of December 19, 2003 No. 11
About practice of pronouncement of private resolutions by courts on criminal cases
The analysis of practice of pronouncement of private resolutions by courts of the republic showed that along with establishment of the reasons and conditions promoting making of offenses they exert positive impact on enhancement of activities of bodies of inquiry and preliminary inquiry, public prosecutor's supervision and court practice, and also on forming at citizens of respect for the right.
For the purpose of development of uniform practice of pronouncement of private resolutions plenary session of the Supreme Court of the Republic of Kazakhstan
1. Courts by consideration of criminal cases should consider that according to part 2 of Article 8 of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure), the procedure for production established by the law on criminal cases shall provide protection against insubstantial accusation and condemnation, against illegal restriction of rights and freedoms of man and citizen, to promote strengthening of legality and law and order, the prevention of crimes, forming of respect for the right.
In this regard private resolutions of courts shall serve as the efficient instrument of respecting the rule of law, recognition of primacy and inherence of human rights and freedoms, preventions of crimes and other offenses, opening and remedial action in activities of state bodies, officials and business entities.
2. Courts should not leave without due reaction of violation of the regulations of the procedural law allowed by bodies of inquiry, investigation, prosecutors, which entailed infringement of constitutional rights and legitimate interests of citizens. In such cases courts should issue private decrees with indication of the specific officials who allowed them.
3. The list of the bases of pronouncement of private resolutions specified in article 405 Code of Criminal Procedure is not exhaustive in this connection courts have the right to react also to other facts: failures of legal procedures, disrespect for court, violation of terms by bodies of inquiry, investigation.
The court can issue the private decree and incentive nature.
If during the main legal proceedings the violations of the law requiring immediate elimination are established, then the court according to article 344 Code of Criminal Procedure has the right to interrupt trial of case and in the consultative room to issue the private decree which is at once announced in court room and goes for execution.
4. According to part 5 of article 23 Code of Criminal Procedure the court is not criminal prosecution authority, is not on the side of accusation or protection and does not express any interests in addition to interests of the right therefore if the reasons and conditions promoting crime execution were consequence of action or failure to act of the official or other person which contain essential elements of offense, he has no right to put in the private resolution question of attraction them to criminal liability, and can bring this fact to the attention of bodies whose competence includes the solution of these questions only.
5. According to parts 4 and 5 of article 53 Code of Criminal Procedure courts of the first, appeal and cassation instances in case of establishment of the circumstances specified in article 405 Code of Criminal Procedure issue the private decree which is performed according to part 6 of article 471 Code of Criminal Procedure.
5-1. The investigative judge when implementing the stipulated in Article 55 Codes of Criminal Procedure of powers has the right to issue the private decree on the bases specified in part 6 of article 56 Code of Criminal Procedure. At the same time the investigative judge shall not determine questions which can be cognizance item in case of permission of criminal case in essence, including draw conclusions about validity or absence of proof of fault, about relevancy, admissibility, reliability and sufficiency of collected proofs on case.
5-2. At pre-judicial stage of criminal procedure the investigative judge during the implementing of the powers and identification of the facts of violations and illegal restrictions of the rights and freedoms of the citizens guaranteed to them by the Constitution of the Republic of Kazakhstan and the laws of the Republic of Kazakhstan as well in case of the establishment of the facts of illegal restriction and other violations protected by the law of interests of the organizations within judicial control issues the private decree on elimination and the solution of question of responsibility of persons which allowed violation of the law.
6. Pronouncement of the private resolution by Trial Court is not obstacle for pronouncement of the private resolution by courts of higher instances when on this case there are other circumstances requiring similar reaction.
7. The private resolution shall be legal, reasonable and is decided on comprehensively, fully and objectively researched facts of the case as according to part 6 of article 405 Code of Criminal Procedure it is the binding document attracting consequence in law.
Courts have no right to specify in private resolutions of circumstance, the legality and justification of the made decision calling into question.
The private resolution shall not contain general formulations and phrases. In it specific violation of the law, persons which allowed them, established by court the reasons and conditions promoting crime execution or other offense, and also the proof on which conclusions of court are based is specified. In the private resolution cannot be instructed, recommendations about the questions of productive activity entering exclusive competence of relevant organ or organization.
Having determined the fact of giving by the victim, witness, translator, expert, the specialist of obviously false evidences which received the corresponding assessment in court resolution, and equally in subfalsehood of documents, the court also has the right to reflect the conclusions about unauthenticity of these indications and subfalsehood of documents in the private resolution, having sent it to the prosecutor for acceptance of adequate measures.
8. According to part 1 of article 405 Code of Criminal Procedure private decrees shall be issued in the consultative room and only on that case which directly is considered in court, and in it data and the facts from another matter cannot contain.
In substantive provisions of the resolution the term and procedure for its appeal and bringing of the petition by the prosecutor shall be specified.
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