Comment to article 485. Grounds for judicial review of judgments and judgments that have entered into legal force The Criminal Procedure Code of the Republic of Kazakhstan

The grounds for judicial review of sentences and decisions that have entered into force are those admitted during the investigation or judicial review of the case.

violations of the constitutional rights and freedoms of citizens or the improper application of criminal and criminal procedure laws, which led to:

1) conviction of an innocent person;

2) unjustified acquittal or termination of the case;

3) incorrect qualification of the convicted person's act;

4) depriving the victim of the right to judicial protection;

5) incorrect imposition of punishment or inconsistency of the punishment imposed by the court with the severity of the criminal offense and the personality of the convicted person;

6) incorrect resolution of a civil claim, except in cases where the claim is dismissed;

7) illegal or unjustified decision-making due to newly discovered circumstances or when applying compulsory medical measures.

Judicial acts that have entered into legal force are also reviewed by way of judicial supervision if:

1) a judicial act affects the state or public interests, the security of the state, or may lead to serious irreversible consequences for human life and health;

2) the person has been sentenced to death or life imprisonment.;

3) there is an idea of eliminating the contradictions that have arisen in the case provided for in the second part of Article 467 of this Code, or a decision of the judge of the supervisory board of the Supreme Court of the Republic of Kazakhstan, issued due to newly discovered circumstances.

Death penalty sentences that have entered into legal force are reviewed again by judicial review after the lifting of the moratorium on the execution of the death penalty.

Judicial acts that have entered into force are reviewed repeatedly by way of supervision upon the proposal of the Chairman of the Supreme Court of the Republic of Kazakhstan or the protest of the Prosecutor General of the Republic of Kazakhstan, submitted in connection with the establishment of evidence that the adopted decision may lead to serious irreversible consequences for life, human health or the economy and security of the Republic of Kazakhstan.

The list of grounds for supervisory review of court decisions, as defined in Article 485 of the CPC, is exhaustive. At the same time, the grounds specified in Part 1 of Article 485 of the CPC are organically related to the violation of the principles of criminal procedure and the general conditions of the preliminary investigation and the main trial, without which it is impossible to ensure the effective implementation of the principles of criminal proceedings.

Incorrect application of the law within the meaning of Part 1 of Article 485 of the CPC presupposes all cases of incorrect application of the norms of the criminal and criminal procedure law in a particular case, which led to the consequences specified in paragraphs 1-7 of Part 1 of Article 485 of the CPC.

The nature of the grounds for reviewing court decisions in accordance with Part 1 of Article 485 of the CPC is given in the resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated April 28, 2000 No. 2 "On the procedure for criminal proceedings in a supervisory instance" (paragraphs 7-12). In accordance with paragraph 1 of Part 1 of Article 485 of the CPC, persons should be considered innocent if a guilty verdict has been passed in the absence of a crime event, corpus delicti, or if their participation in the commission of a crime is not proven. An acquittal or a decision to dismiss a case should be regarded as unfounded in cases where the evidence available in the case has been incorrectly assessed, the court's conclusions contradict the factual circumstances of the case, material or procedural laws have been incorrectly applied, or other circumstances have been established that cast doubt on the legality and validity of the decision to acquit the defendant or to dismiss the case. Other violations of the criminal procedure law cannot in themselves be grounds for reviewing an acquittal that has entered into legal force, a decision to terminate a criminal case, or another decision rendered in favor of the defendant, if these court decisions are not questioned in the complaints or protest.

On the grounds provided for in paragraph 3 of Part 1 of Article 485 of the CPC, sentences may be reviewed for which the court has given an incorrect qualification to the actions of the convicted person.

On the grounds provided for in paragraph 4 of Part 1 of Article 485 of the CPC, sentences and decisions may be reviewed at the supervisory petitions of a person recognized as a victim in accordance with the procedure established by law, or his representatives.

The deprivation of the victim's right to judicial protection may be evidenced by significant violations of his rights provided for by the CPC, in particular, the failure of the victim to be recognized as a private prosecutor when the prosecutor refuses to charge, the deprivation of his right to participate in court proceedings, to speak in court arguments, the incorrect resolution of a civil claim filed by the victim, etc., which affected the correctness of the resolution of the criminal case. the creature.

The discrepancy between the prescribed punishment and the severity of the crime and the personality of the convicted person due to its excessive severity or excessive leniency may occur in cases where the punishment was imposed by the court without complying with the requirements of the law on its individualization. In this case, the punishment may be considered inconsistent with the severity of the crime and the personality of the convicted person both in cases where it is imposed within the scope of the sanction of the article of the criminal law under which the person was convicted, and in cases where it is imposed in violation of the maximum sanction of the criminal law or when a more lenient punishment is imposed than provided for in the relevant article of the Criminal Code without the application of art.55 CC. The discrepancy between the punishment of the severity of the crime and the personality of the convicted person can occur both when the type of punishment is incorrectly chosen, and when it is correctly chosen, but with an incorrect definition of its size or duration.

Excessively harsh punishment should be recognized as one that clearly does not correspond to the nature and degree of public danger of the crime, the identity of the perpetrator and the specific circumstances of the case mitigating responsibility, when the court did not use the opportunities provided by law to apply punishment not related to imprisonment, imposed punishment without taking into account the requirements of Articles 52, 53 of the Criminal Code. The discrepancy between the punishment of the gravity of the crime and the personality of the convicted person due to his excessive leniency may, in particular, indicate the imposition of punishment without taking into account the circumstances provided for in Article 54 of the Criminal Code, the imposition of a more lenient punishment than provided for by law, in the absence of exceptional circumstances provided for in Article 55 of the Criminal Code, the unjustified application of a suspended sentence, etc.

Incorrect resolution of a civil claim is also the basis for reviewing judicial acts by way of supervision, except in cases where the claim is left without consideration.

Paragraph 7 of Part 1 of Article 485 of the CPC stipulates that unlawfully or unreasonably issued decisions on newly discovered circumstances or when applying compulsory medical measures are reviewed by judicial review.

Unlike the grounds for reviewing court decisions in accordance with Part 1 of Article 485 of the CPC, regardless of filing a petition or bringing a protest, the court decisions specified in Part 2 of Article 485 of the CPC are subject to review.

At the same time, a court verdict by which a person is sentenced to death or life imprisonment can definitely be reviewed not only when it was not the subject of an appeal review (not appealed, not protested by the parties), but also necessarily upon its entry into force after the review on appeal (was appealed, protested by the parties), as well as after the lifting of the moratorium on the execution of the death penalty. The indefinite moratorium in this part was introduced by Decree of the President of the Republic of Kazakhstan dated December 17, 2003 No. 1251 "On the introduction of a moratorium on the death penalty in the Republic of Kazakhstan".

An innovation of the CPC is that judicial acts that have entered into force may be re-reviewed by way of supervision upon the proposal of the Chairman of the Supreme Court of the Republic of Kazakhstan or the protest of the Prosecutor General of the Republic of Kazakhstan, introduced in connection with the establishment of evidence that the adopted decision may lead to serious irreversible consequences for life, human health or the economy and security of the Republic Kazakhstan.

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

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