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NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of April 20, 2006 No. 4

About some questions of assessment of proofs on criminal cases

(as amended on 31-03-2017)

For the purpose of uniform application of the criminal procedure law according to proofs on criminal cases, the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:

1. The body conducting criminal procedure in case of assessment of proofs on criminal cases shall observe strictly the principles established by the Constitution of the Republic of Kazakhstan and regulations of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure).

Violations of the principles of criminal procedure, depending on their nature and materiality, attract the effects specified in article 9 Code of Criminal Procedure.

In these cases, the court in sentence (resolution) shall motivate nature and importance of the broken principle.

2. According to part one of article 111 Code of Criminal Procedure, proofs on case legally obtained actual data on the basis of which in the procedure determined by the criminal procedure law the body conducting criminal procedure establishes availability or lack of criminal action by the suspect, making or non-execution of this act by the suspect, person accused or defendant, their guilt or innocence, and also other circumstances important for the correct permission of case are.

The correct permission of case shall be based only on the actual data established by testimonies of the suspect, person accused, defendant, victim, witness, the witness having right of defense, the expert opinion, physical evidences, protocols of legal proceedings and other documents.

They can be received during operational search activities, check of materials before registration of a statement, the message on criminal offense in the Unified register of pre-judicial investigations, pre-judicial proceeedings and main legal proceedings.

The actual data obtained from the sources which are not provided by the law cannot be recognized quality of proofs.

3. Proofs are estimated by the judge on the internal belief based on their set, being guided at the same time by the law and conscience.

Assessment of proofs on internal belief means that only the judge directly resolves issues of reliability of the proof, the validity or falsehood of the containing data, their sufficiency in total for final, correct conclusion and reasons for the decision.

The judge estimates proofs, being guided by the law, that is, checking observance of the rules of law establishing procedure for collecting and fixing of proofs, admissibility and their relevancy to case.

4. By consideration of criminal case, the court according to article 125 Code of Criminal Procedure estimates each proof from the point of view of relevancy, admissibility, reliability, and all collected proofs in total - sufficiency for permission of case.

The body conducting the criminal procedure having no right to attach to the criminal case file the actual data which are not important for its permission.

The court shall recognize those actual data which confirm as attributable proofs, confute or call into question the circumstances important for case.

The proof is recognized inadmissible, in case of the human rights violations and the citizen guaranteed by the Constitution of the Republic of Kazakhstan, establishment of the circumstances specified in article 112 Code of Criminal Procedure.

Resolving issue of inadmissibility of proofs on case, the court shall find out in each case in what the allowed violation was specifically expressed. At the same time the court shall not allow cases of unreasonable exception of admissible proofs of case papers, and also research in judicial session of actual data, inadmissible as proofs.

Reliability of the proof is determined by check, comparison of one proofs to others, taking into account all circumstances by case.

If collected proofs establish the circumstances specified in article 113 Code of Criminal Procedure which are subject to proof on criminal case, then they are considered sufficient for the correct permission of case.

5. The court has the right to recognize the proof inadmissible on own initiative or according to the petition of the parties.

The petition of the participant of process for recognition of the proof inadmissible and its exception shall be motivated and can be declared at any stage of legal proceedings in written or in oral form.

The petition declared in writing is filed, and oral - is entered in the protocol of legal proceedings.

The judgment according to the petition for recognition of the proof inadmissible, declared in stage of initial hearing of case or court investigation, after the research and assessment of the disputed proofs, shall be motivated in sentence or the court order.

If the petition is declared during court investigation and there is no need of additional verification of the disputed proof, then the court in the consultative room has the right to issue on this matter the decree.

6. If the petition for proof exception as inadmissible, is declared by the defendant, his legal representative, the defender, for motive of obtaining it with violation of requirements of the law, then these arguments are confuted by the state prosecutor.

If the petition on the specified bases is declared by the state prosecutor, the private prosecutor, the victim, the civil claimant and the defendant (except the defendant, his legal representative and the defender) and their representatives, then the participant of process who declared them shall prove the arguments.

7. When considering the case the court needs to observe the principle of competitiveness and equality of participants. According to article 23 Code of Criminal Procedure the court is not criminal prosecution authority, is not on the side of accusation or protection, and creates necessary conditions for execution by the parties of their procedural obligations and implementation of the rights by them. Deprivation of the parties of opportunity to represent materials and to research them in judicial session as a result of illegal recognition by their court inadmissible or irrelevant proofs, is fundamental breach of the criminal procedure law attracting cancellation of sentence according to part two of article 436 Code of Criminal Procedure.

Obligation produce the evidence confirming the charge brought to the defendant it is assigned to the prosecutor.

The defender shall use all means and methods provided by the law for proper implementation of protection of the defendant.

The court cannot expand limits of accusation and worsen the defendant's situation without petition of the parties.

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