The court of Appeal incorrectly concluded that a person brought to justice by a non-law enforcement body cannot participate in the consideration of a criminal case as a jury
By the verdict of the specialized Inter – District Court for criminal cases of the South Kazakhstan region dated July 25, 2013 with the participation of a jury: K., the previous criminal record was canceled, he was found guilty by Part 1 of Article 96 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) and sentenced to imprisonment for 6 years and 6 months, serving a sentence in a correctional colony of a strict regime. The term of serving the sentence is calculated from March 19, 2013. As procedural costs in a criminal case, 3472 tenge 92 tiyn were collected in favor of the state from the convicted person. The decision was made in accordance with the requirements of the law on evidence objects. According to the verdict of the court with the participation of a jury, K. was found guilty of unlawful premeditated death of the victim S. in a state of intoxication, as a result of a quarrel, with a single blow to the left chest. By the decision of the Appellate Judicial Board for criminal cases of the South Kazakhstan Regional Court of September 10, 2013, the verdict was canceled, and the criminal case was sent for revision to the same court, in a different composition. The appeal of the convicted K. was dismissed.
In the Cassation protest, the prosecutor pointed out that the court decision is illegal and unjustified, that the Bringing of the jury E. to administrative responsibility cannot serve as a basis for the cancellation of the sentence, because E. was brought to administrative responsibility by the Department of sanitary and epidemiological supervision, which does not belong to the law enforcement agency, that is, he does not have an opinion on the law enforcement or judicial body, The verdict of the specialized Inter-District Court for criminal cases of the South Kazakhstan region with the participation of a jury was asked to remain unchanged. The Cassation judicial board examined the opinion of the prosecutor in support of the protest, the defense's statement asking to leave the decision of the Appellate Judicial Board in force, the arguments of the Cassation protest and the case materials, and concluded that the decision of the Appellate Judicial Board is subject to cancellation, the Cassation protest is subject to satisfaction. The Appeal Court canceled the verdict of the Specialized Interdistrict Court, which considered the criminal case with the participation of the jury, on the grounds that the presence of E., brought to administrative responsibility among the jurors, led to a significant violation of the Criminal Procedure Law and this circumstance influenced the decision of the jury to make an objective decision on the case. In accordance with the requirement of Part 5 of Article 552 of the Code of Criminal Procedure of the Republic of Kazakhstan (hereinafter referred to as the code), the presiding judge exempts any candidate for a jury from performing the duties of a jury for other reasons indicating the possibility of illegal influence on this person, the presence of an opinion in it, as well as the objectivity of the candidate for a jury when participating in the consideration of a case as a jury.
The court of Appeal incorrectly concluded that a person brought to justice by a non-law enforcement body cannot participate in the consideration of a criminal case as a jury
In paragraph 7 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated August 23, 2012 No. 4 "on the practice of applying laws governing the consideration of criminal cases with the participation of jurors", in part four of Article 551 of the code of Criminal Procedure, in order to establish the presence of such circumstances in which a candidate for a juror may have a criminal record, be brought to criminal or administrative responsibility, forcibly brought to law enforcement, the accused and his defense counsel may ask questions to the judge in writing, as well as in case of detection of other circumstances (influence on the candidate, the presence of an opinion in it, the consequences of his knowledge of the circumstances of the case from sources outside the proceedings, etc.), which reasonably doubt the likelihood of objectivity of the candidate's participation as a jury in the consideration of the case.
According to the case documents, the jury that considered the criminal case in court included kindergarten chef E., who was brought to administrative responsibility by the resolution of the Department of sanitary and epidemiological supervision of Al-Farabi District of Shymkent with Part 1 of Article 323 of the Administrative Code for violation of regulatory legal acts in the field of sanitary and epidemiological well-being, as well as hygiene standards. When selecting candidates for a jury to participate in the consideration of a criminal case and establishing circumstances that prevent participation in the case as a jury, E. he did not warn the presiding officer about this because he did not know that he had been brought to administrative responsibility, so his lack of objectivity when participating in the proceedings as a jury was not in doubt.
The court of Appeal incorrectly concluded that a person brought to justice by a non-law enforcement body cannot participate in the consideration of a criminal case as a jury
In addition, since E. was brought to administrative responsibility by the sanitary and epidemiological Department, which is not a law enforcement agency, there was no negative opinion about law enforcement or judicial bodies. For each of the three questions specified in Part 1 of Article 566 of the code of criminal procedure, all jurors, including those approved by E. The decision of the prosecution was made. At the same time, the court of Appeal held a negative conclusion that the presence of E., who was brought to administrative responsibility as part of the jury, led to a significant violation of the Criminal Procedure Law, which influenced the decision of the jury to make an objective decision on the case. The court of first instance considered the case in accordance with the requirements of the criminal and criminal procedure laws, clearly established that K. inflicted an illegal death by stabbing the victim S. in a drunken state and correctly ranked his actions by Part 1 of Article 96 of the Criminal Code. Also, the court of first instance assigned the correct punishment to K., taking into account the nature and degree of public danger of the crime committed, criminal liability and mitigating, aggravating circumstances. Therefore, the decision of the Appellate Judicial Board is canceled, and the verdict of the Specialized Interdistrict Criminal Court with the participation of a jury is subject to cancellation.
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