Comment to article 210. General rules of interrogation The Criminal Procedure Code of the Republic of Kazakhstan

Before the interrogation, the person conducting the pre-trial investigation must verify the identity of the interrogated person. If there are doubts about whether the interrogated person speaks the language in which the proceedings are conducted, it is clarified in which language he wishes to testify. If necessary, it is provided free of charge by an interpreter.

The person called in for questioning is informed in whose capacity and in which criminal case he will be questioned, the rights and obligations provided for in this Code are explained, and a note is made in the protocol.

Persons summoned in the same case are interrogated separately from other interrogated persons. The person conducting the pre-trial investigation takes measures to ensure that the interrogated persons, summoned in the same case, could not communicate with each other before the start of the interrogation.

The interrogation begins with a suggestion to tell about the circumstances of the case known to the interrogated person. If the interviewee talks about circumstances that are clearly not relevant, he should be informed of this.

At the end of the free story, the interrogated person may be asked questions aimed at clarifying and supplementing the testimony. It is forbidden to ask leading questions.

If the testimony is related to digital data or other information that is difficult to retain in memory, the interrogated person has the right to use documents and records that, at the request or with the consent of the interrogated person, can be attached to the protocol.

If during the interrogation material evidence and documents were presented to the interrogated person, protocols of other investigative actions were announced and materials of sound and (or) video recordings, filming of investigative actions were reproduced, then the corresponding record about it is made in the protocol of interrogation. At the same time, the protocol reflects the testimony of the interrogated person, given by him according to the presented evidence, announced protocols, reproduced sound and (or) video recordings, and filming of investigative actions.

The interrogation of a mute or deaf witness, victim, suspect, or accused is carried out with the participation of a person with sign language skills. The participation of this person in the interrogation is reflected in the protocol.

If the interrogated person has a mental or other serious illness, his interrogation is carried out with the permission of the doctor and in his presence.

By the decision of the person conducting the pre-trial investigation, as well as at the request of the suspect, accused, witness or victim, audio and video recordings may be used during interrogation. The interrogated person is notified about the use of sound and video recordings before the start of the interrogation.

Audio and video recordings should reflect the entire course of the interrogation and contain the complete testimony of the interrogated persons. Audio and video recordings of a part of the interrogation, as well as the repetition of testimony given during the same interrogation specifically for recording, are not allowed.

At the end of the interrogation, audio and video recordings are fully reproduced to the interrogated person. Additions to the audio and video recordings of the testimony made by the interrogated are also recorded on the phonogram and videogram. The audio and video recordings end with a statement from the interrogated person confirming their correctness.

The testimony obtained during the interrogation using sound and video recordings is recorded in the interrogation protocol. The interrogation protocol must also contain: a note on the use of sound and video recordings and notification of the interrogated; information on scientific and technical means, conditions of sound and video recordings and the facts of their suspension, the reason and duration of the stop; a statement by the interrogated about the use of sound and video recordings; a note on the reproduction of sound and video recordings to the interrogated; verifying the correctness of the protocol and audio and video recordings by the interrogated person and the person conducting the pre-trial investigation. The phonogram and videogram are kept during the case and sealed at the end of the pre-trial investigation.

The essence of the interrogation lies in the fact that the person conducting the pre-trial investigation in accordance with the procedure established by the commented article receives from the interrogated person and records in the interrogation protocol his testimony about the circumstances of the facts relevant to the criminal case.

Interrogation, being one of the types of investigative actions, aims to establish whether or not there are circumstances to be proved in a criminal case; to verify the reliability of evidence collected in the case; to establish other sources from which information about the circumstances of the case under investigation can be obtained.

Before the start of the interrogation, the person conducting the investigation confirms the identity of the interrogated person, for which he/she is required to provide an identity document, which may be one of the documents specified in Part 3 of Article 300 of the CPC. Information about the submitted document (type of document, its series and number, when and by whom it was issued) must be recorded in the interrogation protocol. After that, his personal data is clarified, provided for in Part 2 of art. 212 CPC - last name, first name, patronymic (if any), day, month, year and place of birth, citizenship, nationality, education, marital status, family composition, place of work, occupation or position, place of residence, as well as other information. The latter may include information about the circumstances related to the statement of the person summoned for questioning about the application of state protection and security measures provided for in Part 1 of Article 97 of the CPC.; about the registration of the place of residence and the place of actual residence, the phone number at the place of work and residence, the attitude to military duty and the place of military registration, etc. The suspect's criminal record must be clarified, if the suspect was convicted, when and by which court he was convicted, under which article of the Criminal Code of the Republic of Kazakhstan, the type and amount of punishment, when he was released, as well as other circumstances specified in Article 79 of the Criminal Code.

To determine the language spoken by the summoned person, his nationality is clarified, as well as which language is his native language. In case of non-mastery or insufficient mastery of the language in which the investigation is conducted, the person conducting the interrogation must ensure the participation of an interpreter. The relationship of the interrogated person (related, friendly, hostile, etc.) with other participants in the interrogation is also clarified.

After clarifying the issues specified in the first part of the commented article, the person is explained his procedural status, in which criminal case he was summoned, and the procedure for conducting the interrogation. If a person has witness immunity (Article 28 of the CPC), his right to refuse to testify must be explained to him. If a person refuses to exercise such a right, he (with the exception of the suspect) must be informed of his obligation to give truthful testimony, and he must also be warned of criminal liability for knowingly giving false testimony. The fact of the explanation is indicated in the protocol of the interrogation, which must be certified by the signature of the person called for questioning.

In order to exclude communication between persons who have already been interrogated and those who have not been interrogated, the possibility of exerting pressure on interested parties in the outcome of the case and other circumstances that may affect the testimony of the person called for questioning, the person conducting the investigation must take measures to ensure that the already interviewed persons are not able to communicate with each other. If there are sufficient grounds to believe that the persons to be called for questioning are likely to communicate, it is advisable for the person conducting the investigation to warn them about the inadmissibility of disclosing information they know about the case without his permission, and a subscription with a warning of responsibility is withdrawn from these persons (Part 2, art. 201 of the CPC).

In addition to the person being interrogated, other persons may (and in cases provided for by law, must) participate in the interrogation: a defense lawyer (in the case of questioning a suspect, his participation is mandatory, a witness who has the right to defend himself), a representative (in the case of questioning a victim), legal representatives (of the suspect, victim, witness), specialist, translator. Before the start of the interrogation, the person conducting the pre-trial investigation must verify their authority. The specified participants have the right, with the permission of the person conducting the interrogation, to ask questions to the interrogated person, to bring comments and objections to be recorded in the interrogation protocol.

After performing the actions specified in part two of the commented article, the person conducting the pre-trial investigation proceeds directly to the procedure for obtaining testimony. The interrogation must be conducted in compliance with the requirements and sequence established by the commented article, as well as the norms of the Criminal Procedure Code defining the general conditions of the pre-trial investigation. Thus, forcing an interrogated person to give evidence, as well as preventing a person from voluntarily giving evidence, or forcing a person to refuse to give evidence by using threats, blackmail or other illegal actions on the part of a person conducting a pre-trial investigation, entails criminal liability in accordance with art. 415 of the Criminal Code; a person who does not speak or does not speak enough language, his right to use the services of an interpreter free of charge must be ensured (Part 3 of Article 30 of the CPC); the right of everyone to receive qualified legal assistance during criminal proceedings (art. 27 of the CPC) implies ensuring the right of a person summoned for questioning to testify in the presence or with the participation of a lawyer (paragraph 6 of Part 9 of Article 68, paragraph 6 of Part 6 of Article 71, part 3 of Article 78 of the CPC), etc.

Interrogation is a procedure regulated by the rules of the Criminal Procedure Code for obtaining testimony from an interrogated person about facts of evidentiary importance in a case. An interrogation may be conducted to clarify any circumstances that need to be proven in a criminal case (Article 113 of the CPC).

Before starting the interrogation, the investigator should invite the witness and the victim to truthfully report the circumstances of the case about which they were called for questioning, and the suspect should give evidence about the circumstances that served as the basis for recognizing him as a suspect or constitute the content of the qualification of his act. The interrogated person should be asked to give evidence about the circumstances of the case in the form of a free narrative and in the sequence that seems convenient to him. This form of testimony allows the interrogated person to focus better, to explain in more detail and fully, from his point of view, the circumstances about which he is being interrogated, which, of course, ensures his right to protection. At this stage of the interrogation, it is not recommended to interfere in the narrative process (ask questions, clarify, etc.), except when the interrogated deviates from the subject of the interrogation, testifies about circumstances that are clearly irrelevant to the case. In this case, the investigator must interrupt his testimony and indicate exactly what circumstances it is necessary to testify about.

The requirements of the law that questions can be asked to the interrogated person after the end of a free story means that it is not allowed to interrupt it. The opportunity to ask questions at the end of a free story depends on the completeness, nature, objectivity and reliability of the information that was given by the interrogated person during his free story. At the same time, questions can be of a very different nature - clarifying and complementary, the varieties of which can be verification (control), reminding, specifying, as well as aimed at exposing a person in giving false testimony.

The interrogated person's questions should be put taking into account his educational and cultural level in precise, understandable and unambiguous terms that do not allow ambiguity. In order to avoid receiving false, biased or distorted information, the law prohibits asking leading questions. These include their wording, which contains a hint of the desired answer or the answer itself. Therefore, the question should be formulated in such a way that the interrogated person could not extract any clues or new information about the circumstances of the case from it, but should proceed only from what he knows or remembered himself. The prohibition to ask suggestive questions applies not only to the person conducting the interrogation, but also to persons participating in the interrogation (for example, to a defense lawyer, a representative, a participant in a confrontation, etc.). If a leading question was asked by the person participating in the interrogation, the interrogator must take it away and reflect this fact in the interrogation protocol.

It is his right to use documents (in writing or otherwise) and records in cases where the testimony of the interrogated person relates to any data that is difficult to retain in memory. Therefore, the permission of the person conducting the interrogation is not required to exercise this right. At the request of the interrogated person, the person conducting the interrogation has the right to attach documents and records to the interrogation protocol if they are relevant to the case. In order to attach them to the interrogation protocol on the initiative of the person conducting the interrogation, the consent of the interrogated person is required. If such consent is not obtained, then the person conducting the interrogation has the right to make a decision on their seizure and attachment to the case.

The presentation of physical evidence and documents during the interrogation, the announcement of protocols of other investigative actions and the reproduction of audio and (or) video recordings, filming of investigative actions are carried out, as a rule, in order to expose a person in giving false testimony, or to induce the interrogated person to give truthful testimony, or in the case of contradictory testimony. All specified objects must meet the requirements of their relevance, acceptability, and reliability. Such presentation makes it possible to concretize the testimony of persons, or to demonstrate to the interrogated person the unreliability or inconsistency of his testimony. Upon presentation of the specified evidence, the person conducting the interrogation must take measures in advance to ensure their safety from unlawful actions of the interrogated person related to their destruction. Therefore, in order to exclude such cases, it is advisable to present, if possible, copies of the specified evidence. Before presenting evidence, the circumstances related to them must be clarified by the interrogated person, which must be reflected in the interrogation protocol and certified by the signature of the interrogated person. After presenting the specified evidence, the person conducting the interrogation must invite the person to testify or answer questions regarding the evidence presented, which is also recorded in the interrogation protocol.

Prior to the start of the interrogation of a person with physical disabilities related to deafness and dumbness, the person conducting the pre-trial investigation must ensure the participation of a specialist who has sign language skills, i.e. understands his signs and is able to communicate with him in signs.

The interrogation of a suspect or victim who, due to physical disabilities related to their deafness or dumbness, cannot independently exercise their right to defense must be carried out with the mandatory participation of an appropriate defender (paragraph 3, part 1, Article 67 of the CPC), a legal representative and a representative (part 76 of the CPC).

The criterion that these physical disabilities do not allow the suspect or victim to independently exercise their right to protection is the full or partial ability of a person to hear (as a result of deafness) or reproduce what they perceive (as a result of dumbness).

The presence of a mental or other serious illness in the interrogated person must be confirmed by an appropriate medical report. The doctor's permission to question such a person would appear to be in writing. The doctor's instruction to interrupt the interrogation for a break, or to postpone it to another time, or to shorten the duration of the interrogation is mandatory for the person conducting the interrogation.

The use of video and audio recording ensures the completeness and accuracy of recording the testimony obtained, the possibility of verifying it, and subsequently excludes the possibility of the interrogated person's statement about the use of illegal interrogation methods against him. Upon the decision of the person conducting the pre-trial investigation to use sound and video recordings, the interrogated person and the persons participating in the interrogation must be notified before the start of the interrogation, i.e. before the start of clarifying their identity, which must be confirmed by their signatures in the interrogation protocol. The consent of the interrogated person to use the specified additional means of fixation is not required. The request of the interrogated person for the use of video and sound recording should be reflected in the interrogation protocol. Such a request is not mandatory for the investigator - he may refuse it (for example, due to the lack of an audio-video recording device).

Audio and video recording is an additional means of recording the interrogation and is carried out in accordance with the requirements of Articles 126 and 199 of the CPC.

At the beginning of the audio and video recording, the person conducting the interrogation must state his last name, position and title, place and time of the interrogation, indicate the persons participating in the investigative action; notify the participants of the interrogation about the use of scientific and technical means and its technical characteristics, who makes the recording; then the requirements provided for in part h are fulfilled. 1-8 Articles 210 of the Criminal Procedure Code. It is not allowed to repeat testimony given during the same interrogation specifically for recording, as well as recording part of the interrogation. If it is necessary to interrupt the recording, the person conducting the interrogation must record on a video recording device an explanation of the reasons and duration of such interruption, indicating the time of the break and resumption of recording.

At the final stage of the interrogation, the interrogated person must not only be familiar with the interrogation protocol, but the entire recording must be played to him and other persons participating in the interrogation. If, after watching (listening to) the recording, additions, including comments, have been received from the participants in the interrogation, they are also subject to video and audio recording, which must also be played back for viewing (listening). The audio-video interrogation ends with a statement from the interrogated person about the reproduction and correctness of the recording.

The use of sound and video recording does not exclude the preparation of an interrogation protocol. The use of video sound recordings must be indicated in the interrogation protocol, indicating their technical characteristics, conditions and procedure for their use (Part 4 of Article 126, part 5 of Article 199 of the CPC), as well as the type and model of the video sound recorder, the time of fixation on the scientific and technical means, the beginning and end of recording, information about viewing (listening to) audio-video recordings by the participants of the interrogation, comments and petitions made after viewing (listening to) information about the transfer of video-audio material from one medium to another. After viewing (listening to) the video recording medium is packaged, sealed, signed by the person conducting the pre-trial investigation, and stored in the criminal case (paragraphs 6-10 of the Order of the Prosecutor General of the Republic of Kazakhstan dated September 22, 2014 No. 91 "On Approval of the Rules for the Use of scientific and technical means of recording the progress and results of investigative actions"). It seems necessary to indicate the following information on the package: the name of the investigative action - interrogation and the date of its production, whose testimony was recorded, the technical data of the recording medium, the signatures of the person conducting the investigation and the participants in the interrogation. The recording media must be stored in conditions that prevent its damage and substitution.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Source: The PARAGRAPH Information System Document: Commentary to Chapter 26 of the Criminal Procedure Code of the Republic of Kazakhstan "Interrogation and confrontation" (Suleimenova G.Zh. professor, member of the Almaty City Bar Association)

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