Comment to article 428. Appointment of the Court of Appeal session The Criminal Procedure Code of the Republic of Kazakhstan

1 Upon receipt of a criminal case with complaints or a protest, the court of appeal appoints a court session and notifies the parties of the time and place of consideration of the case.

2 Upon receipt of a petition from a convicted person in custody to participate in a court session of the appellate instance when considering a complaint or protest by a prosecutor aimed at worsening his situation, the court of appeal shall decide to consider the case with the direct participation of the convicted person or using scientific and technical means to ensure the remote participation of the named person, who to the appropriate authorities for execution.

3 The issue of summoning a convicted person in custody to a court hearing in other cases is decided by the court of appeal. The participation of the convicted (acquitted) person in the hearing of the appellate instance is mandatory when the court examines new evidence that was not the subject of consideration by the court of first instance. Consideration of the case in such cases in the absence of the convicted (acquitted) is allowed in the presence of the circumstances specified in Article 335 of this Code.

4 The participation of the defender in the appellate instance shall be carried out in the cases provided for in the first part of Article 67 of this Code. In cases where the case is being considered against a minor convicted person, either on the appeal of the victim (civil plaintiff), their representatives, or the protest of the prosecutor, which raises the issue of worsening the situation of the convicted person, or when pre-trial proceedings and consideration of the case in the court of first instance were carried out without the participation of the accused, or when the appellate instance investigated new evidence the participation of a defender in the appellate instance is mandatory.

5 Persons who, in accordance with Article 414 of this Code, have been granted the right to appeal a verdict, as well as the defense attorney of the convicted (acquitted) or the victim's representative who accepted the assignment after the verdict, shall in all cases be admitted to the court of appeal. At their request, they are given the floor to speak in support of their complaints or protests or objections to them.

6 The participation of the prosecutor in the appellate instance is mandatory, with the exception of cases of private prosecution.

In the appellate instance, the prosecutor has the powers provided for in Article 337 of this Code.

The non-appearance of other participants in the process, with the exception of the defender, who were promptly notified of the place and time of the appeal hearing, does not prevent the case from being considered.

1. After the receipt of a criminal case with an appeal or protest, the judge appoints a court session, the secretary of the court session notifies the parties of the time and place of consideration of the case.

2. Within the meaning of the law, the issue of the expediency of a convicted person's participation in a court of appeal hearing is decided by this court, with the exception of cases listed in the law when the participation of a convicted person is mandatory. At the same time, cases of mandatory participation of the defender and the prosecutor are stipulated.

The circle of persons who are allowed to participate in the court session as a party to the case has been determined, with the right to speak in support of the complaints or protests filed or objections to them, and the possibility of considering the case is provided in the absence of other participants in the process, with the exception of the defender, who are promptly notified of the place and time of the appeal hearing.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

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