Commentary on Article 10. Legality of the Criminal Procedure Code of the Republic of Kazakhstan
1. The court, prosecutor, investigator, body of inquiry and inquirer, when conducting criminal proceedings, are obliged to strictly comply with the requirements of the Constitution of the Republic of Kazakhstan, this Code, and other regulatory legal acts specified in Article 1 of this Code.
2. Courts shall not be entitled to apply laws and other regulatory legal acts that infringe upon the human and civil rights and freedoms enshrined in the Constitution of the Republic of Kazakhstan. If a court determines that a law or other regulatory legal act subject to application infringes upon the human and civil rights and freedoms enshrined in the Constitution of the Republic of Kazakhstan, it shall suspend the proceedings in the case and apply to the Constitutional Council of the Republic of Kazakhstan with a submission requesting that such act be declared unconstitutional.
3. Violation of the law by a court or criminal prosecution authorities in criminal proceedings is inadmissible and entails liability established by law, recognition of unlawful acts as invalid and their annulment.
4. In cases of conflict between the provisions of this Code, those provisions that are consistent with the principles of criminal procedure shall apply, and where the provisions contain no corresponding regulation, issues of judicial proceedings shall be resolved directly on the basis of the principles of criminal procedure.
1. The commentary to Article 1 of the CPC clearly demonstrates how extensive the legislative framework governing criminal procedure is, at the head of which stands the Constitution of the Republic of Kazakhstan. Therefore, it is particularly important for the bodies (officials) conducting criminal proceedings to monitor the periodic amendment of this legislation by the relevant state bodies of the Republic of Kazakhstan in order to eliminate and overcome its gaps.
As is known, gaps in criminal procedure legislation are eliminated by Parliament through the adoption of laws. Overcoming gaps in this branch of law, however, is the task of the Constitutional Council, the Supreme Court and the Prosecutor General, which must continuously, within the limits of their competence, conduct legal monitoring of the application of CPC provisions and fill its gaps by using the mechanisms of analogy of criminal procedure law and analogy of law.
Examples of analogy of criminal procedure law (performing an action or adopting a decision in proceedings on the basis of CPC provisions that are simultaneously designed for other institutions and provisions of the Code) include the direct instructions contained in the CPC stating that, during pre-trial investigation in cases where preliminary investigation is not mandatory, the inquirer shall be guided by the rules established by the CPC for preliminary investigation, with the exceptions provided for in Articles 190 and 191 of the CPC (Part 3 of Article 63); the accused shall be entitled to exercise the rights provided for in Part 9 of Article 64 of the CPC, which are established for a suspect (Part 5 of Article 65); a judgment of a court of first instance, an appellate judgment and an appellate ruling shall be subject to annulment under cassation proceedings in any event where violations of criminal procedure law specified in Part 3 of Article 436 of the CPC have occurred during the proceedings, meaning that, in such cases, the cassation instance uses the grounds for annulling or modifying a judgment that are applied by the appellate court in relation to judicial decisions of the court of first instance (Article 433, Part 9 of Article 494 of the CPC), and so forth.
Resolving problems arising in the field of criminal procedure on the basis of analogy of law opens up significant opportunities for ensuring the legality of law enforcement.
In other words, the body conducting criminal proceedings may objectively encounter situations in which the relevant provisions are completely absent both in the CPC and in other laws of the Republic of Kazakhstan. In such cases, the Constitutional Council and the Supreme Court come to the assistance. Many of their decisions, as we have already noted above, contain examples explaining how particular situations of this kind in the field of criminal procedure may be resolved through the direct application of the principles of justice reflected in the provisions of the Constitution.
2. The principle of legality, as follows from its very name, means applying all provisions of the CPC during proceedings in strict accordance with their direct purpose (see the commentary to Articles 1–7 of the CPC). As a “cell” of the CPC, its provision possesses a set of interconnected elements which, taken together, ensure the legality and validity of the entire proceedings, the procedural decisions adopted and the procedural actions performed. There are three such elements: the hypothesis, that is, the condition for applying a CPC provision; the disposition, that is, the procedure for applying a CPC provision when the hypothesis exists (the process of exercising the rights and obligations of the parties to criminal proceedings); and the sanction, that is, the consequences that may arise from applying the prescriptions contained in the hypothesis and disposition of a CPC provision.
Let us explain the foregoing with the following examples. Thus, the conditions (hypothesis) for applying the provisions governing a particular preventive measure are the grounds and circumstances taken into account when selecting it, as specified in Articles 136 and 138 of the CPC. The procedure itself, which includes the legal capacity of the relevant participants in the selection of a preventive measure, as well as the sequence and procedure for its application, constitutes the disposition of the relevant CPC provisions. The sanction may be expressed, in relation to the perpetrator of a crime, in the application of a stricter preventive measure or the conversion of bail into state revenue; in relation to the pre-trial investigation body, in the prosecutor's annulment of its unlawful decisions on the application of a preventive measure; and, in relation to persons connected with certain preventive measures due to their failure to fulfil the obligations they have undertaken, in the imposition of a monetary penalty by an investigating judge or court. The conditions (hypothesis) for the mandatory participation of defence counsel are the cases specified in Part 1 of Article 67 of the CPC. The powers of defence counsel and the forms of their procedural activity in criminal proceedings constitute the content of the disposition of the relevant CPC provisions. The sanction may consist of removing defence counsel from participation in criminal proceedings on the grounds specified in Article 94 of the CPC. Another example is confrontation. The condition (hypothesis) for conducting this investigative action is that it may be conducted only between two previously questioned persons if there are substantial contradictions in their testimony. The procedure for conducting it, that is, the legal capacity of its participants and the recording of the course and results of the confrontation, constitutes its disposition. Violation of the conditions and disposition governing confrontation entails the prosecutor or court recognising the confrontation record as having no force as a source of evidence in the case (sanction), and so forth.
3. A court is a participant in constitutional proceedings (Article 78 of the Constitution, Articles 20 and 22 of the Constitutional Law “On the Constitutional Council of the Republic of Kazakhstan”). The requirement of the principle of legality that a court may not apply, during proceedings, laws and other regulatory legal acts that infringe upon the rights and freedoms of individuals and citizens enshrined in the Constitution is addressed exclusively to the court. In such a case, the court is obliged to suspend the proceedings at any stage of the consideration of the case and apply to the Constitutional Council with a submission requesting that the law or other regulatory legal act subject to application in the given criminal case be declared unconstitutional (Part 2 of Article 45 of the CPC). An application by a court to the Constitutional Council in the form of a submission shall be signed by the chairperson of the relevant court (Clause 3 of Article 22 of the Constitutional Law “On the Constitutional Council of the Republic of Kazakhstan”, Subparagraph 7) of Paragraph 1 of Article 9, Subparagraph “p” of Article 14, Subparagraph 9) of Paragraph 2 of Article 20 of the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan”). The need for courts to strictly comply with the form and content of applications to the Constitutional Council is emphasised in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated May 14, 1998, “On Certain Issues Concerning the Application of Legislation on Judicial Power in the Republic of Kazakhstan” (Paragraph 2).
Violation of the provisions of criminal procedure law by bodies conducting criminal proceedings is inadmissible. Depending on the nature of the violation of the law, officials of criminal prosecution authorities, as well as judges, may be subject to disciplinary or criminal liability. Grounds for imposing liability may include separate court rulings issued when the court discovers violations of citizens' rights and other violations of the law committed during pre-trial investigation (Article 184, Part 2 of Article 405 of the CPC), submissions (resolutions) issued by the prosecutor during pre-trial criminal proceedings, and decisions of the Judicial Jury (Subparagraph 10) of Part 1 of Article 193 of the CPC, Article 20, Subparagraph 1) of Paragraph 1 of Article 27, Article 28 of the Law of the Republic of Kazakhstan “On the Prosecutor's Office”, Articles 34, 39 and 44 of the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan”, “On Approval of the Regulations Provided for by the Constitutional Law of the Republic of Kazakhstan ‘On the Judicial System and Status of Judges of the Republic of Kazakhstan’”: Decree of the President of the Republic of Kazakhstan dated June 26, 2001, and so forth).
From the perspective of Part 4 of Article 10 of the CPC, a conflict of laws is a divergence, inconsistency or clash between the relevant provisions of the CPC, in other words, it concerns the selection of one or another conflicting provision when regulating a specific criminal procedural relationship. As a rule, various reasons may underlie conflicts between CPC provisions. The provision of Part 4 determines the ways of overcoming conflicts between CPC provisions. This is a specific criminal procedural situation that must, in any event, be resolved on the basis of the principles and substance of criminal procedure. Let us explain this with an example.
Thus, Article 484 of the CPC permits the review, under cassation proceedings, of judicial acts of lower courts that have entered into legal force, upon applications by participants in criminal proceedings, only after those acts have been considered by the appellate instance. At the same time, it excludes prosecutors' protests from this procedure, that is, it provides for the possibility of considering them under cassation proceedings without passing through the appellate instance, as indicated by the wording of the provision in Part 1 of Article 484: “The Supreme Court shall consider cases under cassation proceedings on applications concerning judgments and rulings of courts of first instance that have entered into legal force, after their consideration by the appellate instance, on prosecutors' protests, as well as on judgments and rulings of the appellate instance.” There is an evident legal conflict between the provision of Part 1 of Article 484 of the CPC and the provisions of Article 23 of the CPC, which regulate the principle of conducting judicial proceedings on the basis of adversarial proceedings and equality of the parties, or an example of an inconsistent provision. Based on the requirements of Part 4 of Article 10 of the CPC, when resolving a legal conflict, it is necessary to use the direct prescriptions of such a principle of criminal procedure as conducting judicial proceedings on the basis of adversarial proceedings and equality of the parties (Article 23 of the CPC). Part 7 of Article 23 of the CPC expressly establishes: “The parties participating in criminal proceedings shall be equal, that is, in accordance with the Constitution of the Republic of Kazakhstan and this Code, they shall be vested with equal opportunities to defend their positions. The court shall base its procedural decision only on evidence in the examination of which each party was ensured the opportunity to participate on equal terms.” Thus, a prosecutor's protest, with the exceptions specified in Subparagraph 1) of Part 3 of Article 484 of the CPC, should logically first be submitted to and considered by the appellate court in the form of an application by the prosecutor before being submitted to the court of cassation. This will make it possible to comply with the rules governing the hierarchy of judicial instances and subsequently enable the court of cassation to perform its function effectively.
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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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