Comment to the article Article 215. The specifics of the interrogation of a minor witness or victim The Criminal Procedure Code of the Republic of Kazakhstan
A teacher and (or) psychologist are called to participate in the interrogation of a witness or victim under the age of fourteen, and at the discretion of the person conducting the pre-trial investigation, and to participate in the interrogation of a witness or victim between the ages of fourteen and eighteen. During the interrogation of a minor witness or victim, his legal representatives may be present.
Witnesses and victims under the age of sixteen are not warned about responsibility for refusing to testify and knowingly giving false testimony. When explaining the procedural rights and obligations to such witnesses and victims, they are reminded of the need to tell only the truth. Underage witnesses and victims are given the right to refuse to give evidence incriminating themselves or close relatives in committing a criminal offense.
The persons present during the interrogation, specified in the first part of this article, are given the right to make observations on violations of the rights and legitimate interests of the interrogated, which must be recorded in the protocol, and also, with the permission of the person conducting the pre-trial investigation, to ask questions to the interrogated. The person conducting the pre-trial investigation has the right to withdraw the issue, but must record it in the protocol and indicate the reason for the withdrawal.
The commented article establishes the specifics of the interrogation of persons under the age of majority. Otherwise, the interrogation of a minor is conducted according to the rules established by art. 210 of the CPC.
The person conducting the pre-trial investigation is obliged to ensure the presence of a teacher and/or psychologist in the case of questioning of a minor witness and victim under the age of fourteen. In the case of an interrogation of a minor (under 7 years of age), the participation of a preschool teacher must be ensured. The participation of these specialists in the process of interrogating minors is conditioned by the need to establish psychological contact with them, based on the peculiarities of the psychology of persons of this age group. In addition to the identity document of the teacher and psychologist, these persons must submit relevant documents confirming not only their special pedagogical or professional education in the relevant fields, but also their work in this specialty.
The participation of a legal representative is conditioned by two circumstances: 1) the incompleteness of the minor's procedural capacity; 2) responsibility for the upbringing and behavior of the minor.
Prior to the start of the interrogation, the person conducting the pre-trial investigation is obliged to explain to the specified specialists and legal representative their rights, duties and the procedure for conducting the interrogation, the inadmissibility of asking leading questions, as well as questions that may harm the psyche of the minor, his upbringing. At the same time, it should be borne in mind that the participation in the interrogation of a teacher from an educational institution where a minor is studying, as well as his legal representative, in some cases may negatively affect the behavior of the interrogated person (for example, hostile relations have developed between him and the teacher during the training process). The interests of a minor and a legal representative may not always coincide, since the latter protects the interests of not only the minor, but also his own, since he is responsible for the upbringing and behavior of his ward. In this regard, it seems that the person conducting the investigation has the right to exclude the legal representative from participation if there are grounds to believe that he is influencing the testimony of the minor, his actions are harmful or may harm the interests of the minor or are aimed at obstructing an objective and comprehensive investigation.
The specifics of the interrogation of minors under the age of sixteen are due to the fact that, given their age, they are not warned about criminal liability for refusing to testify and for knowingly giving false testimony. When explaining their procedural rights, they are reminded of the need to tell the truth. During their interrogation, the individual and personal characteristics of the minor should be taken into account, such as suggestibility, excitability, dependence, a tendency to bravado, leadership, fantasy, and others (paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002 No. 6 "On judicial practice in cases of juvenile delinquency and their involvement in criminal and other antisocial activities").
His legal representative, teacher, psychologist, who is present during the interrogation of a minor, may ask questions with the permission of the official conducting the interrogation. The interrogator is obliged to deflect questions that are suggestive, as well as incorrect questions that may damage the psyche of the minor, his upbringing, and relationships with others.
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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