Information regarding the regulatory resolution of the Constitutional Court
(№ 21 dated 14 July 2023)
The Constitutional Court has examined citizens' appeals on the constitutionality of paragraph (1) of part two of Article 484 of the Code of Criminal Procedure (hereinafter – the CCP) and paragraph three of paragraph 2 of the Supreme Court's normative decision № 2 of 10 March 2022 ‘On the Application of Legislation Regulating the Examination of Criminal Cases in Cassation’ (hereinafter – the SC ND).
According to the above-mentioned norms, judicial acts in cases involving criminal misdemeanours and offences of minor gravity are not subject to cassation review.
The subjects of the appeal in different periods and facts submitted petitions to the cassation instance of the Supreme Court for review of the sentences of the courts of first and appeal instances that had entered into legal force. The applications were denied with reference to the above-mentioned norms of the CCP and the SC ND.
The Constitutional Court considers that under equal conditions the subjects of law must be in an equal legal position. A different approach to the question of the limits of restriction of human and civil rights and freedoms, which does not pursue constitutional and legal purposes, would be contrary to Article 39 of the Constitution. In criminal proceedings, through which the judicial power is exercised, compliance with the constitutional principle of equality of all before the law and the court is required. The Constitution does not establish certain requirements as to the number of instances in a particular form of judicial proceedings. The Constitutional Council has previously recognised that the right to judicial protection includes the right to appeal against judicial acts. In determining their number, the legislator is required to take into account the constitutional purpose of the judiciary - ‘to protect the rights, freedoms and legitimate interests of citizens and organisations, to ensure the implementation of the Constitution, laws, other normative legal acts and international treaties of the Republic’ (paragraph 1 of Article 76 of the Constitution).
The Constitutional Court recognised paragraph 1) of part two of Article 484 of the CCP and paragraph one-third of paragraph 2 of the SC ND as being in conformity with the Constitution and recommended that the Government initiate the submission to the Mazhilis of the Parliament of a draft law aimed at further improving the CCP in terms of access to cassation instance regardless of the type of criminal offence and category of crimes.