LAW OF THE REPUBLIC OF KAZAKHSTAN

of February 17, 2012 No. 565-IV ZRK

About modification and amendments in some legal acts of the Republic of Kazakhstan concerning enhancement of appeal, cassation and supervising procedure for hearing of cases, increase in level of credibility and ensuring availability to justice

Article 1. Make changes and additions to the following legal acts of the Republic of Kazakhstan:

1. In the Code of penal procedure of the Republic of Kazakhstan of December 13, 1997 (The sheet of Parliament of the Republic of Kazakhstan, 1997, No. 23, Art. 335; 1998, No. 23, Art. 416; 2000, No. 3-4, of Art. 66; No. 6, Art. 141; 2001, No. 8, Art. 53; No. 15-16, of Art. 239; No. 17-18, of Art. 245; No. 21-22, of Art. 281; 2002, No. 4, Art. 32, 33; No. 17, Art. 155; No. 23-24, of Art. 192; 2003, No. 18, Art. 142; 2004, No. 5, Art. 22; No. 23, Art. 139; No. 24, Art. 153, 154, 156; 2005, No. 13, Art. 53; No. 21-22, of Art. 87; No. 24, Art. 123; 2006, No. 2, Art. 19; No. 5-6, of Art. 31; No. 12, Art. 72; 2007, No. 1, Art. 2; No. 5-6, of Art. 40; No. 10, Art. 69; No. 13, Art. 99; 2008, No. 12, Art. 48; № 15-16, of the Art. 62, 63; No. 23, Art. 114; 2009, No. 6-7, of Art. 32; No. 15-16, of the Art. 71, 73; No. 17, Art. 81, 83; No. 23, Art. 113, 115; No. 24, Art. 121, 122, 125, 127, 128, 130; 2010, No. 1-2, of Art. 4; No. 11, Art. 59; No. 17-18, of Art. 111; No. 20-21, of Art. 119; No. 22, Art. 130; No. 24, Art. 149; 2011, No. 1, Art. 9; No. 2, Art. 19, 28; The Law of the Republic of Kazakhstan of November 9, 2011 "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning enhancement of law-enforcement activities and further humanization of the penal legislation", published in the newspapers "Egemen .aza.stan" on November 16, 2011 and "The Kazakhstan truth" 15, on November 16 and 19, 2011; The law of the Republic of Kazakhstan of November 29, 2011 "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning counteraction of organized crime, terrorist and extremist activities", published in the Egemen .aza.stan and Kazakhstan Truth newspapers on December 3, 2011; The Law of the Republic of Kazakhstan of January 6, 2012 "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning space activities", published in the Egemen .aza.stan and Kazakhstan Truth newspapers on January 18, 2012):

1) in table of contents:

to state heading of Section 8 in the following edition:

"Section 8. Review of sentences and court orders in appeal and cassation procedure";

to state heading of Article 420 in the following edition:

"Article 420. Cancellation of sentence with participation of jury members with the direction on new legal proceedings";

to state headings of Articles 422 and 423 in the following edition:

"Article 422. Content of appeal sentence, resolution";

"Article 423. Removal of appeal sentence, the resolution and their introduction in legal force";

to state heading of Article 423-3 in the following edition:

"Article 423-3. Consideration of the case on the first instance after cancellation of the initial sentence decided with participation of jury members";

to state heading of Article 446-1 in the following edition:

"Article 446-1. General terms of appeal of sentences, court orders in cassation procedure";

to state heading of Article 446-9 in the following edition:

"Article 446-9. The bases to cancellation or change of sentence, the resolution by cassation instance";

to state heading of Article 446-15 in the following edition:

"Article 446-15. Cancellation of sentence with the direction of case on new trial";

to state heading of Article 446-22 in the following edition:

"Article 446-22. Consideration of the case in the first, appellate instance after cancellation of sentence";

to state heading of Chapter 50 in the following edition:

"Chapter 50. Review of court resolutions according to the procedure of judicial supervision by the Supreme Court of the Republic of Kazakhstan";

headings of Articles 458 – 461 to state in the following edition:

"Article 458. Court resolutions which can be reviewed according to the procedure of judicial supervision after the introduction in legal force";

"Article 459. The bases to review according to the procedure of judicial supervision

the adjudications and resolutions which took legal effect";

"Article 460. Persons having the right to petition for review according to the procedure of judicial supervision of the sentences which took legal effect and resolutions of courts, to protest the sentences and resolutions of courts which took legal effect";

"Article 461. Appeal terms according to the procedure of judicial supervision of the judgments which took legal effect";

to state heading of Chapter 61 in the following edition:

"Chapter 61. Features of production on review of the sentences which did not take legal effect, resolutions on the cases considered with participation of jury members";

to state heading of Article 575 in the following edition:

"Article 575. Features of production in appellate instance of the cases considered by court with participation of jury members";

to state heading of Chapter 62 in the following edition:

"Chapter 62. Features of production on review of the sentences which took legal effect, resolutions on the cases considered with participation of jury members";

add with heading of Article 575-1 of the following content:

"Article 575-1. Review of the sentences and court orders which took legal effect with participation of jury members in court of cassation instance"

to state headings of Articles 576 and 577 in the following edition:

"Article 576. Review of the sentences and court orders which took legal effect with participation of jury members";

"Article 577. Inadmissibility of deterioration of the situation of the convict in case of review of the sentence which took legal effect, court orders with participation of jury members";

2) in Article 7:

3) to state Item in the following edition:

"3) "appellate instance" – the court considering the merits of the case on petitions for appeal (protests) on the sentences which did not take legal effect, court orders of the first instance;";

Items 4-1), 5), 6) to state in the following edition:

"4-1)" cassation instance" – the court considering case on writs of appeal (protests) on the sentences which took legal effect, the court order of the first and appellate instance;

5) "supervising instance" – the board of the Supreme Court of the Republic of Kazakhstan considering according to the procedure of supervision case on the petition, protest on the judgments which took legal effect, and also the plenary session of the Supreme Court of the Republic of Kazakhstan considering representation of the Chairman of the Supreme Court or protest of the Attorney-General;

6) "judge" – the carrier of judicial authority; the professional judge appointed or elected to this position in the procedure (the chairman of justices, the chairman of judicial board, the judge of the relevant court) established by the law;";

34) to state Item in the following edition:

"34) "sentence" – the judgment passed by court of the first, appellate instance on guilt or innocence of the person accused and application or non-use of punishment to it;";

Part the tenth Article 23 to state 3) in the following edition:

"10. The court provides to the parties the right in consideration of the case on the first and appellate instance; the person accused and his defender are allowed when considering the case in cassation and supervising procedure on newly discovered facts. The party of accusation shall be provided by the state or private prosecutor by consideration of each criminal case by court. Other cases when the parties be involved in consideration of the case by court, are determined by this Code.";

4) the offer second of part four of Article 43 to state in the following edition:

"If the case is dismissed by court by its consideration in appeal, cassation or supervising procedure, the specified actions are made by the court which considered case on the first instance.";

Article 58 to state 5) in the following edition:

"Article 58. Structure of court

1. Consideration of criminal cases in Trial Courts is performed solely by the judge, and on cases on especially serious crimes on the petition of the person accused – as a part of one judge and ten jury members, except for cases on the crimes provided by Articles 162 (parts two and third), 163 (part two), 165, 166, 166-1, 167, 168 (part one), 169, 171, 233 (parts three and the fourth), 233-2 (parts one and third), 233-4 (part two), 234 (part three), 238 (part three), 239 (part three) of the Criminal Code of Kazakhstan.

2. Consideration of criminal cases in appeal procedure is performed by the judge solely, and by consideration of claims, protests on sentences, court orders with participation of jury members – is joint as a part of at least three judges.

3. Hearing of cases in cassation instance is performed jointly as a part of at least three judges under the chairmanship of the chairman of the regional and equated to it court.

4. Hearing of cases in the Supreme Court of the Republic of Kazakhstan is performed jointly as a part of at least three judges.

5. The structure of court by hearing of cases is determined by newly discovered facts according to rules, stipulated in Article the 476th of this Code.

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