Comment to article 464. The content of the cassation decision The Criminal Procedure Code of the Republic of Kazakhstan
The cassation ruling consists of an introductory, descriptive, motivational and resolute parts.
The introductory part of the resolution must specify:
1) the time and place of the ruling;
2) the name of the court and the composition of the cassation board that issued the ruling;
3) persons who have filed a cassation complaint or brought a cassation protest;
4) persons who participated in the consideration of the case in the cassation instance.
The descriptive and motivational part of the decision should contain a summary of the arguments of the person who filed the complaint or protested, the objections of other persons who participated in the court in the cassation instance, as well as the reasons for the decision. If the complaint or protest is left without satisfaction, the grounds on which the arguments of the complaint or protest are considered unfounded or insignificant are indicated.
When canceling or changing a sentence, the requirements of which articles of the criminal or criminal procedure law have been violated and what these violations consist of are indicated; the grounds on which the punishment imposed by the court of first instance or the court of appeal is recognized as unfair. In the case of referral of the case to a new trial, it is indicated which violations of the law should be eliminated. At the same time, the decision of the cassation instance may not include statements about the evidence or lack of evidence of the charge, the reliability or unreliability of this or that evidence and the advantages of some evidence over others, the application of a criminal law by the court of first instance or the court of appeal and the measure of punishment.
If a complaint or protest is dismissed due to the lack of new arguments, the descriptive and motivational part of the cassation decision indicates only the absence of grounds provided for in this Code for making changes to the judicial act or its cancellation.
If new arguments are brought in the cassation appeal that were not the subject of consideration in the courts of first and appellate instances, the descriptive and motivational part should indicate the grounds on which the new arguments do not entail the cancellation or amendment of the judicial acts issued in the case or are found to be unfounded.
The operative part of the resolution indicates the decision of the court of cassation on the complaint or protest, indicating the date of its entry into force, as well as the time and procedure for its appeal and appeal by way of supervision.
The decision of the court of cassation, reflecting the result of the activities of the court of revision to verify the legality, validity and fairness of the appealed or protested verdicts, decisions of district and equivalent courts, as well as verdicts and decisions of the appellate instance, are of great importance in correcting judicial errors, ensuring strict observance of legality in the work of local courts., further improving the efficiency of judicial activity.
This obliges the judges of the cassation instance to issue rulings in full, both in content and form, in accordance with the requirements imposed on them by law.
As a procedural document, the cassation decision consists of an introductory, descriptive, motivational and resolute parts.
The introductory part of the resolution must specify: 1) the time and place of the decision; 2) the name of the court and the composition of the cassation board that issued the decision; 3) the persons who filed the cassation complaint or brought the cassation protest; 4) the persons who participated in the consideration of the case in the cassation instance.
4. The descriptive and motivational part of the decision must contain a summary of the arguments of the person who filed the complaint or protested, the objections of other persons who participated in the court in the cassation instance, as well as the reasons for the decision. If the complaint or protest is left without satisfaction, the grounds on which the arguments of the complaint or protest are considered unfounded or insignificant are indicated.
When canceling or changing a sentence, it is mandatory for the court of cassation to indicate the requirements of which articles of the criminal or criminal procedure law have been violated and what these violations consist of; the grounds on which the punishment imposed by the court of first instance or the appellate instance is recognized as unfair.
In the case of referral of the case to a new trial, it is indicated which violations of the law should be eliminated. At the same time, the law explicitly prohibits the court of cassation from prejudging questions about the evidence or lack of evidence of an accusation, the reliability or unreliability of a particular evidence and the advantages of some evidence over others, to specify which criminal law (part, article of the Criminal Code) should be applied by the court of first instance, the appellate instance and what penalty to impose.
If a cassation appeal or protest is dismissed due to the lack of new arguments, the descriptive and motivational part of the cassation decision indicates only the absence of grounds provided for in the CPC for making changes to the judicial act or its cancellation.
If new arguments are brought in the cassation appeal that were not the subject of consideration in the courts of first and appellate instances, the descriptive and motivational part should indicate the grounds on which the new arguments were found to be unfounded.
The operative part of the resolution indicates the decision of the court of cassation on the complaint or protest.
The decision of the cassation instance is final and can be appealed or protested only by way of supervision.
It should be borne in mind that the commented norm does not contain any indication of other issues that arise in practice, for example, disagreement with a civil claim, the amount of procedural costs collected, the fate of material evidence, etc. Guided by the principles of legality, reasonableness and fairness, the court of cassation, if necessary, should include in judicial acts changes are required on these issues as well.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan
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