Comment to article 469. The limits of sentencing at a new hearing of the case The Criminal Procedure Code of the Republic of Kazakhstan

If the first appeal verdict or decision is overturned based on a complaint or protest filed in defense of the convicted person, and the second verdict is overturned based on a complaint or protest by the prosecution for leniency of punishment or due to the need to apply the law on a more serious criminal offense, the appellate instance considering the case for the third time may impose a more severe punishment or apply the law a more serious criminal offense than the second sentence, but has no right to increase the punishment or apply the law on a more serious criminal offense compared to the first sentence.

The verdict passed by the court of appeal at a new hearing of the case may be appealed in a general manner.

Upon new consideration of the case, the court of the first instance of appeal, after sending the case for a new judicial review, both the court of first instance and the court of appeal independently appoints punishment, regardless of the decisions of the courts previously rendered in the case, taking into account the general principles of sentencing, that is, taking into account the nature and degree of public danger of the crime, the identity of the perpetrator, This includes his behavior before and after the commission of the crime, circumstances mitigating and aggravating responsibility and punishment., as well as the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family or dependents.

However, it should be borne in mind that if the first appeal verdict is overturned on a complaint or protest in defense of the convicted person, and the second verdict is overturned on a complaint or protest by the prosecution for leniency of punishment or in connection with the need to apply the law on a more serious crime, the court considering the case for the third time may to impose a more severe punishment or apply the law on a more serious crime than for the second sentence, but has no right to increase the punishment or apply the law on a more serious crime compared to the first sentence.

The verdict passed by the court of appeal at a new hearing of the case may be appealed in the general procedure (Part 2 of Article 469 of the CPC).

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

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