of December 8, 2017 No. 10
About some questions of application by courts of regulations of the criminal procedure legislation on the arrived criminal case
For the purpose of ensuring uniformity of court practice and the correct application of the regulations of Chapter 41 of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure) regulating purpose of the main legal proceedings and preparatory actions to judicial session (further - preparation of purpose of the main legal proceedings), the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations.
1. Tasks of criminal procedure by preparation for purpose of the main legal proceedings are check of observance during pre-judicial production of regulations of the criminal procedure law and permission of the questions directed to preparation and ensuring comprehensive, complete and objective examination of criminal case on the basis of the principle of competitiveness of legal procedure.
2. Courts in case of calculation of procedural terms should differentiate receipt date of criminal case of acceptance date it to production of court.
Criminal case is considered the employee of office of accounting and registration work and result of automatic distribution of case who arrived in production of court after accomplishment on it.
Case is deemed accepted to production of court when on it the judge issues the decree according to Item 1) of part two of article 319 Code of Criminal Procedure or the decree issued by results of initial hearing according to requirements of part five of Article 321, of 322 Codes of Criminal Procedure.
2-1. In case of verification of proceeding decisions regarding creation by person performing pre-judicial investigation, the report on completion of pre-judicial investigation, creation by the prosecutor of the indictment and recognition of person by the prosecutor of the indictment accused from the moment of creation, courts should recognize subitem provisions 4) of article 2 of the Law of the Republic of Kazakhstan of December 27, 2021 No. 88-VII "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning implementation of three-unit model with differentiation of powers and zones of responsibility between law enforcement agencies, prosecutor's office and court" that new provisions on these questions become effective:
since January 1, 2022 concerning cases on especially serious crimes investigated by investigators of law-enforcement bodies, anti-corruption service and service of the economic investigations including connected to cases on other criminal offenses;
since January 1, 2023 concerning cases on corruption crimes, stipulated in Item 29) article 3 of the Criminal Code of Kazakhstan, including connected to cases on other criminal offenses;
since January 1, 2024 concerning cases on other criminal offenses completed in the form of pretrial investigation.
3. Courts have the right to start consideration of criminal case in the main legal proceedings only after accomplishment of the obligatory legal proceedings provided by the law and adoption of proceeding decisions on preparation of legal proceedings.
At the same time the judge shall consider the following:
powers of the judge on preparation for judicial review of criminal case of private prosecution are regulated by article 409 Code of Criminal Procedure and explanations of the normative resolution of the Supreme Court of the Republic of Kazakhstan of December 25, 2006 No. 13 "About court practice for private prosecution" and on such cases initial hearing is not carried out;
actions of the judge for preparation of purpose of legal proceedings and the procedure for initial hearing on jury cases of assessors is performed taking into account the features established by articles 635, of 636 and 637 Codes of Criminal Procedure and provisions of the normative resolution of the Supreme Court of the Republic of Kazakhstan of August 23, 2012 No. 4 "About practice of application by courts of the legislation regulating production on criminal cases with participation of jury members" and carrying out on such cases of initial hearing is obligatory;
on the case which arrived with the procedural agreement on recognition of fault signed at stage of pre-judicial production, the judge performs actions according to article 623 Code of Criminal Procedure and explanations of the normative resolution of the Supreme Court of the Republic of Kazakhstan of July 7, 2016 No. 4 "About practice of consideration by courts of criminal cases in conciliatory production". For decision making on the bases specified in Items 2) and 3) to part one of article 623 Code of Criminal Procedure, the judge carries out initial hearing of case according to the procedure, the stipulated in Article 321 Code of Criminal Procedure.
On cases on criminal offenses the Codes of Criminal Procedure of the rule of purpose of the main legal proceedings and carrying out initial hearing provided by Chapter 41 do not extend. The judge immediately accepts the arrived case on criminal offense in production. It is subject to consideration on the merits according to article 529 Code of Criminal Procedure within fifteen days from the moment of receipt in court or in day of receipt in the cases provided by part four of article 529 Code of Criminal Procedure with acceptance of one of the decisions listed in Items 1), 2) and 3) to part six of this Article.
4. During preparation of the arrived case for consideration in the main legal proceedings the judge according to regulations of Chapter 41 of the Code of Criminal Procedure shall no later than five days from the moment of receipt in time study case papers, find out whether not are allowed by bodies of pre-judicial production of violation of requirements of the criminal procedure law, interfering or excluding its consideration in the main legal proceedings whether there are no petitions which are subject to permission and claims of the parties, other bases for carrying out initial hearing. The judge also establishes whether there is need of acceptance on the matters of the proceeding decisions and accomplishment of legal proceedings provided by the law for the purpose of ensuring free, correct permission of criminal case.
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