THE RETURN OF THE CASSATION PETITION WITHOUT CONSIDERATION AND THE REVISION OF JUDICIAL ACTS THAT HAVE ENTERED INTO LEGAL FORCE (REPUBLIC OF KAZAKHSTAN AND GERMANY)
DOI:
https://doi.org/10.52026/2788-5291_2023_74_3_197Keywords:
petition, return of petition, cassation instance, judicial acts, revision of judicial acts, criminal case, code of criminal procedureAbstract
The authors reviewed the previously valid version of paragraph 6 of the first part of Article 489 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC). In which one of the grounds for the return of the petition, the protest for the revision of the judicial acts that entered into force was the existence of a judge's decision to refuse to transfer the petition with the case for consideration in the cassation instance on the same grounds that were previously considered, except for the cases provided for in part three of article 484. In the current version – the presence of the decision of the judge (judges).
Thus, the old version, which was in effect until July 1, 2022, provided that the decision on refusal was made by one judge, and not by three judges (as provided after July 1, 2022).
According to the earlier version of article 490 of the CPC, the petition for the revision of judicial acts that have entered into force was previously studied by the judge-rapporteur, who, within no more than ten days, in the absence of grounds for his return without consideration, filed a criminal case.
In the current version of Article 490 of the CPC, part one fixes the provision that the petition for the revision of the judicial act is studied by the judge of the cassation instance, who resolves the following issues within a period of no more than ten days: 1) on the presence or absence of grounds for returning the petition on the grounds provided for in part one of Article 489 of the CPC; 2) on the presence or absence of grounds for requesting a court case; 3) on the date of preliminary consideration of the petition with the summons of the parties.
The authors compares the current version of the article with the old one, which was in force until January 1, 2016, when the materials of the criminal case were required to be destroyed, if there were no grounds for returning the petition without consideration. In this norm, it is possible to see a violation of the impartiality of judicial bodies, since the court of cassation instance, when deciding, does not demand the materials of the criminal case, without giving its own assessment and without examining the actual circumstances of the case in violation.