NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of April 20, 2018 No. 4

About the adjudication

The adjudication - the most important act of application of the right which sums up the result of all prior criminal proceeding.

For the purpose of enhancement of court practice, elimination of the available shortcomings and improvement of quality of sentences the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations.

1. According to the law the sentence is the decision on criminal case passed on behalf of the Republic of Kazakhstan in judicial session by Trial and Appeal Court concerning guilt or innocence of the defendant and about application or non-use to it criminal penalty with respect for the principles of justice specified in Item 3 of article 77 of the Constitution of the Republic of Kazakhstan (further - the Constitution) and in Chapter 2 of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure).

In case of decision making, provided by Items 4), 5) of part one of article 431 Code of Criminal Procedure, the appellate instance issues the decree on cancellation of sentence (resolution) of Trial Court and then with observance of requirements of Chapter 46 of the Code of Criminal Procedure the new sentence is decided.

The sentence is obligatory for one and all state bodies, local government bodies, legal entities, officials, citizens and is subject to strict execution.

The resolution of sentence on behalf of the state, its importance demand from judges of understanding of the separate liability for its legality and justification.

2. Courts should mean that the sentence is legal if it is decided by legal structure of court with observance of rules of cognizance, in strict accordance with requirements of the criminal procedure law on the procedure of legal proceedings on the basis of the principle of competitiveness and equality of participants with ensuring their access to research of proofs on an equal basis, on condition of the correct application of rules of law.

Justification of sentence means that it is based on proofs which are collected with observance of requirements of the law and is direct in judicial session full, objectively and are comprehensively researched, their analysis is provided and proper assessment is given, and conclusions of court are motivated.

3. Draw the attention of courts to importance of respect for the procedural rules regulating requirements to sentence form and content that promotes complete disclosure of contents of the decisions made by court. It shall correspond both in form, and on content to requirements of Articles 395, of 396, of 397, of 398, of 399, of 400, of 401 Code of Criminal Procedure.

In case of creation of sentence it is necessary to be guided by the internal documents of judicial system regulating questions of legal method and parameters of creation of court resolutions.

4. The sentence is stated in legal proceedings language, in clear, clear expressions, without excessive repetitions of phrases, identical in sense, and bulky offers. The sentence is stated consistently each new provision followed from previous and was logically connected with it. The description of the events which are not relating to case in point, the use of the inexact formulations, unaccepted reducings, words and expressions unacceptable in official documents is inadmissible. Testimonies of participants of process are provided from the third party and shall contain statement only of those data which concern case in point. At the same time it is necessary to reflect number of the file, time of interrogation of the specified person in case of fixation of judicial session by means audio-, videos.

Corrections according to part five of article 395 Code of Criminal Procedure can be made to sentence only in the consultative room, are stipulated and certified by the signature of the judge on the corresponding page of sentence. Introduction of any corrections after its declaration is not allowed. All issues are resolved and stated in sentence so that there were no difficulties in case of its execution. The complete text of sentence is subject to production in the consultative room, is signed by the judge and after that is announced in the same judicial session in which case trial ended. The copy of sentence shall be handed condemned or justified, to the defender and the prosecutor within five days, and in case of large volume - no later than fifteen days after its declaration. The copy of sentence is handed to other participants of process in the same time from the moment of receipt of the petition.

After declaration of sentence the chairman explains being of the made decision about what the mark in the protocol of judicial session becomes.

In the same judicial session the chairman shall explain the term and procedure for appeal of sentence, its execution, effect of non-execution of sentence and other questions, the stipulated in Article 402 Codes of Criminal Procedure.

Announcement of the oral conclusions which are not given the written form established by the law and not signed by the judge the adjudication is not.

5. Explain to courts that on each case in one legal proceedings irrespective of the number of defendants only one sentence is pronounced. If charge in making of several criminal offenses, court, in the presence to that the bases is brought to the defendant, decides sentence, it on with which one episodes of accusation justifies, and on others condemns him.

When considering the case the court in one sentence, depending on the circumstances established during court investigation, can make the decision on justification of one and on recognition by guilty persons of others on several persons.

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