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NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of July 7, 2016 No. 4

About practice of consideration by courts of criminal cases in conciliatory production

(as amended of the Normative resolution of the Supreme Court of the Republic of Kazakhstan of 11.12.2020 No. 6)

Having discussed practice of courts on consideration of criminal cases in conciliatory production, for the purpose of ensuring unity of court practice and the correct application of the legislation in case of the conclusion of the procedural agreement in the form of the transaction on recognition of fault and consideration of criminal cases by courts in conciliatory production, the plenary session of the Supreme Court of the Republic of Kazakhstan

decides:

1. Explain that main objective of the conclusion of the procedural agreement in the form of the transaction on recognition of fault (further - the agreement on recognition of fault) is bystry and complete disclosure, investigation of crimes and operational accomplishment other stipulated in Article 8 Codes of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure) tasks of criminal procedure by the accelerated pre-judicial production and implementation of legal proceedings of case in the reduced procedure in accordance with the terms of the signed agreement in case of strict observance of the principles of legality, judicial protection of rights and freedoms of man and citizen, presumption of innocence and other main beginnings of criminal procedure.

2. The agreement on recognition of fault can be signed only concerning crime of small or average weight or serious crime or their set.

According to requirements of Item 1) of part two of article 613 Code of Criminal Procedure agreement signature about recognition of fault is not allowed if the cumulative offenses take place, at least one of which belongs to the category especially heavy or the suspect, the person accused, the defendant does not agree with suspicion, accusation in making at least of one crime entering set.

The agreement on recognition of fault cannot be signed if it can affect comprehensiveness, completeness and objectivity of research of the circumstances affecting the rights and legitimate interests of other persons which are not party litigants.

On criminal case about the crimes committed in partnership, the procedural agreement in the form of the transaction on recognition of fault cannot be signed with the certain accomplice. Such agreement is allowed only on condition of its conclusion at the same time with all assisting offenders.

3. The agreement on recognition of fault can be signed according to the petition of the suspect, person accused, defendant or his defender or at the initiative of the prosecutor. In case of agreement signature about recognition of fault according to the petition of the defender or at the initiative of the prosecutor at stage of pre-judicial investigation in criminal case voluntary expression by the suspect accused desires on the conclusion of such agreement shall be properly established and fixed.

The criminal procedure law does not establish certain form of the petition for agreement signature of recognition of fault therefore according to requirements of part two of article 99 Code of Criminal Procedure the written petition shall be attached to the criminal case file, oral - is entered in the protocol of investigative action or judicial session.

4. The petition of the suspect, person accused, defendant or his defender or prosecutor for agreement signature for recognition of fault can be submitted: at stage of pre-judicial production from the moment of acquisition by person of the status of the suspect; in court of the first and appellate instance - before removal of court to the consultative room.

5. Agreement signature about recognition of fault on cases on criminal offenses by the law is not provided.

In case of committing by person of criminal offense and crime on which the agreement on recognition of fault is signed the body of pre-judicial investigation shall not connect on them cases as proceeedings about criminal offense are performed in protocol form of pre-judicial investigation, and proceeedings about crime within the procedural agreement - according to the rules provided by Chapter 63 of the Code of Criminal Procedure.

In case of committing by person of criminal offense and crime on which the agreement on recognition of fault is not reached and is not concluded criminal cases on them according to part four of article 526 Code of Criminal Procedure can be connected for single production in the form of inquiry or pretrial investigation.

6. If in court criminal case with the signed agreement on recognition of fault in which cases on criminal offense and crime which does not belong to the category especially heavy are connected arrived, then the court from initial hearing returns case to the prosecutor with provision of opportunity to make pre-judicial investigation according to requirements of the Code of Criminal Procedure.

7. If in court criminal case with the signed agreement on recognition of fault concerning person accused of making of two and more crimes arrived, at least one of which belongs to the category especially heavy, then the court from initial hearing returns case to the prosecutor due to the lack of the bases for application of conciliatory production.

8. If during legal proceedings on criminal case from the defendant or all defendants who are assisting offenders the petition for agreement signature for recognition of fault arrived, then the court according to article 628 Code of Criminal Procedure interrupts legal proceedings and provides to the parties reasonable time for its conclusion.

In case of the conclusion of the procedural agreement on recognition of fault the judge decides about continuation of consideration of the case in conciliatory production by rules of Chapter 64 of the Code of Criminal Procedure.

9. If during the main legal proceedings on criminal case about especially serious crime the state prosecutor by partial refusal of accusation changes accusation to less serious crime and the victim will not insist on former prosecution, then the court shall dismiss the case in part, and on new accusation to explain to the parties about their right to agreement signature about recognition of fault.

10. The body conducting criminal procedure to the direction to the prosecutor of the arrived petition for agreement signature for recognition of fault shall according to requirements of Item 22) to part six of article 71 Code of Criminal Procedure explain to the victim that he has the right to know about intention of the parties to sign the agreement on recognition of fault, on its conditions and effects, availability of the right at it to offer the terms on compensation of the damage caused by crime or to object to its conclusion. About production of this action at stage of pre-judicial investigation with observance of requirements of article 199 Code of Criminal Procedure the protocol is constituted, and in legal proceedings - it is entered in the protocol of judicial session.

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