of June 29, 2017 No. 5
About procedure for production on criminal cases in cassation instance
Due to the change of the criminal procedure legislation on review of the court resolutions which took legal effect in cassation procedure and for the purpose of its uniform application, the plenary session of the Supreme Court of the Republic of Kazakhstan
1. Explain that in cassation procedure according to regulations of Chapter 52 of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure) the sentences which took legal effect and resolutions of Trial Courts, after their consideration in appellate instance, and also sentences and resolutions of Appeal Courts can be reviewed.
In case of withdrawal of petitions for appeal in the procedure established by the law, court resolutions of Trial Court are not subject to revision in cassation instance as were not considered in appellate instance.
If consideration of the case in appellate instance took place according to claims of other participants of process or on the prosecutor's protest, then it does not mean observance by the author of the petition of requirements of article 484 Code of Criminal Procedure about the personal appeal to appellate instance. In consideration cases in appellate instance of petitions for appeal of the defender, representative or legal representative for the benefit of the convict (justified), or the representative or the legal representative for the benefit of the victim, the petitions submitted to convicts (justified) or the victim are subject to revision in cassation procedure, irrespective of their personal appeal to appellate instance.
2. According to part three of article 484 Code of Criminal Procedure court resolutions in case of non-compliance with appeal procedure for their appeal, and also court resolutions on cases on criminal offenses and crimes of small weight can be reviewed in cassation procedure only on protest of the Attorney-General of the Republic of Kazakhstan (further - the Attorney-General) or on representation of the Chairman of the Supreme Court of the Republic of Kazakhstan (further - the Chairman of the Supreme Court) in the presence of the bases provided by the corresponding parts of article 485 Code of Criminal Procedure.
3. Consideration of the case in cassation instance is performed in case of receipt of the judge's ruling on transfer of the petition with case for consideration in judicial session of cassation instance in the presence of foundations for review of court resolutions, and also the representation of the Chairman of the Supreme Court, protest of the Attorney-General brought by them as on own initiative, and according to the petition of persons specified in part one of article 486 Code of Criminal Procedure on the bases, the stipulated in Article 485 Codes of Criminal Procedure.
Persons listed in part one of article 414 Code of Criminal Procedure, the having the right tax the petition on the court resolutions which took legal effect and when they did not participate when considering the case in prior degrees of jurisdiction, but in case of observance of the requirement about obligation of review of sentence, the resolution in appeal procedure.
Explain that the persons who are not recognized in accordance with the established procedure as these or those participants of process, but proceeding from the actual position needing judicial protection treat number of other persons having rights to submission of the application for revision of court resolutions in that part in which they affect their rights and legitimate interests (the pledger, person whose property it is seized, and others). With the survey request of legality of the issued private decree person to whom the measures affecting it the rights and legitimate interests in connection with the circumstances specified in the private resolution can be applied has the right to appeal to the court of cassation instance.
In petitions of persons who are not participants of process it shall be specified in what part the court resolution affects their rights and legitimate interests what provisions of the law are broken when considering the case, and also request essence with indication of the specific bases attracting in their opinion, review of court resolutions.
The legal representative of the minor convict has the right to submit the petition on the court resolutions which took legal effect only before achievement of age of majority by the convict if on case there are no other bases for participation of person in case in quality of the legal representative of the convict provided by the law.
4. In case of receipt of the petition, protest, representation of cassation instance to court it is necessary to check observance by the author of procedural terms, the stipulated in Article 487 Codes of Criminal Procedure. Non-compliance with the term specified in part two of article 487 Code of Criminal Procedure is the basis for pronouncement of the resolution on return of the petition, protest, representation without consideration.
5. The bases to review of the court resolutions which took legal effect should be considered allowed in case of pre-judicial production or judicial review of case of violation of constitutional rights and freedoms of citizens, or such wrong application of the criminal and criminal procedure laws which entailed approach at least of one of the effects specified in part one of article 485 Code of Criminal Procedure. The list of the specified bases for review of the sentences which took legal effect, resolutions is exhaustive. On the bases specified in part two of article 485 Code of Criminal Procedure, sentences and resolutions can be reviewed on representation, protest and in the absence of the effects specified in part one of article 485 Code of Criminal Procedure.
6. The wrong application of the law as the basis for review of sentence, the resolution in cassation procedure can consist as in wrong interpretation of the criminal or criminal procedure provision of the law by court in case of its application, and in non-compliance with the requirements stated in it, and also in other violations allowed by court when considering the case if these violations entailed approach of the effects specified in part one of article 485 Code of Criminal Procedure.
7. According to Item 1) of part one of article 485 Code of Criminal Procedure under he is innocent the convict it is necessary to understand person concerning whom the conviction in the absence of event of criminal offense, structure of criminal offense is pronounced or in case of absence of proof of participation of person in making of criminal offense.
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