the requirements of part two of Article 99 of the CPC, a written petition must be attached to the materials of the criminal case, an oral petition-an investigative action or is included in the minutes of a court session.

A petition of a suspect, accused, defendant or his defense attorney or prosecutor to conclude a plea agreement can be filed at the stage of pre – trial proceedings – from the moment the person acquires the status of a suspect, in the court of first and appellate instance-until the court leaves for the deliberation room.

The conclusion of a plea agreement in cases of criminal misconduct is not provided for by law.

      When a person commits a crime for which a criminal offense and a plea agreement are concluded, the pre-trial investigation body should not combine cases on them, since pre-trial proceedings in a criminal offense case are carried out in a protocol form, and proceedings in a crime case are carried out within the framework of a procedural agreement in accordance with the rules provided for in Chapter 63 of the CPC.

      When a person commits a crime for which an agreement on a criminal offense and a confession of guilt has not been reached and has not been committed, criminal cases on them may be combined for a single procedure in the form of an inquiry or preliminary investigation in accordance with part four of Article 526 of the criminal code.

If the court receives a case in which crimes and criminal misdemeanors that do not belong to the category of particularly serious crimes for which a plea agreement has been concluded are combined, then the court returns the case from the preliminary hearing to the prosecutor, providing the opportunity to conduct a pre-trial investigation in accordance with the requirements of the CPC.

If the court receives a criminal case with an agreement on the recognition of guilt against two or more persons who have committed at least one of the crimes related to a particularly serious crime, then the court returns the case from a preliminary hearing to the prosecutor due to the lack of grounds for consideration in the order of conciliation proceedings.

If, during the trial in a criminal case, a petition is received from the defendant or from all defendants who are corrupt participants in the crime to conclude a plea agreement, then the court, in accordance with article 628 of the CPC, interrupts the trial and gives the parties a reasonable period for its conclusion.

     In case of conclusion of a procedural agreement on the admission of guilt, the judge shall adopt a decision on the continuation of the consideration of the case in conciliation proceedings in accordance with the rules of Chapter 64 of the CPC.

     Warning. Item 8 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of its first official publication).

If, during the main trial in a criminal case of particularly serious crimes, the public prosecutor changes the charge to a more lenient crime by partially disclaiming the charge, and the victim does not claim the previous charge, then the court must terminate the part of the case and explain to the parties that they have the right to conclude a plea agreement on the new charge.

Before sending a petition for the conclusion of a plea agreement to the prosecutor, the body conducting criminal proceedings is obliged to explain to the victim that, in accordance with the requirements of Paragraph 22) of part six of Article 71 of the CPC, the parties have the right to know about the intention to conclude an agreement, its conditions and consequences, to offer At the stage of pre-trial investigation, a protocol is drawn up on the conduct of this act in compliance with the requirements of Article 199 of the CPC, and at the trial-entered into the minutes of the court session.

      In order to properly ensure the rights of the victim at the stage of concluding a plea agreement in criminal proceedings and to obtain the victim's consent to conclude an agreement, the prosecutor must additionally explain to the victim about the legal consequences of his consent to conclude a plea agreement provided for in Article 614 of the CPC. On the conduct of this action, the prosecutor draws up a protocol in compliance with the requirements of Article 199 of the CPC.

     A prerequisite for its conclusion is the consent of the victim to conclude a confession agreement, with the exception of the absence of a victim (natural or legal person) in a criminal case, therefore, such consent of the victim must be attached to the materials of the criminal case in writing with a protocol explaining to the victim his rights and the consequences of his consent to conclude a confession agreement.

In accordance with the second part of Article 614 of the CPC and other norms of Chapter 63, only the suspect, accused, defendant has the right to refuse to admit guilt. The right of the victim to refuse his consent to conclude an agreement is not provided for by law. In addition, in accordance with paragraph 3) of the first part of Article 614 of the CPC, the victim who has given his consent to conclude a plea agreement is deprived of the right to further change the claim on the amount of compensation for damage. However, according to the third part of Article 614 of the CPC, the plea agreement does not deprive the victim and the civil plaintiff of the right to file a civil claim in this criminal case or in the order of civil proceedings.

      The norm of the third part of Article 614 of the CPC establishes the right of the victim and the Civil Plaintiff to file a claim in cases where their position on the issue of compensation for damage caused by a crime after the conclusion of an agreement on the recognition of guilt with the consent of the victim changes due to circumstances that arose after the conclusion of the agreement (for example, the cost of treatment, the purchase of medicines, etc.). At the same time, in the absence of new circumstances, the victim and the Civil Plaintiff, with their consent, are not entitled to raise the question of increasing the amount of damage specified in the plea agreement.

If a legal entity is recognized as a victim in a criminal case, then consent to the conclusion of a plea agreement is given by the representative of the legal entity who granted such authority.

     A plea agreement can also be concluded in the absence of a victim – a natural or legal person in a criminal case (for example, in cases of illegal trafficking in narcotic substances and the like).

The plea agreement should not contain a condition in which the court must assign a certain type and amount of punishment to the defendant, which, in accordance with Paragraph 8) of the first part of Article 616 of the CPC, must indicate the type and amount of punishment that the prosecutor applies before the court.

When concluding a plea agreement, the prosecutor does not have the right to recognize it as a condition for the confession of his guilt by the suspect, the accused. In the plea agreement, it is sufficient to indicate that, in accordance with paragraph 2) of the first part of Article 613 of the CPC, the suspect, the accused did not dispute the suspicion, the accusation and the existing evidence in the case of the crime committed, the nature and extent of the damage caused by him.

If the defendant, exercising his right in court, refuses to conclude a plea agreement, then the court returns the criminal case to the prosecutor for conducting a pre-trial investigation in a general manner in accordance with paragraph 1) of the first part of Article 626 of the CPC. In conciliation proceedings, the defendant's application for innocence and forced conclusion of a plea agreement also entails a return to the prosecutor for conducting a pre-trial investigation.

In the absence of a condition in the plea agreement on the appointment of compulsory medical treatment for a convicted person recognized as requiring treatment for alcoholism, drug addiction or substance abuse, this compulsory measure may not be prescribed by the court on its own initiative. In this case, the court has the right to return the criminal case to the prosecutor for the conclusion of a new agreement on the basis of Paragraph 3) of the first part of Article 623 or paragraph 2) of the first part of Article 626 of the CPC.

The defendant's refusal to conclude a plea agreement is allowed until the court leaves for the deliberation room. Upon the conclusion of the conciliatory proceedings, the convicted person has no right to refuse to conclude a plea agreement, but may appeal the verdict in accordance with the procedure provided for in Chapter 48 of the CPC. At the same time, the refusal of the defendant to conclude a plea agreement after leaving the court for the deliberation room is not a reason for the cancellation of the court verdict. A court verdict issued following the consideration of a case in conciliation proceedings may be revoked and changed by the court of Appeal only on the grounds provided for in Article 433 of the CPC, including when a significant violation of the Criminal Procedure Law is allowed during the conclusion of an agreement on admission of guilt or consideration of a criminal case in conciliation proceedings.

If the suspect, accused, defendant or prosecutor declares and draws up an application for concluding an agreement on admission of guilt, the participation of the defense attorney in the proceedings in the criminal case is mandatory in accordance with the requirements of paragraph 11) of the first part of Article 67 of the criminal code. In accordance with the requirements of part three of Article 537 of the CPC and part three of Article 542 of the CPC, a legal representative from among the persons specified in paragraph 13) of Article 7 of the CPC is necessarily involved in this procedural action when a minor suspect, accused, defendant enters into a plea agreement with the prosecutor.

The judge issues a corresponding decision on the appointment of a trial in a criminal case with an agreement on the recognition of guilt. At the same time, the court's consideration of criminal cases in the order of conciliation proceedings is carried out without conducting a judicial investigation, judicial debate and giving the last word to the defendant in accordance with the rules provided for in Article 625 of the criminal code.

The court conducts contractual proceedings within the framework of the concluded agreement on the admission of guilt. In conciliation proceedings, the court has the right to make a decision not provided for by the plea agreement, if it does not worsen the situation of the defendant and does not violate his right to defense.

A criminal case is subject to consideration in the order of conciliation proceedings in accordance with part six of Article 625 and part two of Article 382 of the criminal code within a period of up to ten days, in exceptional cases this period may be extended up to twenty days by a reasoned decision of a judge.

In case of receipt of a petition for the conclusion of a procedural agreement on the admission of guilt during the main trial, the judge, in accordance with the requirements of part one of Article 628 of the CPC, shall take a break in the trial and give the parties a reasonable period for the conclusion of the agreement. At the same time, the criminal case is not sent to the prosecutor, but remains in court. The provisions of part two of Article 615 of the CPC on the fact that the body conducting the criminal process, together with the materials of the criminal case, sends the received petition to the prosecutor to resolve the issue of concluding a procedural agreement, apply only at the stage of pre-trial proceedings.

     If the court disagrees with the procedural agreement concluded during the main trial, the court gives the parties time to conclude a new procedural agreement. In the event that the parties cannot reach an agreement on the terms of the procedural agreement or the court does not agree with the new procedural agreement, the consideration of the criminal case by the court continues in the general manner. In this case, it is not required to draw up a new indictment.

     Warning. Paragraph 22 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of its first official publication).

The court, based on the results of the conciliation proceedings, has the right both to impose a punishment on the defendant more lenient than the type and amount of punishment requested by the prosecutor before the court in accordance with the plea agreement, and to return the case to the prosecutor, allowing him to conclude a new agreement related to disagreement with the type and amount of punishment specified in the procedural agreement.

The court is not entitled to impose a more severe punishment than the punishment provided for in the plea agreement. If the court does not agree with the type and amount of punishment provided for in the plea agreement, considering it frivolous, then the criminal case returns to the prosecutor in accordance with paragraph 3) of the first part of Article 623 and Paragraph 2) of the first part of Article 626 of the criminal code, allowing the conclusion of a new agreement.

It is not allowed to apply Article 67 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code) when considering a case in a contractual procedure, since this norm applies only to the person who has concluded a procedural agreement on cooperation and if he fulfills all the requirements of the agreement.

If the circumstances provided for in the first part of Article 68 of the criminal code are revealed in the conciliation proceedings, the court, in accordance with subparagraph 12) of the first part of Article 35 of the criminal code and subparagraph 4) of the first part of Article 626 of the criminal code, makes a decision on termination of proceedings in a criminal case related to reconciliation.

      Based on the results of consideration of the plea agreement in conciliation proceedings, it is not allowed for the court to issue a decision on termination of the case on the grounds provided for in Article 36 of the CPC and parts two and three of Article 68 of the CPC. In this case, the court has the right to issue a guilty verdict or return the criminal case to the prosecutor with exemption from criminal liability.

The conciliation proceedings do not provide for the issuance of an acquittal based on the results of consideration of the plea agreement. When the circumstances specified in Article 35 of the CPC are established and they do not require investigation, the court makes a decision to terminate the proceedings in the case.

In accordance with paragraph 5) of the first part of Article 626 of the CPC, the guilty verdict must contain a court decision on a civil claim and other penalties in accordance with the plea agreement. In order to ensure the specified requirements of the law, the plea agreement must indicate if there are procedural costs in the case, their recovery from the convicted person or their attribution to the state account.

In the sense of Article 87 of the CPC, a judge who has returned the case to the prosecutor due to the lack of grounds for consideration in the contractual procedure should not object only on this basis when the case is again submitted to the court together with a new plea agreement, and he has the right to consider this case in the contractual procedure.

In the order of contractual proceedings, criminal cases submitted to the court together with a procedural agreement in the form of a plea agreement are considered, as well as criminal cases in which a plea agreement was concluded during the main trial or during the consideration of the case in appeal proceedings.

      A case against a convicted person who has concluded a cooperation agreement and fulfilled its conditions is not subject to consideration in the order of conciliation proceedings together with a petition of the prosecutor, it is subject to consideration in the order of execution of the sentence in accordance with articles 476, 477 and 478 of the CPC.

In the court of Appeal, a procedural agreement on the recognition of guilt in relation to the convicted person cannot be concluded, since in accordance with article 615 of the CPC, only the suspect, accused and defendant, in addition to the defense attorney and the prosecutor, have the right to submit a petition for the conclusion of such an agreement. In addition, in accordance with paragraph 5) of the seventh part of Article 65 of the CPC, a convicted person has the right only to submit an application for concluding a procedural agreement on cooperation. In this regard, taking into account the requirements of part five of Article 429 of the CPC, an agreement on the recognition of guilt at the court of Appeal may be concluded only after the cancellation of the verdict of the court of First Instance on the grounds provided for by law and the transition of the court of appeal to consideration of a criminal case on the At the same time, in the event of an agreement on the admission of guilt, the court of Appeal issues a resolution on the consideration of the criminal case in the order of conciliation proceedings, considers the case in accordance with the rules of Chapter 64 of the CPC and makes one of the decisions provided for in Article 626 of the CPC.

It is not allowed to conclude an agreement on the recognition of guilt in a criminal case in a court of Cassation instance, that is, after the court verdict has entered into legal force.

In accordance with paragraph 1 of Article 4 of the Constitution of the Republic of Kazakhstan, this normative resolution is included in the current law, is universally binding and enters into force from the date of its first official publication.

The Republic Of Kazakhstan

Chairman Of The Supreme Court

K. MAMI

The Republic Of Kazakhstan

Judge of the Supreme Court,

Secretary of the plenary session

K. SHAUKHAROV

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