On the application of legislation regulating the consideration of criminal cases in cassation

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 29, 2025 No. 1.

     In order to ensure the uniform and correct application of the current legislation regulating the procedure for reviewing judicial acts that have entered into force in cassation, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications:

     1. In accordance with the requirements of paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution), judgments and other court decisions that have entered into force are binding on the territory of the Republic and, in accordance with part one of Article 472 of the Code of Criminal Procedure of the Republic of Kazakhstan (hereinafter referred to as the CPC), are subject to strict enforcement. In this regard, the review of judicial acts that have entered into force in criminal cases should be carried out in accordance with the provisions of the CPC and not interfere with their execution.

     Judicial acts that have entered into force in criminal cases are reviewed by the Court of Cassation for Criminal Cases (hereinafter referred to as the Court of Cassation) at the protest of the Prosecutor General of the Republic of Kazakhstan (hereinafter referred to as the Prosecutor General), his deputies, the Chief Military Prosecutor, the Chief Transport Prosecutor, the proposal of the chairman of the regional or equivalent court, submitted in the case provided for by by the third part of Article 446 of the CPC, or by cassation complaints of persons specified in the first part of Article 486 of the CPC.

     2. The grounds for cassation review of judicial acts that have entered into force are cases of improper application of criminal and (or) criminal procedure laws provided for in parts one and two of Article 485 of the CPC. The list of grounds is exhaustive and is not subject to extensive interpretation.

     Judicial acts that have entered into legal force listed in paragraphs 2) and 3) of the second part of Article 484 of the CPC are not subject to cassation review.

     Judicial acts that have entered into force in cases of criminal offenses and minor crimes, and judicial acts in case of non-compliance with the appeal procedure, may be reviewed solely at the protest of the Prosecutor General, his deputies, the Chief Military Prosecutor, and the Chief Transport Prosecutor, if there are grounds provided for in article 485 of the CPC.

     3. In cases of crimes of moderate gravity, grave and especially grave crimes, sentences and decisions of the courts of first instance, after their consideration by the court of appeal, sentences and decisions of the courts of appeal, if there are grounds provided for in Article 485 of the CPC, may be appealed by the Prosecutor General, his deputies, the Chief Military Prosecutor, the Chief Transport Prosecutor, and They were also appealed by the persons specified in the first part of Article 486 of the CPC to the court of cassation.

     In cases involving persons who have been tried on charges of committing a crime of moderate gravity, grave or especially grave crime, in cases where their actions have been classified by lower courts as a criminal offense or a minor offense, a cassation appeal for judicial review may be filed only if they disagree with such a reclassification and raise the issue of qualification of the act under the previous more serious article.

     4. Non-compliance with the appellate procedure for appealing judicial acts is recognized in cases where a judicial act of the court of first instance:

     It was not appealed (the petition was not brought) and it entered into legal force.;

     An appeal was filed (a petition was filed), but in accordance with the procedure established by law, the appeal (private) complaint and the prosecutor's petition were withdrawn before it was considered.;

     It was appealed (a petition was filed), but due to the missed appeal period, the complaint and the prosecutor's petition were returned without consideration.;

     The case against the convicted (acquitted) was not reviewed, but was appealed (a petition was filed), and reviewed in the court of appeal against other persons in the case.

     5. The persons listed in the first part of Article 486 of the CPC have the right, subject to the requirements of the first part of Article 484 of the CPC, to file a cassation appeal even in cases where they did not participate in the consideration of the case in the courts of first and appellate instances.

     Other persons who have the right to file a cassation appeal include a person who is not recognized as a participant in the process in accordance with the established procedure, but who, based on his actual position, has the right to judicial protection of his rights and legitimate interests (hereinafter referred to as the interested person). Such persons may include the owner of the property or the mortgagee, whose property has been confiscated or whose property has been seized, and other persons.

     The cassation appeal of the person concerned must indicate in which part the judicial act affects his rights and legitimate interests, which norms of the law were violated during the consideration of the case, as well as the substance of the request, indicating the grounds for the review of judicial acts.

     The requirements of the first part of Article 484 of the CPC on mandatory compliance with the appellate procedure for appealing judicial acts also apply to the person concerned. If an interested person finds violations of his rights and legitimate interests after the expiration of the appeal period against judicial acts of the court of first instance, such a person has the right to apply to the court for restoration of the missed deadline in accordance with Article 419 of the CPC.

     The legal representative of a minor convicted (acquitted) victim has the right to file a cassation appeal against judicial acts that have entered into force only until the convicted (acquitted) victim reaches the age of majority.

     6. The victim, his representative or legal representative has the right to appeal the judicial acts specified in the first part of Article 484 of the CPC in cases of crimes of moderate gravity, grave and especially grave crimes on the grounds provided for in the first part of Article 485 of the CPC.

     On the grounds provided for in paragraph 4) Judicial acts may be reviewed in case of violation of the victim's rights provided for in part six of Article 71, parts three and four of Article 72 and part three of Article 76 of the CPC, in particular, non-recognition of the victim as a private prosecutor if the prosecutor refuses to charge, depriving him of the right to participate in court proceedings, to speak in court proceedings. disputes, incorrect resolution of a civil claim filed by the victim (civil plaintiff), and other violations, which influenced the correctness of the resolution of the criminal case on the merits.

     7. The content of the cassation appeal or protest on the revision of the judicial acts of the court that have entered into force must comply with the requirements of Article 488 of the CPC.

     The appeal and protest are addressed to the Court of Cassation and must contain:

     information about the person who filed the cassation appeal, indicating his procedural status, place of residence or location, and numbers of means of contact with him;

     indication of the contested judicial acts and the name of the courts that have decided them;

     an indication of which part of the judicial act or in its entirety a cassation appeal is filed against it, a protest is brought.;

     a reference to the relevant paragraph of the first part of Article 485 of the CPC, which provides the basis for reviewing a judicial act;

     the arguments of what is the incorrectness of the judicial act, which norms of the law were violated during the pre-trial proceedings or the consideration of the case in previous judicial instances, and how these violations affected the court decisions, and the substance of his request;

     the evidence that substantiates the claims of the cassation appeal, protest;

     an indication of the consideration of the cassation appeal with or without the participation of the person who filed it;

     the list of materials attached to the cassation appeal, protest;

     the date of filing the cassation appeal, the protest, and the signature of the author of the complaint, the prosecutor who brought the protest.

     The cassation appeal or protest must be drawn up in the language of the legal proceedings established in the criminal case. Copies of the contested judicial acts must be attached to the complaint.

     The cassation appeal of a convicted person serving a custodial sentence is filed through the administration of an institution of the penal system.

8. The protest of the Prosecutor General, his deputies, the Chief Military Prosecutor, and the Chief Transport Prosecutor, submitted on the basis of paragraphs 1), 4) of the second part of Article 485 of the CPC, must contain a justification for how the judicial act to be reviewed affects state or public interests, national security of the state, or may lead to serious irreversible consequences for life, human health, and also violates the uniformity in the interpretation and application of legal norms by the courts.

     If the above requirements are not met, the cassation appeal or protest will be returned by letter without consideration.

     A cassation appeal or other appeal must be returned as not complying with the requirements of the first part of Article 488 of the CPC, also in cases where they contain incorrect expressions, profanity, insulting participants in the proceedings and other persons, as well as irrelevant circumstances.

     In case of repeated receipt of a complaint or protest to the cassation instance after the elimination of the deficiencies that served as the basis for the return of the previously filed complaint or protest under paragraph 1) of the first part of Article 489 of the CPC, the time limit established by the second part of Article 487 of the CPC for appealing judicial acts on grounds that worsen the situation of the convicted person is calculated from the moment of receipt of the previously filed complaint or protest.

     9. In accordance with the provisions of part three of Article 489 of the CPC, a cassation appeal or protest is returned without consideration on the grounds provided for in paragraphs 1), 2), 3), 5) of the first part of Article 489 of the CPC, by a letter from the judge of the Court of Cassation within no more than three days from the date of transmission of the complaint or protest to the judge, and in the case, provided for in paragraph 4) The first part of Article 489 of the CPC is a court order.

     10. A private decision may be appealed (protested) in cassation on the grounds of its illegality and unreasonableness, issued by the courts of the first or appellate instance.

     A private decision of the court of first instance may be reviewed by the court of cassation on the complaint of a person whose rights and legitimate interests it affects, only if the appeal procedure is followed. If this condition is not met, the complaint is returned to the person who submitted it by letter from the judge of the Court of Cassation.

     11. In accordance with the first part of Article 492 of the CPC, after the cassation appeal is received by the court of cassation instance, the criminal case must be requested from the relevant court. Within 10 days after receiving the case, the parties are sent copies of the cassation appeal, protest and notice of the consideration of the case, or a notice of the possibility of reviewing their electronic copies via the court's Internet resource.

     In the notice of the hearing of the case in the court of cassation instance, the court is obliged to indicate the date, time and place of the court session and explain the right of the parties to familiarize themselves with additional materials attached to the cassation appeal.

     When objections to the cassation appeal are received, they are sent to the parties.

     By virtue of part six of article 23 of the CPC, the court, while maintaining objectivity and impartiality, is obliged to create the necessary conditions for the parties to fulfill their procedural duties and exercise the rights granted to them. Taking into account this rule, the date of consideration of the case in the cassation instance should be determined taking into account the possibility of proper notification of persons entitled to participate in the court session, as well as persons against whom a cassation complaint has been filed or a protest has been filed to review the judicial act.

     A court hearing to consider complaints, protests, and representations is conducted in accordance with the procedure provided for in article 494 of the CPC.

     The criminal case in the court of cassation instance must be considered within a reasonable time, but not more than six months from the date of its receipt by the court.

     12. The court of cassation instance verifies all the arguments of the cassation appeal, protest, as well as the legality, validity and fairness of judicial acts in the case in full and, based on the results of consideration, makes one of the decisions specified in part seven of Article 494 of the CPC.

     The court of cassation has the right to worsen the situation of the convicted person only if this is indicated in the protest of the prosecutor or the cassation complaint of the victim. The court of cassation, when revoking an acquittal verdict or a decision to terminate a criminal case, has no right to find a person guilty of committing a criminal offense. In this case, the criminal case is in accordance with paragraph 4) The seventh part of Article 494 of the CPC is sent for a new judicial review to the court of appeal or first instance.

     The court of cassation instance has the right to make any changes to the judicial act in respect of other convicted persons who are accomplices in a criminal offense, in respect of whom a cassation complaint or protest has not been filed, if their situation does not worsen.

     13. The subject of review by the court of cassation is only issues of law, that is, the legality of judicial acts, the correctness of the application by the courts of the norms of criminal and criminal procedure laws.

     In accordance with the requirements of part fourteen of Article 494 of the CPC, the court of cassation has no right to establish or consider proven facts that were not the subject of judicial proceedings.

     The circumstances established after the entry into force of the verdict, which are of significant importance in the case, including expert opinions and conclusions submitted after the entry into force of judicial acts, cannot be considered by the court of cassation, since they were not and could not be considered in the courts of the first or appellate instances. These circumstances can only serve as a basis for resuming proceedings on newly discovered circumstances according to the rules provided for in Chapter 53 of the CPC.

     Additional materials that may be attached to the appeal (protest) should be understood as documents containing reliable information, including characteristics, certificates of the amount of damage and other materials that do not require assessment and recognition as evidence.

     Additional materials indicating the erroneous application of substantive or procedural law by the courts of the first or appellate instances, the assessment of evidence on the basis of which the court drew conclusions about the evidence (lack of evidence) of the charge, the role and degree of guilt of the convicted person may serve as grounds for the cancellation of judicial acts with the referral of the case for a new judicial review.

     The incompleteness of the judicial investigation, including the failure of the courts of first and appellate instances to evaluate the evidence presented by the parties, may also serve as grounds for the cancellation of judicial acts and the referral of the case for a new judicial review.

     14. Judicial acts rendered by a court in the framework of conciliation proceedings may be annulled or amended by the court of cassation to worsen the situation of the convicted (acquitted) only in cases of significant violations of criminal and criminal procedure laws committed during the conclusion of a procedural agreement in the form of a plea bargain and consideration of the case.

     15. Cassation complaints, protests, which set out only the application of the norms on the retroactive force of the criminal law (Article 6 of the Criminal Code of the Republic of Kazakhstan (hereinafter - CC)) or the amnesty act, are not considered in cassation, as they are referred to the jurisdiction of the courts, resolving issues related to the execution of the sentence. Such complaints, in accordance with the requirements of paragraph 5) of the first part of Article 489 of the CPC, are returned by a letter from the judge of the Court of Cassation without consideration, as not subject to cassation review, with an explanation of the right to appeal to the court at the place of execution of the sentence in accordance with the procedure provided for in articles 476, 477 of the CPC.

     If the specified circumstances become clear during the consideration of the case at a court session of the cassation instance, then the abandonment of the cassation appeal or protest without consideration is formalized by a court order.

     In cases where the case is considered on the grounds provided for in Article 485 of the CPC, and at the same time circumstances are seen that allow the application of the norms of Article 6 of the Criminal Code or the amnesty act, the court of cassation makes a decision applying these norms.

     16. Incorrect resolution of a civil claim is one of the grounds for the cassation review of judicial acts that have entered into force. If, during the consideration of a civil claim, arithmetic or technical errors were made related to the incorrect calculation of the civil claim, which do not require a legal assessment on the merits of the claim, then these issues are subject to consideration by the court before the verdict enters into force in accordance with Article 406-1 of the CPC by issuing an additional ruling, or at the stage of execution of the sentence in accordance with the procedure provided for paragraph 23) of Article 476 of the CPC.

     17. To invalidate the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated March 10, 2022 No. 2 "On the application of legislation regulating the consideration of criminal cases in cassation."

     18. According to article 4 of the Constitution, this regulatory resolution is included in the current law, is generally binding and will enter into force on July 1, 2025.

Chairman of the Supreme Court of the Republic of Kazakhstan

A. Mergaliev

Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of the plenary session

G. Almagambetova

  © 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  

     Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases