of November 29, 2018 No. 17
About consideration of criminal cases according to the procedure of mandative production
For the purpose of uniform and correct application of regulations of the legislation on hearing of cases according to the procedure of mandative production the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations.
1. The procedure for mandative production according to part two of Article 629-1 of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure) is applied only on criminal offenses and crimes of small weight.
By results of consideration of the case about criminal offense according to the procedure of mandative production as punishment fine and the obligatory additional punishment prescribed by the sanction of the incriminated article of the Criminal Code in the form of deprivation of the right to hold certain position or to be engaged in certain activities is ordered to pay if in the sanction of the article of the Criminal Code certain (exact) term of deprivation of this right is established.
If (further - UK) the penalty is not provided in the sanction of article of the Criminal Code of Kazakhstan by one of types of primary punishment, mandative production is not performed.
2. It must be kept in mind that the solution of question of application of mandative production perhaps after establishment of the particular person who made the corresponding criminal offense.
In case of allocation of criminal case for application of mandative production the body conducting criminal procedure should observe requirements of article 44 Code of Criminal Procedure strictly.
Allocation of case papers on separate criminal offenses or concerning certain suspects shall not interfere with separate investigation and consideration of the case, ensuring comprehensiveness, completeness, objectivity of research of circumstances and permissions of case in the relation of other persons.
Production in other part of criminal offenses or concerning other suspects continues according to the Code of Criminal Procedure.
3. The issue of consideration of the case in mandative production is resolved at pre-judicial stage.
Person performing pre-judicial production explains to the suspect, the victim, the civil claimant, the civil defendant (their representatives) their procedural law provided by the law including the right to application of procedure for mandative production.
To the suspect it shall be explained:
of what making of criminal offense he is suspected and by what proofs his guilt is confirmed;
about the statement of the civil action;
about the amount (size) of claims about compensation of property damage and (or) compensation of the moral harm, compulsory payment in Fund of compensation by the victim provided by articles 98-1, 98-2 UK, procedural costs;
in case of removal of conviction by court about purpose of primary punishment in the form of penalty, its size, obligatory additional punishment in the form of deprivation of the right to hold certain position or to be engaged in certain activities;
about procedure for execution of penalty and deprivation of the right to hold certain position or to be engaged in certain activities;
about recognition of the convict under sentence in mandative production not having criminal record on the bases provided by part two and Item 2) of part three of article 79 UK;
about procedure for review of sentence;
about other questions important on mandative production.
Features and consequence in law of mandative production are also explained to the victim, the civil claimant and the civil defendant (their representatives), it is reported about qualification of actions of the suspect, about the available proofs, their right to the statement of the civil action.
Person performing pre-judicial production shall find out whether the suspect, the victim, the civil claimant and the civil defendant (their representatives) agree to consideration of the case without research of proofs and without their participation in court.
About explanation to participants of process of their procedural law the protocol is constituted.
4. The suspect has the right to declare the petition for application of mandative production in written or oral form. The written petition joins the criminal case file, and oral - is entered in the protocol of legal proceeding.
The petition of the suspect for application of mandative production according to article 99 Code of Criminal Procedure is obligatory for consideration by the body conducting criminal procedure.
Person performing pre-judicial production, immediately after the statement the suspect of the petition, and in cases when it is impossible to resolve immediately the petition, - in time no later than three days from the date of its statement shall make the decision by pronouncement of the resolution on satisfaction or on refusal in satisfaction of the petition.
5. The petition of the mandative production suspected about application shall be authorized taking into account opinions of the victim, civil claimant and civil defendant (their representatives) which shall express them in writing or orally about what person performing pre-judicial production draws up the protocol.
If at least one of the specified participants of process did not express consent with the petition of the suspect, the procedure for mandative production is not applied.
Absence in the matter of the victim, the civil claimant or the civil defendant (their representatives) is not obstacle for application of mandative production.
Bringing by the suspect of the petition for application of mandative production or receipt of consent of the victim, civil claimant and civil defendant (their representatives) with the petition of the suspect under duress from somebody or as a result of inadequate explanation of procedure and effects of mandative production, inadmissibly.
In these cases mandative production is not applied.
6. The petition of the mandative production suspected about application is subject to satisfaction if the bases provided by part two of article 629-1 Code of Criminal Procedure are established.
The resolution on satisfaction or on refusal in satisfaction of the petition of the suspect can be appealed according to the procedure, the Code of Criminal Procedure provided by Chapter 13.
Mandative production is not allowed concerning persons and in the cases specified in parts three, the fourth and fifth article 629-1 Code of Criminal Procedure.
7. The term of mandative production at pre-judicial stage shall not exceed five days which is estimated from the moment of establishment of set of the bases for application of mandative production.
The moment of establishment of the bases for application of mandative production should be considered date of removal by person performing pre-judicial production, resolutions on satisfaction of the petition of the mandative production suspected about application.
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