Comment to article 426. Limits of consideration of the case in the appellate instance The Criminal Procedure Code of the Republic of Kazakhstan
1 The court considering the case on appeal shall verify the legality, validity, and fairness of the verdict and decision in that part and only in respect of those convicted persons concerned by the complaint or protest.
2 If, during the consideration of the case, violations of the rights and legitimate interests of other convicts are established, which led to the imposition of an unlawful sentence, the court, in compliance with the rules provided for in this Code, has the right to cancel or amend it also in the unsanctioned, non-protested parts and in respect of persons about whom the complaint or protest has not been filed.
1. Modification or cancellation of a sentence in respect of persons about whom a complaint or protest has not been filed is allowed only in case of cancellation or modification of the sentence in respect of the person concerned by the complaint or protest, and only to bring into line the qualification of the actions of other convicts who jointly committed a criminal offense.
2. When considering a case on appeal or protest against a verdict of the court of first instance, the court may also, in the absence of private complaints or protests, cancel or amend private and other court decisions if they conflict with the decision of the appellate instance adopted on complaints or protests, or do not comply with the case file and the law.
3. The decision (verdict) issued on the consideration of appeals, protests, objections to them and arguments of the parties, ends the proceedings in this court instance.
As in the main trial (Article 340 of the CPC), the consideration of the case in the appellate instance is also limited in the investigation of circumstances relevant to the case both by the circle of convicts, as well as by the legal and factual circumstances of the case. This is the concern of the legislator in ensuring by the higher court the principle of independence of the judge who considered the case on the merits, as well as the stability of the first court decision in the case.
4. The imposition of an unlawful sentence within the meaning of part 2 of Article 426 of the CPC, that is, a violation of the principle of legality in its imposition, in all cases entails the cancellation or modification of such a sentence, regardless of the subject of the appeal, the protest and the circle of convicted persons involved.
5. Part 3 of this Article provides for the cancellation or amendment of private and other court decisions if, during the consideration of the case on appeal, it is established that they conflict with the decision of the appellate instance adopted on complaints, protests, or do not comply with the case materials and the law.
6. Part 4 of this article explicitly states that the proceedings in the appellate instance end with the issuance of a ruling (verdict), based on a new study of the case materials on complaints, protests, objections to them and arguments of the parties.
7. In comparison with a similar norm of the current CPC, the commented norm includes two new parts that legislate certain fundamental procedural points of the limits of consideration of a case in an appellate instance, which were previously provided for in other articles or norms of the law providing for issues not related to the limits of consideration of a case in an appellate instance.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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