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May 05, 2017

Returning Criminal Cases to the Prosecutor Under Kazakhstan’s Criminal Procedure Code

On May 5, 2017, the American Bar Association Rule of Law Initiative (ABA ROLI), in cooperation with the Supreme Court of the Republic of Kazakhstan, held a roundtable on the topic of “Returning a Criminal Case to the Prosecutor.” The roundtable was designed to foster dialogue between the judicial system, defense attorneys, general prosecutor’s office and other state authorities to facilitate efforts to identify recommendations for amendments to the Criminal Procedure Code (CPC) that would improve the application of this updated legal mechanism, which was introduced in Article 323 of the new CPC in 2014. 

Prior to 2014, Kazakhstan’s legal system allowed judges to send criminal cases back to prosecutors for additional investigation if the case files contained sufficient information indicating the charges against the defendant ought to be changed, another person ought to be charged for actions related to the case in the same hearing or the charge on the bill of indictment needed to be changed to a heavier or greatly different one. The CPC adopted in 2014 abolished this earlier mechanism of returning a case for additional investigation and introduced a new mechanism that allows the judge to return a criminal case to the prosecutor only if there are substantial violations of criminal procedural law that would prevent the judge from scheduling the full trial.

In his opening speech at the roundtable, Judge Kalidula Shaukhanov, acting chair of the criminal panel of the Supreme Court of the Republic of Kazakhstan said, “Overall, judges interpret and apply Article 323 correctly. Nevertheless, in practice, we still see some mistakes in interpretation of this article when judges return criminal cases to prosecutors when there are no subsistent foundations for that. Currently, we plan (to develop a) draft law amending this article and this platform allows (us to) discuss new concepts and lay (the) basis for further work in this sphere.”

The roundtable gathered judges from all 16 regions of the country in order to gain an understanding of how the provision is used across the country. ABA ROLI also brought in Judge Pavel Goncharov from Tallin District Court in Estonia to provide an international perspective on this issue by presenting on how the mechanism is applied in Estonia.

As in Kazakhstan, a criminal case in Estonia may only be returned to the prosecutor at the stage of a preliminary hearing. The grounds for such return differ though. In Estonia, the only basis for returning a criminal case to the prosecutor is noncompliance of the bill of indictment to the formal requirements of the Criminal Procedure Code of the Republic of Estonia. For example, missing data on procedural costs and absence of indication as to which evidences proves which facts would both count as noncompliance.

Shaukharov added the CPC of Kazakhstan does not stipulate what “substantial violations of criminal procedural law” include. There is currently an interagency taskforce working to amend the legislation by adding an exhaustive list of violations that would allow judges to return a criminal case to the prosecutor. The goal of this roundtable was to discuss suggestions for this list as well as other considerations on this topic in order to include them into the draft law.

As the result of the roundtable, the participants agreed on drafted recommendations that would further develop and refine the mechanism of returning criminal cases to prosecutors in Kazakhstan. The Supreme Court will compile these recommendations and forward them to the appropriate authorities and the task force. The recommendations will lay the groundwork for the future regulatory resolution of the Supreme Court of the Republic of Kazakhstan on this matter, which will set standards for the application of this provision of the law across the country.

Please see the summary of the event (in Russian) here.

This roundtable event was funded with generous support from the American people through U.S. Agency for International Development as part of ABA ROLI’s Kazakhstan Judicial Program.

To learn more about our work in Kazakhstan, please contact the ABA Rule of Law Initiative at [email protected]