NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of March 10, 2022 No. 2

About application of the legislation regulating consideration of criminal cases in cassation procedure

For the purpose of uniform and correct application of the current legislation regulating procedure for review in cassation procedure for the court resolutions which took legal effect, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

1. Explain that according to requirements of Item 3 of article 76 of the Constitution of the Republic of Kazakhstan (further - the Constitution) the sentences and other court orders which took legal effect are binding in the territory of the Republic and according to provisions of the Code of penal procedure of the Republic of Kazakhstan (further – the Code of Criminal Procedure) are subject to immediate execution. In this regard review of the court resolutions which took legal effect on criminal cases shall be performed in exceptional cases, is strict according to provisions Codes of Criminal Procedure and not to interfere with their execution.

Review of the court resolutions which took legal effect on criminal cases is made by judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan only on protest of the Attorney-General of the Republic of Kazakhstan (further – the Attorney-General), to representation of the chairman regional or equated to it vessels brought according to the procedure of part three of article 446 Code of Criminal Procedure or according to petitions of persons specified in part one of article 486 Code of Criminal Procedure, the resolution of three judges of the Supreme Court of the Republic of Kazakhstan transferred to cassation instance (further – judges of the Supreme Court).

2. The bases to review in cassation procedure for the court resolutions which took legal effect are only such cases of the wrong application of the criminal and (or) criminal procedure laws which entailed the effects provided by parts one and the second article 485 Code of Criminal Procedure. The list of these bases is exhaustive and is not subject to extensive interpretation.

The court resolutions which took legal effect listed in Items 2) and 3) to part two of article 484 Code of Criminal Procedure are not subject to revision in cassation procedure.

The court resolutions which took legal effect on cases on criminal offenses and crimes of small weight, court resolutions in case of non-compliance with appeal procedure for their appeal, can be reviewed only on protest of the Attorney-General in the presence of the bases, the stipulated in Article 485 Codes of Criminal Procedure.

Court orders of cassation instance can be reviewed on protest of the Attorney-General only in cases when:

1) the court resolution infringes on the state or public interests, safety of the state or can lead to heavy irreversible effects for life, human health;

2) person leaves lifelong imprisonment.

3. On cases on crimes of average weight, heavy and especially serious crimes sentences and resolutions of Trial Courts, after their consideration in Appeal Court, sentences and resolutions of Appeal Courts in the presence of the bases provided by part one of article 485 Code of Criminal Procedure can be protested by the Attorney-General, and also are appealed by persons specified in part one of article 486 Code of Criminal Procedure, in court of cassation instance.

On cases in the relation of persons prosecuted on a charge of crime execution of average weight, heavy or especially serious crime in cases when their actions by subordinate courts were qualified as criminal offense or crime of small weight, the application for revision of court resolutions can be submitted only in case of disagreement with such retraining and formulations of the question about qualification of act under former heavier Article.

Petitions of persons specified in part one of article 486 Code of Criminal Procedure, for review taken legal effect of court resolutions (further - the cassation petition), previously are considered by three judges of the Supreme Court in judicial session for the solution of question of availability of the bases for transfer of the cassation petition with case for consideration in judicial session of cassation instance. These rules on protest of the Attorney-General, the representation of the chairman of the regional or equated to it court brought according to part three of article 446 Code of Criminal Procedure and also on cassation petitions of persons leaving lifelong imprisonment, and their defenders do not extend, and they are considered by court of cassation instance directly.

Judicial sessions on preliminary consideration of the cassation petition are held by judges openly, except cases of restriction of publicity of legal proceedings, the stipulated in Article 29 Codes of Criminal Procedure.

4. Under non-compliance with appeal procedure for appeal of court resolutions cases when court resolution of Trial Court are recognized:

it was not appealed (the petition is not brought) and it took legal effect;

it was appealed (the petition is brought), but in the procedure established by the law the appeal (private) claim, the petition of the prosecutor were withdrawn before its consideration;

it was appealed (the petition is brought), but in connection with the omission of term of appeal appeal the claim, the petition of the prosecutor were returned without consideration;

concerning the convict (justified) it was not reviewed, and appealed (the petition is brought), and reviewed in Appeal Court concerning other persons on this case.

5. The persons listed in part one of article 486 Code of Criminal Procedure, having the right to submit in case of observance of requirements of part one of article 484 Code of Criminal Procedure the cassation petition and when they did not participate when considering the case in Trial and Appeal Courts.

The person who is not recognized in accordance with the established procedure as the participant of process, but proceeding from the actual position having the right to judicial protection of the rights and legitimate interests treats number of other persons having rights to submission of the cassation petition (further – the interested person). The owner of property or the pawnbroker whose property is seized can be carried to such persons or property of which it is seized, and other persons.

In the petition of the interested person it shall be specified in what part the court resolution affects its rights and legitimate interests what provisions of the law are broken when considering the case, and also being of request with indication of the specific bases attracting review of court resolutions.

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