of January 5, 2015 No. 1
About the organization of public prosecutor's supervision of legality of court resolutions and representation of interests of the state for criminal cases in courts of the first, appeal and cassation instances
For the purpose of ensuring proper realization by prosecutors of powers in courts of the first, appeal and cassation instances, being guided by the subitem 4) of article 11 of the Law of the Republic of Kazakhstan "About Prosecutor's office", I ORDER:
1. To the main military prosecutor, the Chief transport prosecutor, prosecutors of areas, of Astana, Almaty (further - prosecutors of areas), the cities and areas, to military and specialized prosecutors it is permanent to enhance work on maintenance of crown case as one of efficient means of fight against crime.
2. Provide participation of prosecutors in legal proceedings of all criminal cases of public and private and public accusation, and also in hearing of cases on which pre-judicial investigation is begun according to the procedure of the p. 4 of Art. 32 of the Code of Criminal Procedure.
Staff of city, district prosecutor's offices, and also procedural prosecutors participate in meetings of Trial Courts. On difficult and mnogoepizodny cases several prosecutors can hold crown case.
On criminal cases with the indictment approved by the Attorney-General and his deputies, the state prosecutors are appointed in coordination with management of the Prosecutor General's Office, except for put on which the procedural prosecutor is appointed.
Staff of prosecutor's offices of areas on territoriality participates in meetings of specialized interdistrict criminal court judge, specialized interdistrict juvenile court (further - juvenile court), and also courts appeal instances. In the cases provided st.st.307 and 317 Codes of Criminal Procedure at the request of prosecutor's office of area participation on criminal cases in meetings of juvenile courts, and also in field meetings of specialized interdistrict criminal court judge can be provided with city and district prosecutor's offices.
In case of impossibility of providing with the Main transport Prosecutor's Office of participation of employees in meetings of Appeal Courts, participation on them is provided with employees of territorial prosecutor's offices of areas. The Main transport Prosecutor's Office shall report to the corresponding territorial prosecutor about the forthcoming judicial session in writing. The Main transport Prosecutor's Office is notified on results of consideration of criminal case.
Staff of Department on supervision of legality of court resolutions and representation of interests of the state on criminal cases (further Department) participates in meetings of cassation judicial board on criminal cases of the Supreme Court.
3. The procedural prosecutor participates in Trial Court on criminal cases on which he is appointed the head of prosecutor's office as the procedural prosecutor. Its powers are regulated by the Code of Criminal Procedure and regulatory legal acts on the organization of supervision by procedural prosecutors.
On other cases the staff of city, district and regional prosecutor's offices participates, respectively.
4. The state prosecutor (except for the procedural prosecutor) approves line item with the prosecutor who approved the indictment in cases:
1) solutions of question of refusal (including partial) from accusation maintenance;
2) availability of opinion on need of retraining of act of the defendant;
3) refusal of the civil action made within criminal case for the benefit of the state or the statement of the petition for its leaving without consideration.
In case of disagreement of the prosecutor who approved the indictment with line item of the state prosecutor, the issue of replacement of the state prosecutor is resolved or charges are held by the prosecutor who approved the indictment.
If during the main legal proceedings there was need of presentation to the defendant of heavier accusation or differing from initial, the prosecutor who approved the indictment with observance of requirements of Art. 340 of the Code of Criminal Procedure draws up the new indictment and gives him to the state prosecutor for maintenance of new accusation.
5. The state prosecutor shall provide comprehensive, complete and objective investigation with court of the proofs collected during pre-judicial investigation including by the timely statement of petitions for carrying out additional investigative actions, challenge of extra witnesses, experts, specialists and others. If necessary he shall petition for recognition of arguments of participants of process by inadmissible and dispute their unreasonable petitions, and also react to any violations of legality which limit the rights of participants of criminal procedure.
In case of absence on judicial session of other participants of process, the state prosecutor shall petition before court for initiation of questions of the corresponding responsibility of persons or imposing of cash penalties, and in the presence of the bases to petition for change to the defendant of measure of restraint on more strict.
In case of line item statement about appointment to the defendant of punishment, the state prosecutor shall be guided by requirements of the current legislation the offered punishment was proportional and fair taking into account nature and degree of public danger of crime, the identity of the guilty person, and also the circumstances commuting and aggravating criminal liability and penalty. From among provided for the committed crime by the relevant article of the Criminal code (further - UK) to offer the most severe looking of punishment to court only in cases if its less severe looking is not able to provide punishment goal achievement.
The speech of the state prosecutor in judicial debate shall be motivated, legally competent and making preventive impact.
6. The state prosecutor shall check legality of the court resolution which is taken out with its participation about what the corresponding entry on it is made and to report on the head of prosecutor's office or his deputy who writes the necessary instructions.
The illegal or unreasonable court resolution is subject to obligatory protest (the p. 2 of Art. 414 of the Code of Criminal Procedure). Copies of court resolution, protest join supervising proceeedings.
Questions of check of legality of court resolutions in appeal time are regulated by regulatory legal acts on the organization of supervision by procedural prosecutors if case was considered with their participation.
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