Commentary on Article 35. Circumstances Precluding Proceedings in a Case under the Criminal Procedure Code of the Republic of Kazakhstan

1. A criminal case shall be terminated:

1) due to the absence of an event constituting a criminal offence;

2) due to the absence of the elements of a criminal offence in the act;

3) as a result of an act of amnesty, if it eliminates the application of punishment for the acts committed;

4) upon the expiry of the limitation period for bringing a person to criminal liability;

5) due to the absence of a complaint by the victim in cases involving criminal offences provided for in Parts Two and Three of Article 32 of this Code, except for the cases provided for in Part Four of Article 32 of this Code, as well as where a private prosecutor withdraws the charge in cases involving criminal offences provided for in Part Two of Article 32 of this Code, except for the cases provided for in Part Four of Article 32 of this Code, or where the head of a commercial or other organisation or an authorised body withdraws an application to bring a person to criminal liability;

6) where a law abolishing criminal liability for the act committed has entered into force, or where the Constitutional Council of the Republic of Kazakhstan has declared unconstitutional a law or other regulatory legal act applicable to the criminal case in question, upon which the classification of the act as a criminal offence depends;

7) where, in respect of a person, there is a court judgment that has entered into legal force on the same charge or another unrevoked judicial ruling establishing the impossibility of criminal prosecution;

8) where, in respect of a person, there is an unrevoked decision of a criminal prosecution body terminating criminal prosecution on the same suspicion;

9) in respect of a person who committed an act prohibited by criminal law while legally insane, except where proceedings in the case are necessary for the application of compulsory medical measures against that person;

10) in connection with the refusal of an authorised body or official to give consent to bringing to criminal liability a person who enjoys privileges or immunity from criminal prosecution;

11) in respect of a deceased person, except where proceedings in the case are necessary for the rehabilitation of the deceased or the investigation of the case in respect of other persons, as well as for establishing property obtained by unlawful means, monetary funds and other valuables subject to confiscation and intended to ensure compensation for the damage caused;

12) in respect of a person who is subject to release from criminal liability by virtue of the provisions of the Criminal Code of the Republic of Kazakhstan.

2. Proceedings in a case shall be terminated on the grounds provided for in Paragraphs 1) and 2) of Part One of this Article both where the absence of an event constituting a criminal offence or the absence of the elements of a criminal offence has been proven and where their existence has not been proven, provided that all possibilities for collecting additional evidence have been exhausted.

3. Proceedings in a case shall also be terminated on the ground provided for in Paragraph 2) of Part One of this Article in cases where the infliction of harm by the suspect, accused or defendant is lawful, or where the act was committed by the suspect, accused or defendant under circumstances which, in accordance with the Criminal Code of the Republic of Kazakhstan, preclude its recognition as a criminal offence and the imposition of criminal liability.

4. Termination of a criminal case on the grounds specified in Paragraphs 3), 4) and 11) of Part One of this Article shall not be permitted if the person whom the applicant directly identifies as the person who committed the criminal offence (a witness entitled to the right to defence), the suspect, the accused, as well as the defendant or their legal representatives, and, in the cases provided for in Paragraph 11) of Part One of this Article, the persons listed in Part Two of Article 66 of this Code who are entitled to exercise the defence of the suspect, accused or defendant alongside a lawyer, object to such termination. In this case, proceedings in the case shall continue and, where grounds exist, shall be completed by the delivery of a guilty verdict with the person being released from punishment or criminal liability.

The consent of the victim or their representative shall not be required for a decision to terminate a criminal case on the grounds specified in Paragraphs 3), 4), 9), 10) and 11) of Part One of this Article.

Termination of a criminal case simultaneously entails termination of criminal prosecution.

5. A decision to terminate a criminal case in respect of a person who had not attained, at the time of committing the act, the age at which criminal liability may be imposed in accordance with the law shall be adopted on the ground specified in Paragraph 2) of Part One of this Article. A decision to terminate a criminal case on the same ground shall also be adopted in respect of a minor who, although having attained by the time of committing the act the age at which criminal liability arises under the law, was unable, due to a delay in mental development unrelated to a mental disorder, to fully understand the actual nature and social danger of their actions (omissions) and to control them.

6. Upon discovering circumstances precluding criminal prosecution, the criminal prosecution body shall, at any stage of pre-trial proceedings, issue a decision to terminate the criminal case. The prosecutor shall also have the right, before the commencement of consideration of the case in the main court hearing, to withdraw it from the court and terminate it on the grounds provided for in this Article. After the prosecutor has withdrawn the case from the court for the purpose of its termination, conducting new pre-trial proceedings in respect of that case and resubmitting it to the court shall not be permitted.

7. Upon discovering circumstances precluding criminal prosecution in court, the public prosecutor shall be obliged to declare that they are withdrawing the charge. A statement by the public prosecutor withdrawing the charge shall not prevent the continuation of the criminal proceedings if the private prosecutor continues to maintain the charge.

8. Upon discovering circumstances precluding criminal prosecution, the court shall be obliged to resolve the issue of terminating the criminal case.

9. When terminating a criminal case, criminal prosecution bodies and courts shall, where the actions of a person contain elements of an administrative or disciplinary (corruption-related) offence, be obliged to forward the materials to the competent authorities (officials) within ten days for the purpose of deciding whether to impose administrative or disciplinary liability.

The article under commentary regulates the issues of termination of a criminal case during pre-trial investigation and judicial proceedings: the conditions, grounds, sequence and procedure. Termination of a criminal case is one of the forms of concluding proceedings in a criminal case, and the adoption of such a decision simultaneously establishes the termination of criminal prosecution (Part 4 of Article 35 and Article 46 of the CPC). In this regard, the CPC does not regulate the so-called institution of “refusal materials”, which does not follow from the structure of its provisions due to the abolition of the stage of instituting a criminal case in the form that existed during the period when the Criminal Procedure Code of the Republic of Kazakhstan dated 13 December 1997 was in force. The provisions of Article 35 of the CPC occupy a special place in the criminal procedural activities of the bodies conducting criminal proceedings, since their application means that a criminal case pending before criminal prosecution bodies does not become the subject of judicial proceedings, while a case pending before a court does not end with the delivery of a court judgment. Thus, the matter concerns circumstances that may arise or be discovered at any stage of criminal proceedings — during the pre-trial investigation of a criminal case, during the main court hearing, during appellate and cassation proceedings, etc. It is impossible to ignore such circumstances if they exist; this is prohibited by law. Failure to take them into account would render the criminal process meaningless and even unlawful. The application of the provisions governing the institution of termination of a criminal case prevents the unnecessary expenditure of the efforts, resources and time of the bodies conducting criminal proceedings and avoids unnecessarily involving citizens in criminal proceedings.

Article 35 of the CPC distinguishes 12 grounds entailing the termination of proceedings in a criminal case by the bodies conducting criminal proceedings, within the limits of their competence and at the relevant stages of proceedings in the criminal case. Where grounds exist, a criminal case may be terminated both in cases involving criminal misdemeanours and in cases involving crimes. Unlike criminal prosecution bodies, a court may terminate a criminal case at any stage of the criminal process.

All circumstances precluding the criminal prosecution of a person are conventionally divided into exonerating and non-exonerating grounds. The grounds for terminating a criminal case that exonerate a person and establish their innocence are specified in Paragraphs 1), 2), 5), 6), 7) and 8) of Part 1 of Article 35 of the CPC (Part 1 of Article 37 of the CPC). All the remaining grounds, accordingly, are non-exonerating grounds and establish the person's guilt in committing a crime. The practical application of each circumstance precluding proceedings in a criminal case necessitates its independent analysis and generalisation. Taken together, this makes it possible to obtain a clear understanding of the place of each such circumstance in the criminal procedural activities of the bodies conducting criminal proceedings.

3. Thus, the absence of an event constituting a criminal offence (Paragraph 1) of Part 1 of Article 35 of the CPC), as the first circumstance precluding proceedings in a case, means that the cause of an event initially perceived as a criminal offence is not the actions (omissions) of the suspect, accused or defendant, but other causes arising from natural emergencies, the actions of an animal or the actions of the victim themselves. That is, in this case, we are dealing with the absence of a subject — the direct perpetrator of the crime in the sense of criminal law. For example, criminal liability is excluded for consequences caused by natural disasters that arise independently of the will and wishes of people (tsunamis, hurricanes, earthquakes, floods, volcanic eruptions, etc.). Similarly, there is no criminal offence in the actions of an animal that attacks a person and causes harm to their health. There is no event constituting a criminal offence in the event of an accident (for example, the death of a person as a result of careless handling of electricity or a vehicle overturning as a result of improper driving, etc.) or a person's suicide.

4. The absence of the elements of a criminal offence is established both in a decision of a criminal prosecution body and in an acquittal delivered by a court. The elements of a criminal offence (explanation to Paragraph 2) of Part 1 of Article 35 of the CPC) traditionally consist of four elements, each of which has a specific set of objective and subjective characteristics (the object, the objective aspect, the subject and the subjective aspect).

The object of a criminal offence is that against which the criminal offence is directed, generally the most valuable social relations. The chapters of the Special Part of the Criminal Code are named according to the object. For example, Chapter 1 of the Criminal Code is entitled “Criminal Offences against the Person”, Chapter 2 — “Criminal Offences against the Family and Minors”, Chapter 3 — “Criminal Offences against the Constitutional and Other Rights and Freedoms of the Individual and Citizen”, etc.

The objective aspect of the elements of a criminal offence is the external manifestation of the criminal offence in the surrounding reality, namely the act itself (or omission) and its consequences, the time, place, method, circumstances, instruments and means of committing the crime. These are set out in the disposition of the provision of the relevant article of the Special Part of the Criminal Code (for example, theft, that is, the secret misappropriation of another person's property — Part 1 of Article 188 of the Criminal Code) and may also be provided for in the provisions of articles of the General Part of the Criminal Code. An example of this is Article 54 of the General Part, which concerns circumstances aggravating criminal liability and punishment. These include the commission of a criminal offence using weapons, ammunition, explosives, explosive or imitation devices, specially manufactured technical means, flammable and combustible liquids, toxic and radioactive substances, medicinal and other chemical-pharmacological preparations, as well as through the use of physical or psychological coercion or by a generally dangerous method (Paragraph 10) of Part 1 of Article 54 of the Criminal Code).

The subject of a criminal offence, that is, its perpetrator or accomplice, is a person possessing the following characteristics: they must be legally sane (an insane person is not a subject of a criminal offence), must be a natural person only (legal entities are not subject to criminal liability), and must have attained the relevant age prescribed by the Criminal Code.

As a general rule, persons who have attained the age of sixteen by the time of committing a crime are subject to criminal liability for criminal offences (Part 1 of Article 15 of the Criminal Code); under thirty articles of the Criminal Code, criminal liability arises from the age of fourteen (Part 2 of Article 15 of the Criminal Code). Finally, for certain criminal offences, persons who have attained the age of majority by the time of committing the crime, that is, eighteen years of age, are subject to criminal liability (for example, officials of bodies conducting criminal proceedings who commit criminal offences against justice, subjects of military criminal offences, subjects of corruption-related and other criminal offences against the interests of public service and public administration, etc.).

Establishing a minimum age below which children are considered incapable of violating criminal legislation is a requirement of Subparagraph (a) of Paragraph 3 of Article 40 of the UN Convention on the Rights of the Child (Resolution 44/25 of 20 November 1989).

The use of a modern approach consists in determining a child's ability to withstand the moral and psychological aspects associated with criminal liability, that is, determining whether the child can be held responsible for clearly antisocial behaviour in light of the individual characteristics of their perception and understanding. If the minimum age of criminal liability is set too low or is not established at all, the concept of responsibility becomes meaningless, as stated in the Commentary to Subparagraph 4.1 of Paragraph 4 of the UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) (adopted by UN General Assembly Resolution 40/33 of 29 November 1985) (see: International Human Rights Instruments: Collection of Documents. 2nd edition, supplemented. — Moscow: Norma, 2002, p. 297).

The subjective aspect of the elements of a criminal offence is the person's psychological, internal attitude towards the criminal offence committed and its consequences (intent, negligence, motive (impulse), purpose (aspiration)). The forms of guilt, motive and purpose are set out in the dispositions of the provisions of articles of the Special Part of the Criminal Code. For example, causing death by negligence (Article 104 of the Criminal Code), intentional infliction of grievous bodily harm (Article 106 of the Criminal Code). However, they may also be regulated by the provisions of articles of the General Part of the Criminal Code. For example, committing a criminal offence as a result of a combination of difficult personal, family or other circumstances or for reasons of compassion (Paragraph 7) of Part 1 of Article 53 of the Criminal Code).

An act of amnesty (Paragraph 3) of Part 1 of Article 35 of the CPC) is issued by the Parliament of the country in the form of a law in respect of an individually undefined group of persons. On the basis of an act of amnesty, persons who have committed criminal offences may be released from criminal liability and punishment. On the basis of an act of amnesty, persons who have committed a criminal misdemeanour or a crime of minor or medium gravity may be released from criminal liability. Persons convicted of a criminal misdemeanour or a crime of minor or medium gravity may be released from punishment, or the punishment imposed on them may be reduced or replaced with a more lenient type of punishment, or such persons may be released from an additional type of punishment. The term of punishment imposed on persons convicted of a grave or especially grave crime may be reduced. An act of amnesty may remove the criminal record of persons who have served their sentence or have been released from further service of their sentence. An act of amnesty shall not apply to persons who have committed terrorist crimes, extremist crimes, torture, crimes against the sexual inviolability of minors, except where such a crime was committed by a minor against a minor aged between fourteen and eighteen years, as well as to persons sentenced to punishment in cases of recidivism or dangerous recidivism (Parts 1 and 2 of Article 78 of the Criminal Code).

Bringing a person to criminal liability loses all meaning, becomes inexpedient and fails to produce the necessary preventive effect after a lengthy period has elapsed since the commission of the act. This directly depends on the category of the criminal offence committed. In this regard, the bodies conducting criminal proceedings must be guided by the provisions of Article 71 of the Criminal Code, which regulates release from criminal liability due to the expiry of the limitation period (explanation to Paragraph 4) of Part 1 of Article 35 of the CPC). A person shall not be brought to criminal liability if the following periods have elapsed since the date of committing the criminal offence: for a criminal misdemeanour — one year; for a crime of minor gravity — two years; for a crime of medium gravity — five years; for a grave crime — fifteen years; for an especially grave crime — twenty years. The issue of applying the limitation period to a person who has committed a crime for which the law provides for the possibility of imposing the death penalty or life imprisonment shall be decided by the court. If the court does not consider it possible to release the person from criminal liability due to the expiry of the limitation period, the death penalty shall be replaced by life imprisonment, and life imprisonment shall be replaced by imprisonment for a term of twenty-five years. Limitation periods shall not apply to persons who have committed crimes against peace and security of humanity, corruption crimes, terrorist crimes, extremist crimes, torture, crimes against the sexual inviolability of minors, as well as especially grave crimes against the person, the foundations of the constitutional order and state security, public security and public order, and in the sphere of economic activity.

The procedure for handling cases of private and private-public prosecution and accusation, as well as bringing persons to criminal liability on the basis of an application by a commercial or other organisation, was examined by us above when commenting on the provisions of Articles 32—33 of the CPC. If there are no other grounds (Part 4 of Article 32 of the CPC) and, at the same time, there is no complaint by the victim, the private prosecutor has withdrawn the charge in court, or the head of a commercial organisation, etc., has withdrawn the application to bring a person to criminal liability, further proceedings in the case are consequently excluded, and the case shall be terminated (Paragraph 5) of Part 1 of Article 35 of the CPC).

Paragraph 6) of Part 1 of Article 35 of the CPC regulates two independent grounds for terminating a criminal case.

In the first case, it should be taken into account that the criminality and punishability of an act are determined by the law in force at the time the act was committed. Therefore, a new law that eliminates the criminality or punishability of an act, mitigates liability or punishment, or otherwise improves the position of a person who has committed a criminal offence shall have retroactive effect, that is, it shall apply to persons who committed the relevant act before such law entered into force, including persons serving a sentence or having served a sentence but still having a criminal record. Where this circumstance exists, the criminal case shall be terminated unconditionally.

The second case concerns the manifestation of the principle of legality in criminal proceedings (Part 2 of Article 10 of the CPC), according to which courts are not entitled to apply laws and other regulatory legal acts that infringe upon the rights and freedoms of the individual and citizen enshrined in the Constitution of the Republic of Kazakhstan. If a court considers that a law or other regulatory legal act subject to application infringes upon the rights and freedoms of the individual and citizen enshrined in the Constitution of the Republic of Kazakhstan, it shall suspend proceedings in the case and apply to the Constitutional Council of the Republic of Kazakhstan with a submission requesting that the act be declared unconstitutional. Therefore, where the Constitutional Council of the Republic of Kazakhstan declares unconstitutional a law or other regulatory legal act applicable to a specific criminal case, upon which the classification of the act as a criminal offence depends, the case must also be terminated on the ground under consideration.

Paragraphs 7) and 8) of Part 1 of Article 35 of the CPC describe cases of preclusion, that is, as a general rule, the binding and incontestable legal force of previously adopted final judicial procedural decisions on the same charge or final procedural decisions of criminal prosecution bodies establishing the impossibility of criminal prosecution on the same suspicion. It would be unlawful and illogical to conduct proceedings in cases in which the bodies conducting criminal proceedings have already provided a criminal-law and criminal-procedural assessment in accordance with the procedure and on the basis of the provisions of the CPC and adopted the relevant final procedural decisions.

The state of legal insanity (explanation to Paragraph 9) of Part 1 of Article 35 of the CPC), where a person was unable, at the time of committing the act, to understand the actual nature and social danger of their actions (omissions) or to control them due to a chronic mental illness, temporary mental disorder, intellectual disability or another pathological mental condition, also renders criminal liability for that person meaningless (Part 1 of Article 16 of the Criminal Code). If there are grounds for continuing proceedings in such a case, they shall be conducted exclusively for the purpose of the court applying compulsory medical measures to the legally insane person (Part 2 of Article 16 of the Criminal Code, Articles 509—524 of the CPC).

The circumstance provided for in Paragraph 10) of Part 1 of Article 35 of the CPC concerns the criminal prosecution of persons who enjoy immunity in criminal proceedings and hold the positions of Member of Parliament of the Republic of Kazakhstan, Chairperson or member of the Constitutional Council, judge, Prosecutor General of the Republic of Kazakhstan, or persons who are candidates for the office of President of the Republic of Kazakhstan or candidates for membership in Parliament of the Republic of Kazakhstan (Articles 546—556 of the CPC). The legal status of these persons in criminal proceedings is regulated, in addition to the CPC, by constitutional and other laws, to which we have already drawn attention above when commenting on the provisions of Article 1 of the CPC. It is important to bear in mind here that the above-mentioned persons are appointed to their positions or their activities are regulated in accordance with the procedure established by the Constitution of the Republic of Kazakhstan and constitutional laws. In this regard, the granting of consent to bring them to criminal liability, upon applications by the bodies conducting criminal proceedings, depends precisely on the state bodies or persons appointing them to the above-mentioned positions. Consequently, the absence of such consent is equivalent to termination of the criminal case on this ground. The immunity of the above-mentioned persons applies only for the period during which they exercise their constitutional powers or retain the relevant status. Upon expiry of their term of office or the period during which they hold a particular status (candidate for President of the Republic of Kazakhstan, candidate for membership in Parliament of the Republic of Kazakhstan), these persons may be brought to criminal liability and punished on general grounds, provided that the limitation periods have not expired.

The death of the subject of a criminal offence constitutes an independent ground for terminating proceedings in a case (Paragraph 11) of Part 1 of Article 35 of the CPC), except where proceedings in the case are necessary for the rehabilitation of the deceased or the investigation of the case in respect of other persons, as well as for establishing property obtained by unlawful means, monetary funds and other valuables subject to confiscation and intended to ensure compensation for the damage caused (see also Parts 2—3 of Article 499 and Part 1 of Article 667 of the CPC). Thus, two institutions of criminal procedure are relevant to this ground: “Resumption of proceedings in a criminal case due to newly discovered circumstances” (see the commentary to Articles 499—508 of the CPC), and “Proceedings on confiscation prior to the delivery of a judgment” (see the commentary to Articles 667—672 of the CPC).

Section 5 of the Criminal Code regulates issues concerning release from criminal liability and punishment, including release in connection with active repentance (Article 65), in cases of exceeding the limits of necessary defence (Article 66), upon fulfilment of the conditions of a procedural agreement (Article 67), in connection with reconciliation with the victim or applicant (Article 68), in connection with the establishment of a surety (Article 69), in connection with a change in circumstances (Article 70), etc. In all the cases listed, the body conducting criminal proceedings, subject to compliance with the cumulative criminal-law and criminal-procedural conditions and grounds specified in the dispositions of the provisions of these articles, as well as in Articles 35—36 of the CPC, shall have the right to release a person from criminal liability (see the explanation to Paragraph 12) of Part 1 of Article 35 of the CPC). None of the above-mentioned grounds for terminating proceedings in a criminal case exonerates the person from having committed a criminal offence.

At the pre-trial stages, the CPC permits termination of a criminal case where the event of a crime has not been proven and where the person's involvement in committing a criminal offence has not been proven, respectively, under Paragraphs 1) and 2) of Part 1 of Article 35 of the CPC (Part 2 of Article 35 of the CPC). However, the CPC does not provide for the absence of proof of the event of a crime and the absence of proof of a person's involvement in committing a crime as independent grounds for terminating a criminal case at the stage of the main court hearing (Article 343 of the CPC). At the same time, under the CPC, a court may deliver an acquittal if the event constituting a criminal offence has not been proven, as well as if the defendant's involvement in committing the crime has not been proven. This means that the court recognises the defendant's innocence and entails their full rehabilitation (Paragraphs 1) and 3) of Part 2 and Part 3 of Article 394 of the CPC).

In accordance with the provisions of Part 3 of Article 35 of the CPC, a criminal case may be terminated where facts of causing harm without guilt (Article 23 of the Criminal Code), necessary defence (Article 32 of the Criminal Code), causing harm during the apprehension of a person who has committed an encroachment (Article 33 of the Criminal Code), extreme necessity (Article 34 of the Criminal Code), the conduct of operational-search or counterintelligence activities or covert investigative actions (Article 35 of the Criminal Code), justified risk (Article 36 of the Criminal Code), physical or mental coercion (Article 37 of the Criminal Code), or execution of an order or instruction (Article 38 of the Criminal Code) have been established. In all the cases listed, the absence of the elements of a criminal offence is established and grounds arise for terminating proceedings in the criminal case.

The rules provided for in Part 4 of Article 35 of the CPC are distinguished by their democratic nature and are aimed at strengthening the legality and validity of the termination of a criminal case as a result of an act of amnesty, upon expiry of the limitation period or in respect of a deceased person (Paragraphs 3), 4) and 11) of Part 1 of Article 35 of the CPC). The right to object to the termination of a criminal case on these grounds effectively means that the persons specified in Part 4 of Article 35 of the CPC (or their legal representatives) do not acknowledge the guilt of the subject in committing the criminal offence and wish to prove this during the judicial investigation. In this case, the pre-trial investigation in the case shall continue in the ordinary manner, and upon its submission to the court, where grounds exist, it shall be completed by the delivery of a guilty verdict releasing the convicted person from criminal liability or punishment (Article 393 of the CPC).

The specific nature of the grounds for terminating proceedings in a criminal case specified in Paragraphs 3)—4) and 9)—11) of Part 1 of Article 35 of the CPC, the occurrence of which does not depend on the will of the parties, excludes the need to obtain the consent of the victim or their representative for the criminal prosecution body to adopt such a decision.

During pre-trial investigation and judicial proceedings, in addition to the circumstances subject to proof provided for in Article 113 of the CPC, the age of a minor (date, month and year of birth) must also be established in cases involving minors (Paragraph 1) of Article 531 of the CPC). The importance of this is demonstrated by the circumstance provided for in Part 5 of Article 35 of the CPC, which constitutes an independent ground for terminating proceedings in a criminal case and represents the absence of the elements of a crime due to the absence of a proper subject. The age at which criminal liability arises for criminal offences is established by the Criminal Code (Article 15 of the Criminal Code; see also the commentary to Paragraph 2) of Part 1 of Article 35 of the CPC) and is generally confirmed by documents identifying the person. The CPC requires that documents identifying the accused be attached to the materials of the criminal case in all instances: a passport of a citizen of the Republic of Kazakhstan, an identity card of a citizen of the Republic of Kazakhstan, a residence permit of a foreigner in the Republic of Kazakhstan, a certificate of a stateless person, a diplomatic passport of the Republic of Kazakhstan, a service passport of the Republic of Kazakhstan, a refugee certificate, a seafarer's identity document, a foreign passport, a driver's licence, a return certificate, a military ID, a birth certificate (for a person who has not attained the age for obtaining an identity card), and a birth registration record (Part 3 of Article 300 of the CPC).

The CPC draws the prosecutor's attention to the termination of a criminal case at any stage of pre-trial proceedings where grounds exist, as well as to the obligation to declare the withdrawal of the public prosecution in court where circumstances precluding criminal prosecution are present (Parts 6—7 of Article 35 of the CPC). Moreover, the prosecutor's withdrawal of a criminal case from the court during preparation of the case for hearing by the court and before the commencement of the main court hearing means that conducting a new pre-trial investigation in respect of that case and resubmitting it to the court is prohibited. The discovery of circumstances precluding criminal prosecution always entails the termination of the criminal case at any stage of criminal proceedings, even when the case is being considered under appellate or cassation procedure (Paragraph 1) of Part 3 of Article 436 and Paragraph 3) of Part 7 of Article 494 of the CPC). Paragraph 1) of Part 3 of Article 436 of the CPC states that a judgment or ruling shall be set aside by the appellate court in any event where the court failed to terminate the criminal case despite the existence of grounds provided for in Article 35 of the CPC, etc.

The provisions of Part 9 of Article 35 of the CPC are closely related to the provisions of Paragraph 2) of Part 1 of Article 35 of the CPC and mean the unconditional application of administrative or disciplinary measures against a person in respect of whom criminal prosecution was conducted if, during the proceedings, it is proven that the significance of their act does not reach the level of the elements of a criminal offence. The decision and materials of the body conducting criminal proceedings concerning the termination of the criminal case in respect of such a person shall be forwarded to the competent authorities (officials) within ten days from the date of its adoption. This makes it possible to ensure the relevance and continuity of the results of the criminal process and is also necessary for the purpose of preventing crimes by a person in respect of whom the case has been terminated.

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan. By Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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