– Gulnar Zhakhanovna, in your opinion, what are the main issues related to the revision of jury acquittals in Kazakhstan?

The main issue with the revision of acquittals delivered by juries is that the majority of them are overturned by the appellate court based on the grounds specified in Article 662 of the Criminal Procedure Code (CPC). However, it appears that, compared to guilty verdicts issued by the same courts under similar violations, acquittals are more frequently overturned by the appellate instance, whereas guilty verdicts tend to be upheld. A review of appellate rulings overturning acquittals shows that courts correctly identify violations committed during the trial that justify unconditional reversal. However, the real issue is why are guilty verdicts not scrutinized with the same level of rigor?

Another problem is that the CPC of Kazakhstan does not provide for the possibility of questioning jurors in appellate court in cases where an appeal or jurors’ own statements indicate that they were pressured by the presiding judge during deliberations. I believe that in such cases, jurors’ statements should not be regarded as a breach of deliberation secrecy, as they concern violations of the law. In some foreign jurisdictions, when reviewing a verdict, it is possible to question jurors about undue pressure or misconduct by the presiding judge without touching on the substance of their discussions, voting, or responses to the questionnaire etc.

– What examples from judicial practice best illustrate this issue?

A striking example is a high-profile criminal case tried with a jury, involving two defendants. Even a superficial analysis of the proceedings reveals numerous serious violations that warranted an unconditional reversal of the guilty verdict. However, the appellate court did not overturn it.

Another example is an acquittal issued by a jury trial for a co-owner and executive director of a company, which was later overturned by the appellate instance of the North Kazakhstan Regional Court. I believe some of the appellate court’s conclusions leading to this decision were erroneous. For instance, the appellate panel ruled that “the presiding judge completely ignored a specific question proposed by the victim’s representative, which was crucial and should have been included in the questionnaire: ‘Has the guilt of the defendants been proven in carrying out illegal and unauthorized works on agricultural lands… within the framework of the current land legislation?’

However, this question contained legal terms—“illegal and unauthorized works” and “current land legislation”—which required jurors to understand what constitutes unauthorized works, which activities are deemed legal, and what is meant by “within the framework of current legislation”. This essentially required specific legal knowledge, making it inappropriate for inclusion. In jury trials, only factual matters should be considered, not legal interpretations. For example, Paragraph 16 of the Normative Ruling of the Supreme Court of Kazakhstan on the practice of handling jury trials in criminal case proceedings explains: “According to Part 10 of Article 656 of the CPC, questions requiring jurors to legally qualify an act cannot be posed separately or as part of other questions”. There are numerous other similar examples.

– What are the specific features of appellate proceedings in such cases?

One key feature is that, according to the law, certain circumstances that typically serve as grounds for overturning a verdict cannot be appealed in jury trials. These include:

• One-sided or incomplete judicial investigation
• Discrepancies between the court’s conclusions in the verdict or ruling and the actual case circumstances
• The credibility and relevance of evidence, as well as unproven guilt

Additionally, the jury’s verdict itself, i.e. their responses to the questions presented to them, cannot be appealed.

– As a scientist, you conduct extensive analytical work. Based on your observations, what are the typical grounds for overturning a jury verdict in Kazakhstan?

The most common grounds for overturning a verdict rendered by a court with the participation of jurors, which could have influenced the verdict, include:

Firstly, violations committed during the selection of juror candidates, i.e., in the formation of the jury panel, such as:

• Inclusion of a candidate in the jury panel who does not meet the requirements of Article 10 of the Law of the Republic of Kazakhstan “On Jurors”;
• Violation of the random selection process for juror candidates;
• A juror candidate providing false answers or concealing information during questioning by the presiding judge and parties;
• Inclusion in the jury panel of a candidate who had been removed;
• Unjustified denial (deprivation of the right) by the presiding judge of a party’s motion for a reasoned challenge;
• Unjustified denial (deprivation of the right) by the presiding judge of a party’s motion for a peremptory d challenge, etc.

Secondly, the examination of circumstances and issues that should not be discussed in the presence of jurors, i.e., matters beyond their competence, such as:

• Information that could bias jurors against the defendant, victim, or witness;
• Examination of evidence deemed inadmissible under established procedures;
• Consideration of issues related to the admissibility/inadmissibility of evidence;
• Examination of flaws and violations in the pre-trial investigation (use of unlawful investigative methods, including pressure on the suspect, procedural violations, incomplete investigation, falsification of evidence, entrapment, incompetence of investigators, etc.);
• Examination of procedural decisions (rulings on the qualification of the defendant’s actions, rulings of the investigating judge, decisions on preventive measures, reports, jurisdictional matters, consolidation and separation of criminal cases, and other legal matters);
• Issues and motions aimed at ensuring the conditions of the trial (compulsory attendance of victims and witnesses, challenges to participants, etc.).

Thirdly, violations committed in the formulation of the questionnaire, such as:

• Questions containing information about the legal classification of the act and assessments of the defendant’s status and personality (e.g., prior convictions, designation as a particularly dangerous recidivist, official position, etc.);
• Questions containing legal terms and concepts;
• Questions concerning the likelihood of the defendant’s guilt being proven;
• Questions requiring legal assessment;
• Questions containing information about circumstances not examined during the trial with jurors present;
• Questions allowing for a finding of guilt on a charge not formally brought to trial, not presented by the prosecutor, or not upheld in court;
• Questions allowing for a finding of guilt for individuals not brought to trial;
• Questions allowing for a finding of guilt for a more serious offense than the one charged or upheld by the prosecutor or victim;
• In cases of co-perpetration, questions that do not address each defendant individually but rather all together;
• In cases of co-perpetration, questions that preemptively determine the guilt of other defendants.

The fourth group consists of violations committed by the party or parties during the first part of closing arguments:

• Exceeding the scope of the charges brought against the defendant;
• Mentioning circumstances that jurors should not consider in their verdict;
• Disputing the admissibility of evidence examined with the participation of jurors;
• Misrepresenting the content of evidence, its details, or interpretations, as well as distorting the position of the opposing party;
• Challenging the completeness and objectivity of the pre-trial investigation and/or trial;
• Highlighting gaps and one-sidedness in the investigation, or its unlawfulness;
• Providing information about the defendant’s, witnesses’, or victims’ personal characteristics, or the qualifications/professionalism of an expert or specialist;
• Making inappropriate or offensive remarks about the opposing party, pre-trial investigation authorities, or witnesses;
• Discussing legal classification, civil claims, their content, and other matters to be addressed in the second part of closing arguments.

Finally, the fifth group includes violations committed in the jury deliberation room:

• Breach of deliberation secrecy (e.g., leaving the deliberation room before reaching a verdict, presence of unauthorized persons during jury deliberations, etc.);
• A juror failing to answer a question on the questionnaire;
• Absence of vote-counting results for each question on the ballot;
• The questionnaire with answers not being signed by all jurors.

– Can it be said that appellate instances use formal reasons to overturn acquittals?

I wouldn’t say so. The individual appellate rulings I have studied indicate that there were grounds for overturning acquittals. At the same time, an analysis of certain rulings shows that the appellate instance itself makes mistakes when overturning acquittals.

– In your opinion, is it necessary to amend the current criminal legislation of Kazakhstan?

Absolutely, amendments and additions to the Criminal Procedure Code regarding the regulation of trials with jury participation are necessary. It is also essential to introduce additional clarifications in the Normative Ruling of the Supreme Court of Kazakhstan on issues that are not regulated by the Criminal Procedure Code but are systemic in nature and raise many questions among legal practitioners.

– Could there be risks if the list of grounds for overturning acquittals is reduced?

I believe that the list of grounds for overturning acquittals is already quite small and should not be reduced. The real issue lies elsewhere — the widespread violations by the court and the parties of the prohibitions established by the Criminal Procedure Code for this type of trial.

– Are there any initiatives to amend the legislation in this regard?

Last year, one of the draft laws on amendments and additions to the Criminal Procedure Code included provisions introducing changes regarding jury trials. Specifically, it proposed excluding the presiding judge from the deliberation room and allowing the verdict to be decided solely by the jurors. However, this provision was not supported by representatives of state authorities participating in the Working Group.

This material has been funded by UK International Development from the UK government; however, the views expressed do not necessarily reflect the UK government’s official policies. The material has been prepared within the framework of the project “Strengthening Jury Trials by Capacity Building for Judges, Prosecutors, and Lawyers in Kazakhstan” implemented by PF “Legal Policy Research Centre” (LPRC). This project was funded with UK International Development from the UK government.