Commentary on Article 1. Legislation Determining the Procedure for Criminal Proceedings under the Criminal Procedure Code of the Republic of Kazakhstan

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1. The procedure for criminal proceedings in the territory of the Republic of Kazakhstan shall be determined by the Constitution of the Republic of Kazakhstan, constitutional laws, and the Criminal Procedure Code of the Republic of Kazakhstan, which are based on the Constitution of the Republic of Kazakhstan and the universally recognized principles and norms of international law. The provisions of other laws regulating the procedure for criminal proceedings shall be incorporated into this Code.

2. The international treaty and other obligations of the Republic of Kazakhstan, as well as the regulatory resolutions of the Constitutional Council and the Supreme Court of the Republic of Kazakhstan regulating the procedure for criminal proceedings, shall constitute an integral part of criminal procedural law.

3. If, in the course of proceedings in a criminal case, it becomes necessary to consider an issue that must be resolved in accordance with civil or administrative law, such issue shall be resolved in accordance with the procedure established for civil or administrative proceedings.

It is customary for the first article of the Criminal Procedure Code to always be devoted to the legislation determining the procedure for criminal proceedings. In other words, it outlines the range of legal sources of this legislation, which every body and official conducting criminal proceedings must and is obliged to know. This is necessary to ensure the effective protection of human and civil rights and freedoms in what is perhaps the most acute and specific sphere of activity of state bodies, namely combating crime.
Thus, throughout the years that have passed since the proclamation of state independence, the Republic of Kazakhstan (hereinafter referred to as the Republic of Kazakhstan) has consistently and continuously implemented systemic measures aimed at providing legal support for state sovereignty, including the improvement of criminal policy through comprehensive and interconnected amendments to criminal, criminal procedural and penal enforcement law, as well as the improvement of law enforcement practices.
Under the influence of periodic reforms of the Constitution and constitutional legislation, the national judicial system, law enforcement and special state bodies of the country, and civil society institutions, the legislation determining the procedure for criminal proceedings has also continued to develop actively. It is important to note that the improvement of the legal foundations of Kazakhstan's criminal procedure is carried out taking into account the historical experience of legislative and law enforcement activities in the field of criminal justice, and is based on the provisions of the Constitution, as well as the universally recognized principles and norms of international law. Several stages can be identified in its development.
The first stage is the period during which the criminal procedural legislation of the RSFSR was in force in Kazakhstan for several decades (from 1917 until January 1, 1960). At this stage, criminal procedural legislation developed under the direct influence of the criminal procedural legislation of the USSR and the RSFSR (see Decree No. 1 of the Council of People's Commissars of the RSFSR “On the Court” dated November 22, 1917; Decree No. 2 of the All-Russian Central Executive Committee of the Soviets of Workers', Soldiers' and Peasants' Deputies “On the Court” dated February 15, 1918; Decree of the Council of People's Commissars of the RSFSR “On the Court” dated July 20, 1918; the RSFSR Criminal Procedure Code dated May 25, 1922 (Resolution of the All-Russian Central Executive Committee of the Soviets); the RSFSR Criminal Procedure Code dated February 15, 1923 (Resolution of the Presidium of the All-Russian Central Executive Committee of the Soviets); the “Fundamentals of Criminal Judicial Proceedings of the USSR and the Union Republics” dated October 31, 1924 (Resolution of the Presidium of the Central Executive Committee of the USSR); the “Fundamentals of Criminal Judicial Proceedings of the USSR and the Union Republics” dated December 25, 1958 (approved by a law adopted by the Supreme Soviet of the USSR); and other regulatory legal acts).
The second stage covers the period from 1960 to 1991. At this stage, by the Law of the Kazakh SSR dated July 22, 1959, the first Criminal Procedure Code in the history of the state, the Criminal Procedure Code of the Kazakh SSR, was approved and entered into force on January 1, 1960. Although the content of the Code remained unchanged, the legislator of the Kazakh SSR was given the opportunity to independently reform certain of its institutions, rules and provisions. Over these years, amendments and additions were made to the Code by more than 70 laws.
The third stage began after the dissolution of the USSR and the declaration of the country's independence and covers the period from 1991 to 2014.
On December 16, 1991, the Supreme Council of the Republic of Kazakhstan, expressing the will of the people of Kazakhstan, recognizing the priority of individual rights and freedoms enshrined in the Universal Declaration of Human Rights and other universally recognized norms of international law, reaffirming the right of the Kazakh nation to self-determination, proceeding from its determination to establish a civil society and a state governed by the rule of law, pursuing a peaceful foreign policy, and declaring its commitment to the principle of non-proliferation of nuclear weapons and the process of disarmament, solemnly proclaimed the state independence of the Republic of Kazakhstan by adopting the Constitutional Law “On the State Independence of the Republic of Kazakhstan”.
The improvement of criminal procedural legislation became significantly more active and acquired a targeted character, as it was carried out primarily within the framework of the first State Programme of Legal Reform in the Republic of Kazakhstan, approved by Resolution of the President of the Republic of Kazakhstan dated February 12, 1994. The need for its adoption was dictated by a whole range of problems: at the beginning of independence, the legal system of the republic was experiencing a profound crisis, which was aggravated by the significant lag of legal reform behind the development of the market economy, the processes of denationalization and privatization, the establishment of modern parliamentarism and other democratic institutions. In many respects, national law was not aligned with the universally recognized norms and principles of international law. The further development of criminal procedural legislation was driven by the objective needs of investigative, prosecutorial and judicial practice in combating crime, arising from the increased professionalism and organization of criminal activity. During this period, the Constitution of the Republic of Kazakhstan dated January 28, 1993, and the Constitution of the Republic of Kazakhstan dated August 30, 1995, which replaced it, were adopted. They established a new understanding of the protection of human and civil rights and freedoms in the field of criminal procedure, as well as effective forms and methods of criminal proceedings. In addition, approximately 15 laws on various issues of criminal procedure were adopted, together with the new Criminal Procedure Code of the Republic of Kazakhstan dated December 13, 1997 (which entered into force on January 1, 1998), replacing the Criminal Procedure Code of the Kazakh SSR of 1959. From the perspective of the internal structure and content of the institutions, rules and provisions of criminal procedural law, the 1959 Criminal Procedure Code was a complete legal phenomenon and fulfilled the tasks assigned to it in the field of criminal proceedings.
It can reasonably be asserted that the 1997 Criminal Procedure Code was based on almost 80 years of experience in the formation and development of Kazakhstan's criminal procedural law during the Soviet and post-Soviet periods.
We must clearly understand that the 1997 Criminal Procedure Code did not by any means signify that all issues in the field of legal regulation of criminal justice had been resolved. At a certain stage of its application, the emergence of new problems of a different nature and another degree of complexity was inevitable.
Further improvement of criminal procedural legislation continued within the framework of the implementation of the Concept of Legal Policy of the Republic of Kazakhstan, approved by Presidential Decree No. 949 of the Republic of Kazakhstan dated September 20, 2002, which defined the main directions for the development of the country's legal system for the period up to 2010. One of the objectives of improving the legal system of society and the state identified therein was the further consistent implementation, in specific legal provisions, of the fundamental principles of criminal proceedings aimed at protecting human rights and freedoms (Chapter 2).
A new impetus to the development of criminal procedural legislation was provided by the adoption of the Concept of Legal Policy for the period from 2010 to 2020, approved by Presidential Decree No. 858 of the Republic of Kazakhstan dated August 24, 2009.
While identifying, among other things, the substantial renewal of criminal procedural legislation as one of the main results of the implementation of the 2002 Concept of Legal Policy of the Republic of Kazakhstan, the new Concept did not stop at the achievements already made in this field and established the following provisions: “An effective criminal policy of the state is impossible without an optimal model of criminal proceedings. Speaking about the prospects for the development of criminal procedural law, it should be emphasized that the current Criminal Procedure Code of the Republic has, in general, brought the criminal justice system into conformity with the characteristics of a modern democratic state governed by the rule of law. The legislator's main objective was to develop criminal procedural legislation based on the recognition of constitutional provisions on human and civil rights and freedoms as directly applicable provisions that determine the meaning, content and application of laws and are ensured through justice. Therefore, the priority in the development of criminal procedural law remains the further consistent implementation of the fundamental principles of criminal proceedings aimed at protecting human rights and freedoms. To this end, it is necessary to develop optimal legal mechanisms providing for the effective application of criminal procedural legislation and legislation on operational investigative activities, for the purpose of the prompt and complete detection of crimes, the exposure and prosecution of persons who have committed them, a fair trial and the proper application of criminal law...” (Section 2, Subsection 2.9).
This political and legal orientation, the extensive practice of applying the provisions of the 1997 Criminal Procedure Code, and its periodic legislative amendments (since its entry into force, amendments and additions have been made to this Code by 75 laws) predetermined the adoption of the Criminal Procedure Code dated July 4, 2014, which entered into force on January 1, 2015 (Article 674 of the Criminal Procedure Code). With its entry into force, there are grounds to assert that the fourth stage in the history of the development of national criminal procedural legislation began.
The 2014 Criminal Procedure Code, as the principal, defining and direct source of criminal procedural law, comprises the General and Special Parts and consists of 16 sections, 73 chapters and 674 articles (Chapter 50 (Articles 448–469) was excluded by Law of the Republic of Kazakhstan No. 378-V dated October 31, 2015, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Improving the Justice System”). These provisions regulate proceedings in criminal cases (the movement of a criminal case) across seven ordinary and two exceptional stages of criminal proceedings. The principal purpose of the Criminal Procedure Code is to implement the provisions of the Criminal Code of the Republic of Kazakhstan dated July 3, 2014 (which entered into force on January 1, 2015) by bringing guilty persons to criminal liability in the event that they commit criminal offenses provided for by the Criminal Code. In other words, the institutions, rules and provisions of the Criminal Procedure Code ensure the implementation of the institutions, rules and provisions of the Criminal Code that establish the concept of a criminal offense, the grounds for criminal liability, the types of criminal offenses and the penalties imposed in the event of the commission of a criminal offense.
It should also be noted that the institutions, rules and provisions of the Criminal Code have a reverse influence on the criminal procedural activities of the bodies conducting criminal proceedings. For example, the commission of a criminal offense, as the sole ground for criminal liability, that is, an act containing all the elements of a crime or a criminal misdemeanor provided for by the Criminal Code (Article 4 of the Criminal Code), is reflected in the Criminal Procedure Code as a set of circumstances subject to proof in a criminal case (Article 113). In essence, this constitutes the programme and framework for the procedural activities of pre-trial investigation bodies and the court. The categories of crimes (Article 11 of the Criminal Code) have a significant impact on the choice of the procedural form of pre-trial investigation in criminal cases (Articles 187, 189, 190 and 191 of the Criminal Procedure Code), the main court hearing (Article 382 of the Criminal Procedure Code), the selection of criminal procedural coercive measures (Articles 136 and 138 of the Criminal Procedure Code), and so forth.
The Criminal Procedure Code is divided into two major interconnected parts: the General Part and the Special Part.
This means that the content of the institutions, rules and provisions of the General Part must be understood and applied uniformly by the bodies conducting criminal proceedings at all stages of criminal proceedings. Thus, the priority of the institutions, rules and provisions of the General Part of the Criminal Procedure Code, which contain initial and general provisions, over the institutions, rules and provisions of its Special Part is emphasized. For example, the legislation determining the procedure for criminal proceedings, the objectives and principles of criminal procedure, issues of criminal prosecution, rehabilitation, compensation for harm caused by unlawful actions of the body conducting criminal proceedings, the procedure for conducting proceedings in a criminal case, compliance with procedural time limits, ensuring the rights and obligations of participants in criminal proceedings and their safety, proving the circumstances of a criminal offense, and working with evidence, etc., must be interpreted (understood and applied) uniformly at all stages of criminal proceedings.
The conditions, grounds, procedure, sequence and other provisions set out in the General Part find their practical expression in the provisions of the Special Part within the scope of the relevant institutions and rules of criminal procedural law. This position and the interrelationship between legal provisions and other regulatory legal acts were previously expressed by the Constitutional Council, which stated in one of its resolutions: “...the structure and interrelationship of various provisions depend on the structure of the Constitution of the Republic. The Constitution is structured in such a way that Section I, ‘General Foundations of the Constitutional System’, contains the fundamental constitutional provisions governing the activities of the Republic and other basic principles (including Article 4), and the provisions of this section have priority over other provisions (in particular, over Article 62 contained in Section VI). This is a fundamental principle not only for constitutional provisions but also for the entire system of current law of the Republic” (emphasis added by the author — M.K.) (Resolution of the Constitutional Council of the Republic of Kazakhstan (hereinafter — RCC Resolution) dated October 29, 1999, No. 20/2, paragraph 2, descriptive and reasoning section).
It is considered important to provide a definition of the concept of a “stage” of criminal proceedings. This is a relatively separate and independent part of criminal proceedings or proceedings in a criminal case, representing a set of various types of criminal procedural legal relations between participants in criminal proceedings, established by law in connection with the adoption of procedural decisions or the performance of procedural actions by the body conducting criminal proceedings. It characterizes the specific nature of the movement of a criminal case at the pre-trial investigation stage, at the stage of consideration of the criminal case on its merits in court, and at other stages of criminal proceedings. For each stage of criminal proceedings, the Criminal Procedure Code regulates the commencement, development and termination of that stage, its goals and objectives, the range of participants, and the nature of the procedural decisions adopted and procedural actions performed. For example, the commencement of the pre-trial investigation stage is the official acceptance and registration of an application or report concerning a criminal offense, or the first urgent investigative action; its development consists of various procedural and investigative actions of the body conducting criminal proceedings related to the investigation of a criminal case based on an application or report; and its completion consists of adopting a decision based on the results of the investigation of the criminal case arising from the application or report (issuing a resolution to terminate the criminal case, drawing up and forwarding an indictment to the prosecutor, drawing up and forwarding a protocol on a criminal misdemeanor to the court, drawing up and forwarding to the court a resolution on the application of summary proceedings in cases involving criminal misdemeanors, or drawing up and forwarding to the prosecutor a resolution on the application of summary proceedings in cases involving minor crimes). The purpose of this stage is for the body conducting criminal proceedings, within a reasonable time and taking into account the complexity of the criminal case, the scope of the necessary procedural and investigative actions, and the depth and sufficiency of the examination of the circumstances of the case, but within the limitation period for criminal prosecution established by the Criminal Code (Article 71), to obtain factual data (evidence) relevant to the lawful and well-founded investigation of the criminal case. At the same time, the objectives addressed at this stage in order to achieve its goals are implemented through the performance of a specific range of procedural, investigative and covert investigative actions by the body conducting criminal proceedings. The procedural decisions adopted include decisions on accepting a criminal case for one's proceedings, terminating a criminal case, drawing up an indictment and forwarding the criminal case to the prosecutor, transferring an application or report in cases of private prosecution to the court having jurisdiction, and so forth.
The ordinary, traditional stages of criminal proceedings, which ensure the progress of a lawfully and reasonably investigated criminal case and proceedings in the judicial stages, are generally considered to include: commencement of pre-trial investigation (Articles 179–186 of the Criminal Procedure Code); the pre-trial investigation of the criminal case itself, conducted in the form of preliminary investigation, inquiry, accelerated pre-trial investigation, protocol-based proceedings and summary proceedings (Chapters 23–38, 64-1 of the Criminal Procedure Code); referral of the accused to trial by the prosecutor (or, in cases involving criminal misdemeanors, by the head of the inquiry body) and forwarding the criminal case to the court (Chapters 39, 55, 64-1 of the Criminal Procedure Code); preparation of the case for hearing by the court of first instance (“technical stage” (Chapter 41 of the Criminal Procedure Code)); proceedings in the court of first instance (“trial of the case”) (Chapters 42–47 of the Criminal Procedure Code); appellate review of judgments and rulings of the court that have not entered into legal force (“judicial review of the court and a new trial of the case”) (Chapters 48–49); and enforcement of judicial decisions (Chapter 51 of the Criminal Procedure Code).
The exceptional stages of criminal proceedings include two stages: cassation review of judgments and rulings of the court that have entered into legal force (“judicial review of courts”) (Chapter 52); and reopening of proceedings in a criminal case based on newly discovered circumstances (“judicial review of a court, courts and beyond”) (Chapter 53 of the Criminal Procedure Code). The exceptional nature of these stages is обусловлена by the prevalence of investigative and judicial errors, as well as violations of legality committed, respectively, during the investigation, the adjudication of the case on its merits by the court of first instance, and the review of judgments and rulings of the court that have entered into legal force. In order to ensure legality in criminal proceedings and protect the rights and freedoms of participants in the proceedings, the Criminal Procedure Code provides for the possibility of reviewing judicial acts by courts of all instances, including the Supreme Court, by way of “supervisory review” on certain legal grounds.
The specific nature of criminal procedural law as a branch of national law, comprising a body of criminal procedural rules established by the state and ensuring procedures for proceedings in a case during pre-trial investigation, judicial proceedings and the enforcement of judicial decisions, lies in the unconditional compliance of the bodies conducting criminal proceedings with the requirements of procedural form. Compliance with the rules of procedural form when adopting procedural decisions or performing procedural actions is the most important indicator of the admissibility of the entire proceedings in a case, that is, the legality of the process of proving the circumstances of a criminal offense (collecting, examining, evaluating and using evidence for the purpose of establishing circumstances relevant to the lawful, well-founded and fair resolution of the case). It is important to note the close relationship between procedural form and the institutions, rules and provisions of criminal procedural law.
Procedural form, as a criminal procedural category, consists of three main elements that ensure the legality and validity of the entire proceedings in a case and constitute the content of the procedural actions and decisions of the body conducting criminal proceedings:
— conditions, that is, legal facts (commission of a criminal offense, existence of grounds for commencing pre-trial investigation), the occurrence of which makes it possible to initiate proceedings in a case as a whole, perform a specific procedural action or adopt a specific procedural decision;
— grounds, that is, evidence obtained in accordance with the requirements of the Criminal Procedure Code and ensuring the legality and validity of the criminal procedural activities of its participants, provided that the conditions necessary for the emergence of procedural form are present;
— the procedure (sequence, process) for conducting proceedings in a criminal case as a whole, performing a specific procedural action and adopting a particular procedural decision, that is, the mechanism for the legal (procedural) support of proceedings in a case, a procedural action or a procedural decision.
For example, the condition for the emergence and commencement of criminal proceedings is the commission of a criminal offense by a person, which is reflected in the registration of an application or report concerning such offense in the Unified Register of Pre-Trial Investigations; a certain body of evidence (grounds) is necessary to declare a person a suspect, bring that person to criminal liability as an accused or defendant, and convict that person; before a person can be convicted, the criminal case must be accepted for proceedings, investigated and examined by the court (procedure, sequence, process). This is the general configuration of how procedural form manifests itself in relation to criminal proceedings as a whole; it also indicates the existence of a specific order, sequence and procedural framework in criminal proceedings. For example, most criminal cases must be preliminarily investigated under prosecutorial supervision before being brought to court. Another example: the condition for detaining a person as a suspect is the commission by that person of a criminal offense, regardless of its type or category (Articles 10–11 of the Criminal Code), for which a criminal penalty may be imposed. At the same time, in the case of a crime, detention is possible if the criminal law provides for a sanction in the form of imprisonment, while the term of imprisonment generally does not affect the decision to detain. In turn, the grounds for detention are evidence indicating that the person was apprehended while committing a crime or immediately after its commission, and so forth. The procedure, sequence and form of detention involve certain actions by the body conducting criminal proceedings in dealing with the suspect during the first and subsequent days of detention, including the mandatory preliminary medical examination, followed by the timely preparation of a detention report and a personal search report, interrogation of the suspect, issuance of a resolution upon the release of the detained person, provision of a certificate to that person upon release, and so forth (Articles 128–135, paragraph 4 of Article 529 of the Criminal Procedure Code).
Deviations from the procedural form are punishable: ranging from the exclusion of factual data from the body of evidence in a case to holding officials of bodies conducting criminal proceedings criminally, criminal-procedurally, and otherwise legally liable, depending on the nature and extent of the violation of the relevant elements of the procedural form (Article 112 of the CPC).
So, what constitutes the legislation determining the procedure for criminal proceedings in the Republic of Kazakhstan?
First and foremost, this is not only the principal and direct source of criminal procedural law, which is associated with the CPC. The CPC classifies the Constitution, constitutional legislation, universally recognized principles and norms of international law, international treaty and other obligations to which the Republic of Kazakhstan is a party, as well as normative resolutions of the Constitutional Council and the Supreme Court of the Republic of Kazakhstan, as constituent parts of criminal procedural law governing criminal proceedings (matters relating to pre-trial investigation of a criminal case, its consideration in court, and the execution of judicial decisions). Normative legal acts of the Prosecutor General, adopted within the scope of his competence on matters concerning the application of the provisions of the CPC and binding upon criminal prosecution authorities, are also of considerable importance for criminal proceedings. At the same time, normative legal acts of bodies conducting pre-trial investigations are adopted within the scope of their competence in coordination with the Prosecutor General (Part 6 of Article 58 of the CPC).
The aforementioned normative legal acts, including those that have lost legal force, can easily be found by consulting the Information and Legal System of Regulatory Legal Acts of the Republic of Kazakhstan.
Thus, the analysis should begin with determining the role and significance of the laws and other normative legal acts of the former USSR within the territory of Kazakhstan. The Resolution of the Supreme Council of the Republic of Kazakhstan dated December 16, 1991, “On the Entry into Force of the Constitutional Law of the Republic of Kazakhstan ‘On State Independence of the Republic of Kazakhstan’”, establishes: “Until the adoption of the relevant legislative and other normative acts of the Republic of Kazakhstan, the provisions of USSR legislation and the norms of international law recognized by the USSR may be applied within its territory, insofar as they do not contradict this Law or other legislative and normative acts of the Republic of Kazakhstan” (paragraph 2). In this regard, the following legal position is set out in the descriptive and reasoning part of Resolution No. 7 of the Constitutional Council of the Republic of Kazakhstan dated October 6, 1998: “...If courts and other state bodies, due to the absence in the Republic of Kazakhstan of a normative act of similar content, temporarily apply the act under consideration while complying with the requirements set out in paragraph 2 of the Resolution of the Supreme Council of the Republic of Kazakhstan dated December 16, 1991, ‘On the Procedure for Enacting the Constitutional Law of the Republic of Kazakhstan “On State Independence of the Republic of Kazakhstan”’, the issue of declaring it inapplicable (having lost its legal force within the territory of the Republic of Kazakhstan) may be resolved only after Kazakhstan adopts its own act of a similar nature.”
In the hierarchy of sources of criminal procedural law, understood as a body of criminal procedural rules ensuring proceedings in a case involving a criminal offense, the Constitution of the Republic of Kazakhstan dated August 30, 1995, objectively occupies the first place. Being the supreme law of the state, it establishes and heads the system of current law of the Republic of Kazakhstan, grants constitutional provisions supreme legal force and direct effect throughout the territory of the Republic, and establishes the mandatory official publication of all adopted normative legal acts concerning the rights, freedoms, and obligations of citizens as an essential condition for their application (Paragraph 4 of Article 4).
As the Fundamental Law, the Constitution heads the entire system of current law in the Republic of Kazakhstan, thereby giving rise to the mandatory and unconditional requirement that all other normative legal acts conform to its institutions and provisions. “Current law, within the meaning of Paragraph 1 of Article 4 of the Constitution of the Republic of Kazakhstan,” the Constitutional Council concludes in its resolution, “should be understood as those provisions of the Constitution and other normative legal acts listed in this Article, as well as the international obligations of the Republic, which, at a particular point in time, have not been repealed, and, with respect to international obligations, have not been terminated. Where amendments and additions are duly made to previously adopted acts, as well as where new acts are adopted, the provisions of such acts become part of current law, while those recognized as having lost force are excluded from it. Newly adopted provisions must be brought into force in compliance with the provisions on the retroactive effect of the law established in Subparagraph 5 of Paragraph 3 of Article 77 of the Constitution” (Normative Resolution of the Constitutional Council dated October 28, 1996, No. 6/2, paragraph 1).
There can be no doubt that constitutional provisions are relevant to the field of criminal proceedings, where the rights and interests of society, the state, and the individual come into the sharpest contact.
The Constitution contains numerous institutions and provisions that are of practical and legal significance for criminal procedural activities, their legality, and validity (for example, the provisions of Section II, “The Individual and the Citizen”). Thus, “...a citizen of the Republic of Kazakhstan may not be extradited to a foreign state unless otherwise established by international treaties” (Paragraph 1 of Article 11); in the Republic of Kazakhstan, human rights and freedoms are recognized and guaranteed in accordance with the Constitution, human rights and freedoms belong to everyone from birth, are recognized as absolute and inalienable, and determine the content and application of laws and other normative legal acts (Paragraphs 1 and 2 of Article 12); everyone has the right to recognition of their legal personality and the right to protect their rights and freedoms by all means not contrary to the law, including necessary defense; everyone has the right to judicial protection of their rights and freedoms; everyone has the right to receive qualified legal assistance (Paragraphs 1–3 of Article 13); everyone is equal before the law and the courts (Paragraph 1 of Article 14); everyone is obliged to observe the Constitution and legislation of the Republic of Kazakhstan and respect the rights, freedoms, honor, and dignity of other persons (Paragraph 1 of Article 34), etc.
Note: The original contains certain fragments with substantial distortions and omitted words (in particular, the paragraph concerning the relationship between the General and Special Parts, as well as certain sentences concerning the stages of criminal proceedings). Where the content cannot be reliably reconstructed from the text provided, I cannot guarantee the literal accuracy of the correction.
Spelling errors, typographical errors, and obvious errors resulting from text recognition have been corrected. The original structure, sequence of presentation, repetitions, numbering, references to normative legal acts, and the full length of the text have been preserved. The content, wording, and author's style have not been changed.
(Articles 16, 17, 18, 19, 25, 26, 34, 39). The constitutional provisions stipulating that the rights and freedoms of an individual and a citizen may be restricted only by laws, and that the rights and freedoms provided for in Articles 10, 11, 13–15, Paragraph 1 of Article 16, Articles 17, 19, and 22, and Paragraph 2 of Article 26 of the Constitution may under no circumstances be restricted, give particular significance and meaning to the criminal procedural activities of bodies conducting criminal proceedings (Paragraphs 1 and 3 of Article 39 of the Constitution).
“The human rights and freedoms referred to in Paragraph 2 of Article 12 of the Constitution of the Republic of Kazakhstan,” the Constitutional Council concludes in its resolution, “should be understood as human rights and freedoms recognized and guaranteed by the state in accordance with the Constitution. Recognition of rights and freedoms as absolute means that they extend to every person located within the territory of the Republic of Kazakhstan, regardless of whether that person holds citizenship of the Republic. The inalienability of human rights and freedoms means that no one, including the state, may deprive a person of the established rights and freedoms, except in cases provided for by the Constitution and laws adopted on its basis. Furthermore, the provision of Paragraph 2 of Article 12 stating that human rights and freedoms determine the content and application of laws and other normative legal acts should be understood to mean that the human rights and freedoms proclaimed by the Constitution constitute the fundamental basis for the development and adoption of laws and other normative legal acts establishing the conditions and procedures for the exercise of these rights and freedoms. Laws establishing human rights and freedoms, with the exception of those listed in Paragraph 3 of Article 39 of the Constitution, may be amended by the legislative body in the prescribed manner, taking into account the actual socio-economic capabilities of the state” (Normative Resolution of the Constitutional Council dated October 28, 1996, No. 6/2, paragraph 2).
Undoubtedly, a general analysis of the provisions of the Constitution relating to criminal proceedings would be incomplete without referring to the constitutional provisions concerning the immunity of the President of the Republic of Kazakhstan, Members of Parliament, the Chairperson and members of the Constitutional Council, judges, and the Prosecutor General in criminal proceedings (Articles 47, 52, 71, 79, and 83). These provisions guarantee the effective and independent exercise by the aforementioned persons of their political and professional activities and their subordination exclusively to the Constitution and the law. The close relationship between the Constitution and the CPC is established by Section VII of the Constitution, “Courts and Justice”, to whose provisions, as well as to other constitutional provisions as a whole, we will have to return repeatedly.
The CPC classifies constitutional laws as legislation determining the procedure for criminal proceedings, that is, laws designated as constitutional in the Constitution and adopted on matters provided for by and organically connected with the Constitution (Paragraph 4 of Article 46, Paragraph 4 of Article 49, Paragraph 6 of Article 71, Paragraph 4 of Article 75, Paragraph 1 of Article 92). Constitutional laws contain a large number of provisions directly related to matters of criminal procedure. For example, the status and powers of the First President of Kazakhstan are determined, alongside the Constitution, by the special Constitutional Law dated July 20, 2000, “On the First President of the Republic of Kazakhstan — Elbasy”, as well as by the Constitutional Law dated December 26, 1995, “On the President of the Republic of Kazakhstan”, which contain institutions, provisions, and rules of a criminal procedural nature. Thus, the First President of the Republic of Kazakhstan enjoys immunity, including in criminal proceedings (Article 3 of the Constitutional Law “On the First President of the Republic of Kazakhstan — Elbasy”); only the President exercises the power to grant pardons to citizens (Paragraph 6 of Article 19 of the Constitutional Law “On the President of the Republic of Kazakhstan”). Constitutional laws regulate the organization and activities of Parliament and the legal status of its deputies (October 16, 1995), the organization and activities of the Constitutional Council and the legal status of its members (December 29, 1995), and the judicial system of the Republic and the legal status of judges (December 25, 2000). In accordance with these laws, the provisions, rules, and institutions of the CPC concerning immunity in criminal proceedings apply to Members of Parliament, members of the Constitutional Council, and all judges of the Republic.
The third most significant source in the hierarchy of current criminal procedural legislation, as set out in Part 1 of Article 1 of the CPC, is the CPC itself, which was adopted by Parliament on July 4, 2014, and entered into force in January 2015 (Article 674 of the CPC). The CPC was adopted in accordance with Paragraph 3 of Article 61 of the Constitution of the Republic of Kazakhstan: “Parliament shall have the right to issue laws regulating the most important public relations and establishing fundamental principles and norms relating to: 6) matters of judicial organization and judicial proceedings.” In accordance with the Law of the Republic of Kazakhstan dated April 6, 2016, “On Legal Acts”, the CPC belongs to the principal types of normative legal acts (Subparagraph 1 of Paragraph 2 of Article 7), which consolidate and systematize legal provisions regulating homogeneous and most important public relations in the field of criminal proceedings (Subparagraphs 13, 15, and 16 of Paragraph 1 of Article 3-1).
The priority of taking into account the institutions, provisions, and rules of the Constitution in the content of the CPC and in the criminal procedural activities of bodies conducting criminal proceedings is indisputable and is reflected in the text of its provisions. Thus, in accordance with Article 78 of the Constitution and Paragraph 2 of Article 10 of the CPC, courts may not apply laws and other normative legal acts that infringe upon the human and civil rights and freedoms enshrined in the Constitution. If a court determines that a law or other normative legal act subject to application infringes upon the human and civil rights and freedoms enshrined in the Constitution, it is obliged to suspend proceedings in the case and submit a petition to the Constitutional Council seeking recognition of that act as unconstitutional.
The CPC regulates the criminal procedural activities of a wide range of participants in criminal proceedings. The legal status of each of them is regulated in detail by the CPC and by laws governing law enforcement, special, prosecutorial, and human rights protection activities in criminal proceedings. Therefore, it is necessary to ensure correspondence between the criminal procedural provisions of these laws and the provisions, rules, and institutions of the CPC. The criminal procedural provisions of these laws, and this requirement is stipulated by the CPC, must be mandatorily incorporated into its content (Part 1 of Article 1). This is a mandatory condition for their own legal force and for the legal force of the laws by which they are established. For example, the methods of operational-search activities of criminal prosecution authorities and the use of their results are regulated by the Law dated September 15, 1994, “On Operational-Search Activities” (Article 14), and are reflected in a number of provisions of the CPC relating to the collection and use of evidence in the process of proving criminal cases (Articles 111, 121–125, 231–251); materials of counterintelligence activities are also used to prevent, detect, and suppress intelligence and/or subversive activities and to bring persons to criminal liability in accordance with the procedure established by the CPC, pursuant to the Law dated December 28, 2016, “On Counterintelligence Activities” (Article 12).
An integral part of criminal procedural law is the body of international treaty and other obligations of the Republic of Kazakhstan. Thus, in accordance with Article 26 of the United Nations Convention on the Law of Treaties dated May 23, 1969 (which entered into force on January 27, 1980, and to which the Republic of Kazakhstan acceded pursuant to the Resolution of the Supreme Council of the Republic of Kazakhstan dated March 3, 1993), every treaty in force is binding upon its parties and must be performed by them in good faith. Moreover, and this is of fundamental importance, “ratification”, “acceptance”, “approval”, and “accession” mean, as the case may be, the international act so named by which a state expresses, at the international level, its consent to be bound by a treaty (Subparagraph (b) of Paragraph 1 of Article 2).
In the Republic of Kazakhstan, the procedure for the conclusion, performance, amendment, and termination of various types of international treaties is determined by the Law of the Republic of Kazakhstan dated May 30, 2005, “On International Treaties of the Republic of Kazakhstan”.
According to Subparagraph 6 of Article 1 of this Law, an international treaty of the Republic of Kazakhstan means an international agreement concluded by the Republic of Kazakhstan with a foreign state (foreign states) or with an international organization (international organizations) in written form and governed by international law, regardless of whether such agreement is contained in a single document or in several related documents, and regardless of its specific designation (for example, treaty, convention, pact, agreement, etc.). International treaties concluded on behalf of the Republic of Kazakhstan are interstate treaties; those concluded on behalf of the Government of the Republic of Kazakhstan are intergovernmental treaties; and those concluded on behalf of central executive bodies, as well as state bodies directly subordinate and accountable to the President of the Republic of Kazakhstan, are interdepartmental treaties.
The Law distinguishes between international treaties subject to ratification through the adoption of laws by the Parliament of the Republic of Kazakhstan and treaties that do not require ratification and are approved by the President or the Government of the Republic (Articles 11–19). For example, in accordance with Article 11 of the Law, the following international treaties are subject to ratification in all cases: 1) treaties whose subject matter concerns human and civil rights and freedoms; 2) treaties whose implementation requires amendments to existing laws or the adoption of new laws, as well as treaties establishing rules other than those provided for by the laws of the Republic of Kazakhstan; 3) treaties concerning the territorial delimitation of the Republic of Kazakhstan with other states, including international treaties concerning the passage of the State Border of the Republic of Kazakhstan, as well as the delimitation of the exclusive economic zone and continental shelf of the Republic of Kazakhstan, etc. In the context of the above, legal positions of the Constitutional Council and the Supreme Court on the application of international law and its use in domestic legal procedures have been established, including for criminal proceedings:
— “Paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan should be understood to mean that international treaties concluded by the Republic in accordance with the Constitution of the Republic and in the manner prescribed by law, and ratified by the Parliament of the Republic through the adoption of an appropriate law, have priority legal force over the legislation of the Republic” (Normative Resolution of the Constitutional Council dated October 11, 2000, No. 18/2, paragraph 1 of the operative part);
— “International treaties that did not provide for ratification as a condition for their entry into force and were concluded before the adoption of the Constitution of 1995 are valid and retain priority over the legislation of the Republic if such priority for these international treaties is expressly provided for by the laws of the Republic regulating the relevant areas of legal relations” (Normative Resolution of the Constitutional Council dated October 11, 2000, No. 18/2, paragraph 2 of the operative part);
— “Subparagraph 7 of Article 54 of the Constitution of the Republic of Kazakhstan, in relation to the subject matter of the application, means that the Fundamental Law of the Republic attaches particular importance to ratification as a means of expressing the state's consent to be bound by an international treaty” (paragraph 1 of the operative part);
— “Acts of the Republic of Kazakhstan on the ratification of international treaties and acts of the Republic of Kazakhstan on accession to international treaties are equivalent in their legal force and legal consequences. In this regard, international treaties whose binding nature for Kazakhstan has been established by normative legal acts on accession to international treaties, adopted by the highest representative body of the Republic exercising legislative functions (the Supreme Council or Parliament), and by decrees of the President of the Republic of Kazakhstan having the force of law, are equated with international treaties ratified by the Republic of Kazakhstan” (paragraph 2 of the operative part);
— “Unratified international treaties of the Republic of Kazakhstan do not have priority over the laws of the Republic and must be implemented to the extent that they do not conflict with the laws of the Republic. In the event of a conflict between them, the parties to the treaties may resolve it through conciliation procedures and the adoption of other measures to overcome the conflict in accordance with the Law of the Republic of Kazakhstan dated May 30, 2005, ‘On International Treaties of the Republic of Kazakhstan’, as well as the norms of international law ...” (paragraph 3 of the operative part);
— “If an international treaty of the Republic of Kazakhstan or certain provisions thereof are recognized, in the prescribed manner, as contradicting the Constitution of the Republic, such treaty or its relevant provisions shall not be subject to implementation” (paragraph 4 of the operative part) (Normative Resolution of the Constitutional Council dated May 18, 2006, No. 2, paragraphs 1, 2, 3, and 4 of the operative part);
— “Provisions of international treaties that do not require the adoption of laws for their application shall operate directly in the Republic of Kazakhstan. In other cases, the relevant law adopted to implement the provisions of a ratified international treaty shall be applied alongside the international treaty” (“On the Application of the Norms of International Treaties of the Republic of Kazakhstan”: Normative Resolution of the Supreme Court dated July 10, 2008, No. 1, paragraph 3), etc.
For use in criminal proceedings, it is necessary to distinguish between international human rights instruments that are also directly related to the administration of justice and criminal procedure and that are universal in nature, instruments that elaborate on universal instruments, and instruments that are regional or bilateral in terms of their subjects of law. This classification is based primarily on the territorial jurisdiction of the body that adopted the normative legal act. In the context of the above, against the background of Kazakhstan's accession to and ratification of most of the international instruments listed below, it must also be acknowledged that there has been no comprehensive analysis of the comparable provisions of these international instruments against the norms of national legislation determining the procedure for criminal proceedings. Undoubtedly, this issue requires urgent and thorough interdepartmental and inter-university scientific research, as well as the elimination, in the prescribed manner, of gaps in criminal procedural legislation.
In general, all international human rights instruments whose institutions, norms, and provisions are directly relevant to the field of criminal procedure can be provisionally classified into the following major groups.
First group. These are the foundational, general international instruments containing substantial provisions directly related to criminal procedure: the Universal Declaration of Human Rights (1948, containing approximately 11 articles of a criminal procedural nature), the International Covenant on Civil and Political Rights (hereinafter referred to as the ICCPR) (1966, Law of the Republic of Kazakhstan dated November 28, 2005, containing approximately 14 articles of a criminal procedural nature), and its two Optional Protocols (1966 and 1989, which serve as a basis for the development of institutions concerning the freedom to appeal judicial decisions in criminal cases and also affirm the desirability of abolishing the death penalty). Thus, the Preamble to the Universal Declaration of Human Rights proclaims this document as a common standard of achievement for all peoples and all nations; Paragraph 2 of Article 2 of the ICCPR imposes the following obligation on States Parties: “...Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant”, etc. By the Law dated February 11, 2009, the Republic of Kazakhstan ratified the 1966 Optional Protocol to the ICCPR, making the following important declaration in this regard: “The Republic of Kazakhstan, in accordance with Article 1 of the Optional Protocol, recognizes the competence of the Human Rights Committee to receive and consider communications from individuals subject to the jurisdiction of the Republic of Kazakhstan concerning acts and omissions of public authorities in relation to acts or decisions adopted by them, which occurred after the date of entry into force of this Optional Protocol for the Republic of Kazakhstan”.
In the context of the foregoing, careful consideration must be given to the so-called Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (ICCPR) (1985, Island of Sicily), which are related to the ICCPR and constitute an annex to it (see also the 1995 Johannesburg Principles, which recognize the continued applicability of the Siracusa Principles relating to the provisions of the International Covenant on Civil and Political Rights, as well as the 1984 Paris Minimum Standards of Human Rights Norms in a State of Emergency). The value of this document lies in the fact that it provides clarification of certain restrictions on individual rights established by the ICCPR and contains a list of individual rights (of a detained person, a person taken into custody, a suspect, an accused person, and a convicted person) that cannot be restricted even under a state of emergency threatening the life of the nation. This is particularly fundamental when implementing any human rights standards of international law in national criminal proceedings.
In particular, the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (United Nations. Economic and Social Council. UN document E/CN.4/1985/4, Annex (1985)) provide that: no restrictions or grounds for their application in respect of the rights guaranteed under the Covenant are permitted, except for restrictions provided for in the provisions of the Covenant itself (para. 1); the scope of application of a restriction may not be interpreted in such a way as to jeopardize the essence of the right concerned (para. 2); the interpretation of any restrictions must be as specific as possible, and any doubts must be resolved in favour of protecting the rights in question (para. 3); the interpretation of restrictions must take into account the nature and context in which each of the restricted rights exists (para. 4); all restrictions on rights recognized under the Covenant must be established in accordance with national law and must be consistent with the aims and purposes of the Covenant (para. 5); the restrictions enumerated in the Covenant may not be applied for purposes other than those specified in the Covenant (para. 6); arbitrary application of restrictions is not permitted (para. 7); the law must provide for the possibility of appeal and effective remedies against the unlawful introduction or application of each restriction (para. 8); no restriction on rights recognized under the Covenant may be discriminatory in relation to Article 2, paragraph 1 (Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status) (para. 9). Where the Covenant stipulates that a restriction must be “necessary,” the term “necessary” implies that such a restriction: (a) is based on one of the provisions under which such a restriction is permissible pursuant to one of the articles of the Covenant; (b) meets a pressing need of the State or society; (c) pursues legitimate aims; and (d) is proportionate to those aims. Any assessment of the necessity of a particular restriction must be based on objective factors (para. 10). In applying a restriction, the State must not employ measures that result in a greater limitation of rights than is necessary to achieve the purpose for which the restriction is introduced (para. 11). The burden of proving the lawfulness of restrictions on rights guaranteed under the Covenant rests with the State (para. 12). The requirement set out in Article 12 of the Covenant, according to which any restriction must be compatible with the other rights recognized under the Covenant, also applies to restrictions on other rights recognized under the Covenant (para. 13). Restrictions on rights recognized under the Covenant may not be interpreted in such a way as to limit the exercise of any human rights guaranteed to a greater extent by other international obligations of the State.
This document, which is relevant to national lawmaking and law enforcement, establishes a set of rules containing general principles whose observance is mandatory in the field of criminal proceedings.
Thus, no State, including those that are not parties to the Covenant, may, under any circumstances, including a state of emergency, suspend or violate the following rights: (a) the right to life; (b) the right to freedom from torture or cruel, inhuman or degrading treatment or punishment, as well as medical or scientific experimentation without free consent; (c) the right to freedom from slavery, the slave trade and servitude; and (d) the right to have criminal responsibility determined solely by the provisions of the legislation that was in force and applicable at the time the act was committed, in accordance with the definition of this right in the Covenant. Customary international law prohibits the denial of these fundamental rights under all circumstances (para. 69).
Although the right to liberty and security of person against arbitrary arrest and detention (Article 9) and the right to a fair and public hearing of a criminal case before a court (Article 14) may lawfully be restricted where there is an imperative necessity in an emergency situation, it is practically impossible to envisage a state of emergency in which denying a person the fundamental right to respect for the dignity inherent in the human person would be strictly necessary. Respect for such fundamental rights is an indispensable condition for ensuring those rights from which derogation is not permitted and is necessary for effective legal protection against violations of those rights. In particular: (a) records must be kept of all arrests and detentions and of places of detention; wherever possible, such records should be maintained in one centralized location, where they must be made available to the public without delay; (b) no one may be detained for an indefinite period, whether in pre-trial detention without charges being brought or in custody pending trial; (c) no one should be held incommunicado, without the right to communicate with family members, close relatives or a lawyer, for a period exceeding several days, for example, from three to seven days; (d) where a person has been detained without charges being brought, an independent court must regularly review the necessity of such detention in order to extend the period of custody; (e) everyone has the right, upon being charged with any offence, to a fair and public hearing of the case by a competent, independent and impartial tribunal established by law; (f) cases involving civilians should ordinarily be tried by ordinary courts. Where there is an imperative necessity to establish military tribunals or special courts for the trial of civilians, it is essential to ensure that such courts are competent, independent and impartial, and that their powers are periodically reviewed by the competent authorities.
Everyone charged with a criminal offence has the right to be presumed innocent until proven guilty according to law and the right to, at a minimum, the following guarantees of a fair trial: to be informed promptly and in detail, in a language which he or she understands, of the nature and cause of the charge against him or her; to have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing; to defend himself or herself through legal assistance of his or her own choosing, free of charge where he or she does not have sufficient means to pay for such assistance; to be tried in his or her presence; not to be compelled to testify against himself or herself or to confess guilt; to have the right to call and examine witnesses on his or her behalf; the right to a public hearing, except where the court decides to hold a closed hearing on grounds of the need to ensure security and adequate protection against abuses; the right to have his or her conviction and sentence reviewed by a higher judicial authority; (h) appropriate records of the proceedings must be kept in all circumstances; (i) no one shall be tried or punished again for an offence for which he or she has already been finally convicted or acquitted (para. 70).
Second group. This group comprises international instruments that elaborate on the above-mentioned fundamental general international human rights instruments in relation to various relevant areas of criminal procedural activity, such as the UN Conventions: the Convention against Torture (1984, Law of the Republic of Kazakhstan dated 29 June 1998), the Convention against Corruption (2003, Law of the Republic of Kazakhstan dated 4 May 2008), the Convention against Transnational Organized Crime (2000, Law of the Republic of Kazakhstan dated 4 June 2008), the Convention for the Protection of All Persons from Enforced Disappearance (2006, Law of the Republic of Kazakhstan dated 15 December 2008), etc. These instruments contain specific provisions governing criminal procedure that should be incorporated into the CPC, for example, through the introduction of separate chapters on proceedings in cases involving torture, corruption and organized crime. This is, for instance, the objective of Article 2, paragraph 1, of the Convention against Torture, which provides that each State Party shall take legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction and even specifies some of these measures (classifying torture as a serious criminal offence, organizing prompt investigations into allegations of torture, as a general rule, placing a person suspected of torture in custody, ensuring the safety of victims and witnesses, and conducting certain types of forensic examinations).
By the Law dated 26 June 2008, the Republic of Kazakhstan ratified the Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on 18 December 2002. Under this Protocol, the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was established within the Committee against Torture (Article 2). It also recommended the establishment, at the national level, of one or several bodies authorized to visit all forms of places of deprivation of liberty in order to prevent torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as national preventive mechanisms) (Article 3). Such places are those which a person is not permitted to leave at his or her own will by order of any judicial, administrative or other authority (Article 4).
By the Law dated 2 July 2013, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the Establishment of a National Preventive Mechanism Aimed at Preventing Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” a national preventive mechanism was established in the Republic of Kazakhstan. It operates in the form of a system for preventing torture and other cruel, inhuman or degrading treatment or punishment, functioning through the activities of its participants. Within the framework of their activities, participants in the national preventive mechanism visit institutions responsible for the execution of sentences (correctional institutions, pre-trial detention centres, garrison guardhouses and units of garrison guardhouses), as well as other organizations designated by the laws of the Republic of Kazakhstan for visits by such participants. The participants in the national preventive mechanism include the Commissioner for Human Rights, as well as members of public monitoring commissions and public associations engaged in protecting the rights and legitimate interests of citizens, lawyers, social workers and doctors, selected by the Coordination Council under the Commissioner for Human Rights. The Commissioner for Human Rights coordinates the activities of the participants in the national preventive mechanism and, in accordance with the legislation of the Republic of Kazakhstan, takes measures to ensure that the participants in the national preventive mechanism have the necessary capacity and professional expertise, etc.
In light of the foregoing, the recommendations of the specialized Committee on Human Rights (Articles 28–45 of the Covenant) and the specialized Committee against Torture (Articles 17–24 of the Convention), established by these international instruments, are useful for the legislature and central government bodies of Kazakhstan in their efforts to bring the country's domestic legislation into conformity with the ICCPR and the Convention against Torture. These recommendations are developed in the form of reports, annual reports, concluding observations, proposals, communications, opinions, etc., exclusively for the purpose of monitoring compliance with human rights in States Parties to the aforementioned and other international human rights instruments. For example, valuable recommendations are contained in the Concluding Observations of the Committee against Torture dated 12 December 2014 on the third periodic report of Kazakhstan (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). This report was prepared in accordance with Article 19, paragraph 1, of the UN Convention against Torture and approved by Resolution No. 617 of the Government of the Republic of Kazakhstan dated 18 June 2013. Pursuant to paragraph 2 of the Resolution, the Ministry of Foreign Affairs of the Republic of Kazakhstan was instructed to submit, in accordance with the established procedure, to the United Nations Committee against Torture the third periodic report on the measures taken by the Republic of Kazakhstan to implement the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
This is particularly important because, in recent years, there has been an upward trend in the number of applications submitted by citizens of the Republic of Kazakhstan to the aforementioned UN Committees, including applications concerning violations of their rights and freedoms in the field of criminal proceedings. This circumstance indicates the need for a fundamental review of the work involved in considering complaints submitted by participants in criminal proceedings. Such work should include mandatory verification of all arguments set out in a complaint, a direct meeting with the complainant and a reasoned explanation of the results of the review, as well as the immediate restoration of the complainant's violated rights and freedoms.
Closely connected with the requirements of the aforementioned international instruments is the International Convention for the Protection of All Persons from Enforced Disappearance, adopted in New York on 20 December 2006 (ratified by the Law of the Republic of Kazakhstan dated 15 December 2008). For the purposes of this Convention, enforced disappearance means the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, thereby placing such a person outside the protection of the law (Article 2). The Convention also requires each State Party to take appropriate measures to investigate acts defined in Article 2 when they are committed by persons or groups of persons acting without the authorization, support or acquiescence of the State, and to bring those responsible to justice (Article 3).
Third group. A significant role in strengthening and developing human rights standards in criminal proceedings is played by the provisions of UN Conventions and other international instruments aimed at protecting the legal capacity and legal status of special subjects of law in criminal proceedings. Examples include the Convention on the Elimination of All Forms of Discrimination against Women (1979, Law of the Republic of Kazakhstan dated 29 June 1998), the Beijing Rules for the Administration of Juvenile Justice (1985), the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985), the Standard Minimum Rules for the Treatment of Prisoners (2015, the Nelson Mandela Rules), the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (1984), etc.
The provisions of these instruments could supplement the body of rules in the General Part of the CPC concerning the strengthening of the legal capacity and procedural rights of participants in criminal proceedings whose interests are affected by them.
Fourth group. A significant potential for enhancing the human rights foundations of domestic criminal proceedings is provided by a package of international instruments regulating the organizational, legal and ethical foundations of the activities of law enforcement and judicial bodies, as well as the legal profession, adopted by the United Nations or within the framework of the United Nations, and also endorsed by the United Nations: the Code of Conduct for Law Enforcement Officials (1979), the Basic Principles on the Independence of the Judiciary (1985), the Basic Principles on the Role of Lawyers (1990), the Standards of Professional Responsibility and the Declaration of the Basic Rights and Duties of Prosecutors (1999).
Fifth Group. Issues of criminal procedure are the subject of bilateral international treaties, agreements and conventions concluded by Kazakhstan with foreign states on matters of providing legal assistance in criminal cases, the established and stable provisions of which may also be reproduced, in one form or another, in the country's Criminal Procedure Code.
The value of these instruments lies in the fact that they substantially specify, in practical terms, the provisions and principles of universal and other international human rights instruments in the field of criminal proceedings (with the Republic of Azerbaijan, Hungary, Georgia, the Islamic Republic of Iran, the Islamic Republic of Pakistan, the Italian Republic, the Hashemite Kingdom of Jordan, the DPRK, the PRC, the Kyrgyz Republic, Canada, the Kingdom of Spain, the Principality of Monaco, the Republic of Lithuania, Mongolia, the United Arab Emirates, the Republic of Poland, the Republic of Moldova, the Republic of Korea, the Republic of Uzbekistan, the Republic of India, the Republic of Bulgaria, the Republic of Serbia, Romania, the United Kingdom of Great Britain and Northern Ireland, the Slovak Republic, the United States of America, the Socialist Republic of Vietnam, the Republic of Turkey, Ukraine, the French Republic, the Federative Republic of Brazil, the Czech Republic and the Republic of Estonia).
Bilateral international instruments primarily regulate three issues: legal assistance in criminal cases; the legal regulation of the extradition of persons who have committed crimes; and the legal regulation of the transfer of convicted persons to serve sentences of imprisonment, or of persons suffering from mental disorders for the purpose of undergoing compulsory treatment, to the states of which they are citizens.
It is advisable to provide a list of these instruments according to their subject matter.

Legal assistance in criminal cases:

On the Ratification of the Treaty between the Republic of Kazakhstan and Mongolia on Mutual Legal Assistance in Civil and Criminal Matters of 22 October 1993: Resolution of the Supreme Council of the Republic of Kazakhstan of 22 June 1994; On the Ratification of the Treaty between the Republic of Kazakhstan and the People's Republic of China on the Provision of Legal Assistance in Civil and Criminal Matters of 14 January 1993: Decree of the President of the Republic of Kazakhstan of 30 May 1995; On the Ratification of the Treaty between the Republic of Kazakhstan and the Kyrgyz Republic on Mutual Legal Assistance in Civil and Criminal Matters of 26 August 1996: Law of the Republic of Kazakhstan of 30 June 1997; On the Ratification of the Treaty between the Republic of Kazakhstan and the Democratic People's Republic of Korea on Mutual Legal Assistance in Civil and Criminal Matters of 7 April 1997: Law of the Republic of Kazakhstan of 9 November 1998; On the Ratification of the Treaty between the Republic of Kazakhstan and the Republic of Uzbekistan on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 2 June 1997: Law of the Republic of Kazakhstan of 8 May 1998; On the Ratification of the Treaty between the Republic of Kazakhstan and the Republic of Lithuania on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters and the Protocol to the Treaty between the Republic of Kazakhstan and the Republic of Lithuania on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 7 March 1997: Law of the Republic of Kazakhstan of 9 November 1998; On the Ratification of the Treaty between the Republic of Kazakhstan and the Islamic Republic of Pakistan on Mutual Legal Assistance in Civil, Family and Criminal Matters of 23 August 1995: Law of the Republic of Kazakhstan of 9 November 1998; On the Ratification of the Agreement between the Republic of Kazakhstan and the Republic of Turkey on Legal Assistance in Criminal Matters and the Extradition of Persons of 15 August 1995: Law of the Republic of Kazakhstan of 6 April 1999 No. 367; On the Ratification of the Treaty between the Republic of Kazakhstan and the Republic of India on Mutual Legal Assistance in Criminal Matters of 17 August 1999: Law of the Republic of Kazakhstan of 17 May 2000; On the Ratification of the Agreement between the Republic of Kazakhstan and the United States of America on the Surrender of Persons to the International Criminal Court of 22 September 2003: Law of the Republic of Kazakhstan of 4 October 2004; On the Ratification of the Treaty between the Republic of Kazakhstan and Georgia on Mutual Legal Assistance in Civil and Criminal Matters and the Protocol thereto of 17 September 1996: Law of the Republic of Kazakhstan of 14 January 2006; On the Ratification of the Treaty between the Republic of Kazakhstan and the Republic of Korea on Mutual Legal Assistance in Criminal Matters of 13 November 2003: Law of the Republic of Kazakhstan of 8 July 2011; On the Ratification of the Agreement between the Republic of Kazakhstan and the United Arab Emirates on Mutual Legal Assistance in Criminal Matters of 16 March 2009: Law of the Republic of Kazakhstan of 15 November 2011; On the Ratification of the Convention between the Republic of Kazakhstan and the Kingdom of Spain on Mutual Legal Assistance in Criminal Matters of 17 June 2011: Law of the Republic of Kazakhstan of 19 October 2012; On the Ratification of the Treaty between the Republic of Kazakhstan and the Czech Republic on Mutual Legal Assistance in Criminal Matters of 6 June 2013: Law of the Republic of Kazakhstan of 25 November 2013; On the Ratification of the Treaty between the Republic of Kazakhstan and the United States of America on Mutual Legal Assistance in Criminal Matters of 20 February 2015: Law of the Republic of Kazakhstan of 16 July 2015; On the Ratification of the Treaty between the Republic of Kazakhstan and the Republic of Bulgaria on Legal Assistance in Criminal Matters of 14 November 2014: Law of the Republic of Kazakhstan of 21 September 2015; On the Ratification of the Treaty between the Republic of Kazakhstan and the Italian Republic on Mutual Legal Assistance in Criminal Matters of 22 January 2015: Law of the Republic of Kazakhstan of 21 September 2015; On the Ratification of the Treaty between the Republic of Kazakhstan and Romania on Legal Assistance in Criminal Matters: Law of the Republic of Kazakhstan of 22 September 2015; On the Ratification of the Treaty between the Republic of Kazakhstan and the Principality of Monaco on Mutual Legal Assistance in Criminal Matters of 5 March 2015: Law of the Republic of Kazakhstan of 12 November 2015; On the Ratification of the Treaty between the Republic of Kazakhstan and Hungary on Mutual Legal Assistance in Criminal Matters of April 2015: Law of the Republic of Kazakhstan of 12 November 2015; On the Ratification of the Treaty between the Republic of Kazakhstan and the United Kingdom of Great Britain and Northern Ireland on Mutual Legal Assistance in Criminal Matters of 3 November 2015: Law of the Republic of Kazakhstan of 24 February 2016; On the Ratification of the Treaty between the Republic of Kazakhstan and the Republic of Serbia on Legal Assistance in Criminal Matters of 24 August 2016: Law of the Republic of Kazakhstan of 18 October 2017; On the Ratification of the Agreement between the Republic of Kazakhstan and the Hashemite Kingdom of Jordan on Mutual Legal Assistance in Criminal Matters: Law of the Republic of Kazakhstan of 5 March 2019; On the Ratification of the Treaty between the Republic of Kazakhstan and the Socialist Republic of Vietnam on Mutual Legal Assistance in Criminal Matters of 15 June 2017: Law of the Republic of Kazakhstan of 5 April 2019; On the Ratification of the Treaty between the Republic of Kazakhstan and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters of 20 June 2018: Law of the Republic of Kazakhstan of 31 March 2020.

Extradition of persons who have committed crimes:

On the Ratification of the Treaty between the Republic of Kazakhstan and Mongolia on the Extradition of Persons Who Have Committed Crimes for the Purpose of Bringing Them to Criminal Liability or Enforcing a Sentence of 22 October 1993: Resolution of the Supreme Council of the Republic of Kazakhstan of 12 July 1994; On the Ratification of the Treaty between the Republic of Kazakhstan and the People's Republic of China on Extradition of 5 July 1996: Law of the Republic of Kazakhstan of 13 June 1997; On the Ratification of the Treaty between the Republic of Kazakhstan and the Kyrgyz Republic on the Extradition of Persons Who Have Committed Crimes and the Conduct of Criminal Prosecution of 8 April 1997: Law of the Republic of Kazakhstan of 13 July 1999; On the Ratification of the Agreement between the Republic of Kazakhstan and the Republic of Turkey on Legal Assistance in Criminal Matters and the Extradition of Persons of 15 August 1995: Law of the Republic of Kazakhstan of 6 April 1999; On the Ratification of the Treaty between the Republic of Kazakhstan and the Republic of Korea on Extradition of 13 November 2003: Law of the Republic of Kazakhstan of 14 February 2012; On the Ratification of the Agreement between the Republic of Kazakhstan and the United Arab Emirates on the Extradition of Criminals of 16 March 2009: Law of the Republic of Kazakhstan of 20 April 2012; On the Ratification of the Treaty between the Republic of Kazakhstan and the Islamic Republic of Iran on Extradition of 29 April 2012: Law of the Republic of Kazakhstan of 19 October 2012; On the Ratification of the Treaty between the Republic of Kazakhstan and the Kingdom of Spain on Extradition of 21 November 2012: Law of the Republic of Kazakhstan of 23 May 2013; On the Ratification of the Treaty between the Republic of Kazakhstan and Hungary on Extradition of 3 June 2014: Law of the Republic of Kazakhstan of 15 April 2015; On the Ratification of the Treaty between the Republic of Kazakhstan and Romania on the Extradition of Persons of 14 November 2014: Law of the Republic of Kazakhstan of 22 June 2015; On the Ratification of the Treaty between the Republic of Kazakhstan and the Republic of Bulgaria on the Extradition of Persons of 14 November 2014: Law of the Republic of Kazakhstan of 24 June 2015; On the Ratification of the Treaty between the Republic of Kazakhstan and the Italian Republic on the Extradition of Persons of 22 January 2015: Law of the Republic of Kazakhstan of 21 September 2015; On the Ratification of the Treaty between the Republic of Kazakhstan and the Republic of Serbia on Extradition of 24 August 2016: Law of the Republic of Kazakhstan of 8 October 2017; On the Ratification of the Agreement between the Republic of Kazakhstan and the Kingdom of Saudi Arabia on Extradition of 25 October 2016: Law of the Republic of Kazakhstan of 10 November 2017; On the Ratification of the Treaty between the Republic of Kazakhstan and the Socialist Republic of Vietnam on Extradition of 15 June 2017: Law of the Republic of Kazakhstan of 1 March 2018; On the Ratification of the Agreement between the Republic of Kazakhstan and the Hashemite Kingdom of Jordan on the Extradition of Persons of 1 November 2017: Law of the Republic of Kazakhstan of 5 March 2019; On the Ratification of the Treaty between the Republic of Kazakhstan and Ukraine on Extradition of 29 October 2018: Law of the Republic of Kazakhstan of 25 November 2019; On the Ratification of the Treaty between the Republic of Kazakhstan and the Federative Republic of Brazil on the Extradition of Persons of 20 June 2018: Law of the Republic of Kazakhstan of 31 March 2020.

Transfer of convicted persons to serve sentences of imprisonment in the state of which they are citizens:

On the Ratification of the Treaty between the Republic of Kazakhstan and the Republic of Azerbaijan on the Transfer of Persons Sentenced to Imprisonment for Further Service of Their Sentences of 10 June 1997: Law of the Republic of Kazakhstan of 30 December 1999; On the Ratification of the Treaty between the Republic of Kazakhstan and Ukraine on the Transfer of Persons Sentenced to Imprisonment for Further Service of Their Sentences of 17 September 1999: Law of the Republic of Kazakhstan of 28 April 2000; On the Ratification of the Treaty between the Republic of Kazakhstan and Turkmenistan on the Transfer of Persons Sentenced to Imprisonment for Further Service of Their Sentences of 5 July 2001: Law of the Republic of Kazakhstan of 5 November 2003; On the Ratification of the Treaty between the Republic of Kazakhstan and the Kingdom of Spain on the Transfer of Convicted Persons of 21 November 2012: Law of the Republic of Kazakhstan of 23 May 2013; On the Ratification of the Treaty between the Republic of Kazakhstan and the People's Republic of China on the Transfer of Convicted Persons of 22 February 2011: Law of the Republic of Kazakhstan of 20 November 2013; On the Ratification of the Agreement between the Republic of Kazakhstan and the Republic of Turkey on the Transfer of Convicted Persons of 4 July 2013: Law of the Republic of Kazakhstan of 20 November 2013; On the Ratification of the Protocol of 7 August 2007 Amending the Treaty between the Republic of Kazakhstan and the Republic of Azerbaijan on the Transfer of Persons Sentenced to Imprisonment for Further Service of Their Sentences of 10 June 1997: Law of the Republic of Kazakhstan of 26 December 2013; On the Ratification of the Treaty between the Republic of Kazakhstan and the Italian Republic on the Transfer of Convicted Persons of 8 November 2013: Law of the Republic of Kazakhstan of 4 December 2014; On the Ratification of the Treaty between the Republic of Kazakhstan and Hungary on the Transfer of Convicted Persons of 3 June 2014: Law of the Republic of Kazakhstan of 15 April 2015; On the Ratification of the Treaty between the Republic of Kazakhstan and Romania on the Transfer of Convicted Persons of 14 November 2014: Law of the Republic of Kazakhstan of 22 June 2015; On the Ratification of the Treaty between the Republic of Kazakhstan and the Republic of Serbia on the Transfer of Convicted Persons of 24 August 2016: Law of the Republic of Kazakhstan of 18 October 2017; On the Ratification of the Treaty between the Republic of Kazakhstan and Mongolia on the Transfer of Convicted Persons of 29 March 2018: Law of the Republic of Kazakhstan of 25 December 2019; On the Ratification of the Agreement between the Republic of Kazakhstan and the Hashemite Kingdom of Jordan on the Transfer of Convicted Persons of 1 November 2017: Law of the Republic of Kazakhstan of 5 March 2019; On the Ratification of the Treaty between the Republic of Kazakhstan and the Republic of Lithuania on the Transfer of Persons Sentenced to Imprisonment and Persons Subjected to Compulsory Medical Measures of 24 April 2017: Law of the Republic of Kazakhstan of 13 June 2019.

It should be noted that, within the framework of concluding bilateral treaties on legal assistance in criminal matters and other related issues, the Republic of Kazakhstan attaches great importance to concluding such treaties, first and foremost, with all countries of the Organisation for Economic Co-operation and Development (OECD), that is, an international economic organisation of developed countries that recognise the principles of representative democracy and a free-market economy.
It is objectively evident that all the above-mentioned treaties, since they are concluded exclusively between two states, one of which is the Republic of Kazakhstan, may differ from one another in their structure and content. This is apparent from our analysis of the treaties provided in the commentaries on Articles 1–4, as well as on the provisions of the articles of Section 12 of the CPC. Therefore, when working with them, particular care must be exercised in order to avoid weakening legal cooperation with the state that is a party to the relevant treaty, agreement or convention.
For example, the Treaty between the Republic of Kazakhstan and the United States of America on Mutual Legal Assistance in Criminal Matters contains a preamble, consists of 20 articles and appendices containing specimen forms of certain documents used by the Parties in the course of providing such assistance (it should be noted, incidentally, that such appendices are not characteristic of other international treaties on legal assistance in criminal matters). In general, the provisions of the Treaty regulate the following range of issues: the subject matter (scope of application) of the Treaty (Article 1); central authorities for sending and receiving requests (Article 2): the Prosecutor General's Office of the Republic of Kazakhstan, the Attorney General of the United States of America or a person designated by him; limitations on the provision of assistance (Article 3), or grounds for refusing assistance; the form and content of a request for assistance and related correspondence (Article 4); execution of a request for assistance (Article 5); expenses related to the execution of a request (Article 6); restrictions on the use of information or evidence obtained by the Parties in the course of providing assistance (Article 7); the content of specific types of legal assistance (Articles 8–16); compatibility of the Treaty with other international treaties (Article 17): the Treaty does not prevent the Parties from using other available mechanisms for providing mutual legal assistance; settlement of disputes through consultations (Article 18); amendments and additions to the Treaty by mutual written consent of the Parties (Article 19); ratification, entry into force and termination of the Treaty (Article 20): instruments of ratification are to be exchanged through diplomatic channels as soon as possible; the Treaty enters into force upon the exchange of instruments of ratification; termination of the Treaty is effected by sending written notification to the other Party through diplomatic channels.
Pursuant to paragraph 3 of Article 1 of the Treaty, legal assistance includes the following types: obtaining testimony or statements from persons; providing documents, materials and physical evidence and certifying their authenticity; locating or identifying persons and objects; serving documents; transferring persons held in custody for the purpose of giving testimony or providing other assistance in accordance with the Treaty; conducting searches and seizures; identifying, tracing, freezing, seizing and confiscating assets, and providing assistance in related proceedings; any other type of assistance not prohibited by the legislation of the Requested State. It follows that the types of legal assistance may be considerably broader.
A separate article is devoted to a group of provisions setting out the grounds on which the central authority of the Requested State may refuse to provide assistance if the request concerns a military offence that does not constitute an offence under ordinary criminal law; if execution of the request poses a threat to the sovereignty, security, public order or other essential interests of the Requested State; or if the request does not comply with the provisions of the Treaty (paragraphs 1–2 of Article 3).
As additional grounds, paragraph 3 of Article 3 of the Treaty also provides for situations in which the central authority of the Requested State may refuse to provide assistance if the offence on which the request is based is punishable in the Requesting State by imprisonment for a term of less than one year, or if the request concerns an offence that has not caused significant material damage and the central authority of the Requested State determines that the less serious nature of the offence does not justify the expenditure of resources required to execute the request.
The supremacy of the constitutional provisions of the Parties to the Treaty is addressed in paragraph 3 of Article 7 of the Treaty: notwithstanding the provisions of paragraphs 1 and 2 of Article 7, the use or disclosure of information in the course of criminal prosecution is permitted in cases where the Constitution of the Requesting State imposes an obligation to do so. The Requesting State shall notify the Requested State in advance of any such intended disclosure.
The provisions of paragraphs 1–2 of Article 11 of the Treaty permit the transfer of persons held in custody (from the Requested State to the Requesting State and from the Requesting State to the Requested State), subject to compliance with the following two conditions: the consent of the person concerned to such transfer, and the consent of the central authorities of both Parties, etc.
Sixth Group. Regional international instruments involving Kazakhstan also contribute to criminal procedure practice. They supplement and provide practical detail to the above-mentioned universal and other international human rights instruments: the Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 22 January 1993, ratified by Resolution of the Supreme Council of the Republic of Kazakhstan of 31 March 1993, and the Protocol thereto of 28 March 1997, ratified by Law of the Republic of Kazakhstan of 24 June 1999; the Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 7 October 2002, ratified by Law of the Republic of Kazakhstan of 10 March 2004; the Convention on the Transfer of Persons Sentenced to Imprisonment for Further Service of Their Sentences of 6 March 1998, ratified by Law of the Republic of Kazakhstan of 16 July 1999; the Treaty on the Procedure for the Stay and Interaction of Law Enforcement Officers in the Territories of the Member States of the Commonwealth of Independent States of 4 June 1999, ratified by Law of the Republic of Kazakhstan of 28 April 2000; the Treaty on Cooperation among the Member States of the Commonwealth of Independent States in Combating Terrorism of 4 June 1999, ratified by Law of the Republic of Kazakhstan of 23 October 2000; and a number of other declarations, agreements and treaties of the CIS states that are no less relevant to criminal proceedings in Kazakhstan: on international obligations in the field of human rights and fundamental freedoms (1993); on issues of combating economic crimes (1996); on issues of combating illegal migration (1998); on issues of combating and preventing offences in the field of intellectual property (1998); on issues of combating crime and the concept of cooperation in combating crime (1998, 1999); on issues concerning the procedure for the stay and interaction of law enforcement officers in the territories of the member states of the Commonwealth of Independent States (1999); and on issues of combating the illicit trafficking in narcotic drugs, psychotropic substances and precursors.
The practical relevance and high value of normative resolutions of the Supreme Court are confirmed by criminal judicial practice, in which their provisions are actively and widely applied, thereby ensuring the legality and validity of the criminal procedural activities of all bodies conducting criminal proceedings. The following normative resolutions adopted by the Supreme Court in different years on criminal procedure issues should be included among them: “On the Practice of Applying Legislation Regulating the Rights and Obligations of Persons Who Have Suffered from Crimes” of 24 April 1992 No. 2; “On the Practice of Applying Legislation on Compensation for Harm Caused by Unlawful Actions of Bodies Conducting Criminal Proceedings” of 9 July 1999 No. 7; “On Judicial Practice in the Application of Compulsory Medical Measures” of 9 July 1999 No. 8; “On Compliance with the Principle of Openness of Judicial Proceedings in Criminal Cases” of 6 December 2002 No. 25; “On the Practice of Applying Criminal Procedure Legislation Governing the Right to Defence” of 6 December 2002 No. 26; “On the Practice of Issuing Separate Rulings by Courts in Criminal Cases” of 9 December 2003 No. 11; “On the Practice of Hearing Criminal Cases on Appeal” of 19 December 2003 No. 13; “On Forensic Examination in Criminal Cases” of 26 November 2004 No. 16; “On the Consideration of Criminal Cases by Courts under the Simplified Procedure” of 26 November 2004 No. 17; “On the Consideration of Civil Claims in Criminal Proceedings” of 20 June 2005 No. 1; “On the Application of Criminal Procedure Law Provisions Concerning the Record of Court Proceedings” of 23 December 2005 No. 11; “On Certain Issues Concerning the Assessment of Evidence in Criminal Cases” of 20 April 2006 No. 4; “On Judicial Practice in Private Prosecution Cases” of 25 December 2006 No. 13; “On the Application of Criminal and Criminal Procedure Legislation Concerning Compliance with the Personal Liberty and Inviolability of Human Dignity, and Combating Torture, Violence and Other Cruel or Degrading Treatment or Punishment” of 28 December 2009 No. 7; “On Judicial Protection of Human and Civil Rights and Freedoms in Criminal Proceedings” of 25 June 2010 No. 4; “On the Consideration of Complaints against Actions (Inaction) and Decisions of the Prosecutor and Criminal Prosecution Authorities (Article 106 of the Criminal Procedure Code of the Republic of Kazakhstan)” of 27 June 2012 No. 3; “On the Practice of Applying Legislation Governing Proceedings in Criminal Cases Involving Juries” of 23 August 2012 No. 4; “On the Application in Criminal Proceedings of Certain Provisions of Legislation Governing the Protection of State Secrets” of 13 December 2013 No. 3; “On the Right of Access to Justice and the Powers of the Supreme Court of the Republic of Kazakhstan to Review Judicial Acts” of 15 January 2016 No. 1; “On the Practice of Hearing Criminal Cases by Courts in Conciliation Proceedings” of 7 July 2016 No. 4; “On Certain Issues Concerning the Application of the Principle of the Language of Judicial Proceedings” of 22 December 2016 No. 13; “On the Procedure for Proceedings in the Cassation Instance in Criminal Cases” of 29 June 2017 No. 5; “On Certain Issues Concerning the Application of Criminal Procedure Legislation to a Criminal Case Received by a Court” of 8 December 2017 No. 10; “On the Judicial Verdict” of 20 April 2018 No. 4; “On Certain Issues Concerning the Review of Judicial Acts in Criminal Cases Based on Newly Discovered Circumstances” of 29 June 2018 No. 9; “On the Recovery of Procedural Costs in Criminal Cases” of 29 June 2018 No. 10; “On the Consideration of Criminal Cases under Order Proceedings” of 29 November 2018 No. 17; “On Certain Issues Concerning the Authorization of Preventive Measures” of 24 January 2020 No. 1, etc.

Break long treaty lists into tablesAdd headings for the three treaty categories

Issues of criminal procedural law may also be interpreted in other normative resolutions of the Supreme Court, for example, those containing clarifications in the field of general and judicial law, on the application of provisions of criminal law and other branches of national law.
When analysing the methods of setting out the rules, provisions and institutions of criminal procedural law, attention should be paid to cases involving the application of rules from other branches of law in criminal proceedings for the proper resolution of a criminal case. In such situations, the body conducting criminal proceedings generally either relies on the rules of other branches of law when conducting criminal proceedings or refers the necessary materials for consideration of the relevant issues under civil or administrative proceedings. In the latter case, this is dictated by the specific nature of the subject matter regulated by the aforementioned branches of law and the legislator's intention to protect more fully the rights and legitimate interests of a particular participant in criminal proceedings, which is consistent with the requirements of the principle of legality.
This idea is clearly expressed in Articles 8 and 736 of the Administrative Offences Code of the Republic of Kazakhstan, according to which administrative offences and administrative legal measures imposed for their commission are determined exclusively by the Administrative Offences Code. No one may be subjected to an administrative penalty, administrative legal measures or measures to ensure proceedings in a case of an administrative offence otherwise than on the grounds and in accordance with the procedure established by this Code. The procedure for imposing administrative penalties by a court during the consideration of a criminal or civil case is determined by the provisions of the Administrative Offences Code and, accordingly, the Criminal Procedure Code and the Civil Procedure Code of the Republic of Kazakhstan.
Typical examples of the provision under consideration include issues relating to the examination of a civil claim jointly with a criminal case in which harm has been caused to the victim and compensation for such harm is necessary. When considering a civil claim brought in criminal proceedings, the grounds, conditions, scope and method of compensation for damage are determined in accordance with the provisions of civil, labour and other legislation. For these purposes, the body conducting criminal proceedings also applies the provisions of the Civil Procedure Code dated 31 October 2015, insofar as they do not contradict the provisions of the Criminal Procedure Code (Articles 166–173 of the Criminal Procedure Code).
The Criminal Procedure Code provides for cases in which the body conducting criminal proceedings is required to refer the resolution of a particular issue to civil or administrative proceedings. Such cases are provided for by the provisions of the Criminal Procedure Code. For example, a person who has not brought a civil claim in criminal proceedings, or who has withdrawn it after bringing it, as well as a person whose claim has been left without consideration by the court, is entitled to bring such a claim under civil proceedings. The claimant's application to withdraw a civil claim or to have it left without consideration is resolved by the court in accordance with the Criminal Procedure Code and the provisions of civil procedural legislation; a civil claim may be brought under civil proceedings against a person who is not subject to recognition as a suspect due to the existence of privileges or immunity from criminal prosecution; where it is impossible to make a detailed calculation of a civil claim without adjourning the criminal proceedings, the court may recognise the civil claimant's right to satisfaction of the claim and refer the issue of its amount for consideration under civil proceedings (Part 3 of Article 166, Part 8 of Article 167, Part 1 of Article 168, Part 3 of Article 170 of the Criminal Procedure Code).
Other examples. When terminating a criminal case, criminal prosecution authorities and courts are obliged, where there are indications in a person's actions of an administrative or disciplinary (corruption-related) offence, to send the materials within ten days to the competent authorities (officials) for the purpose of deciding whether to impose administrative or disciplinary liability (Paragraph 9 of Article 35 of the Criminal Procedure Code). At the same time, where a criminal case is terminated and the offender's actions contain indications of an administrative offence, the person may be held administratively liable no later than three months from the date of receipt of the decision to terminate the criminal case (Part 6 of Article 62 of the Administrative Offences Code).
An example of the direct application of the provisions of the Administrative Offences Code by a court is also appropriate. Thus, where there are sufficient grounds, the court issues a separate ruling in the deliberation room, drawing the attention of state authorities or officials, organisations or their managers to the facts of violations of the law established in the case, as well as to the causes and conditions that contributed to the commission of a criminal offence and require the adoption of appropriate measures. If an administrative misconduct that contributed to the commission of a criminal offence is established in a person's actions, the court is entitled to impose on that person the penalty prescribed by law (Part 1 of Article 405 of the Criminal Procedure Code). In this regard, establishing the fact that an administrative offence contributed to the commission of a criminal offence and that this became known during the investigation or judicial examination of the criminal case enables the court to impose an administrative penalty on the person responsible for such offence, provided that no more than one year has elapsed since the commission of the administrative offence (Part 4 of Article 62 of the Administrative Offences Code).
Conversely, proceedings in a case of an administrative offence are subject to termination in accordance with the procedure established by the Administrative Offences Code where circumstances precluding proceedings in a case of an administrative offence exist, as well as where the materials are transferred to the prosecutor or the pre-trial investigation body due to the presence of indications of an act punishable under criminal law (Subparagraphs 6 and 11 of Part 1 of Article 741, Article 742 of the Administrative Offences Code).
Note: In several places, the original text contains damaged or incomplete details of regulatory legal acts and references to articles. I have corrected obvious typographical errors but have not independently changed the substance of the legal provisions or verified the historical validity of the cited versions of the legislation.
Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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