Commentary on Article 11. Administration of Justice Exclusively by the Court of the Criminal Procedure Code of the Republic of Kazakhstan
1. Justice in criminal cases in the Republic of Kazakhstan shall be administered exclusively by the court. The usurpation of judicial powers by any person shall entail criminal liability as provided for by law.
2. No person may be found guilty of committing a criminal offense or subjected to criminal punishment except pursuant to a court judgment and in accordance with the law.
3. The jurisdiction of the court, the limits of its jurisdiction, and the procedure for its administration of criminal proceedings shall be determined by law and may not be arbitrarily changed. The establishment of extraordinary or special courts under any name whatsoever for the consideration of criminal cases shall not be permitted. Judgments and other decisions of extraordinary courts, as well as of other unlawfully established courts, shall have no legal force and shall not be subject to enforcement.
4. A judgment and other decisions of a court that conducted criminal proceedings in a case outside its jurisdiction, exceeded its powers, or otherwise violated the principles of criminal procedure provided for by this Code shall be unlawful and subject to reversal.
5. A judgment and other decisions of a court in a criminal case may be reviewed and reconsidered only by the respective courts in accordance with the procedure provided for by this Code.
Every person has the right to effective restoration of their rights by competent national courts in cases where their fundamental rights granted by the Constitution or by law have been violated, as established by Article 8 of the Universal Declaration of Human Rights of December 10, 1948. This provision is reproduced in the Constitution of the Republic of Kazakhstan. Paragraph 1 of Article 75 of the Constitution of the Republic of Kazakhstan, which establishes that “Justice in the Republic of Kazakhstan shall be administered exclusively by the court,” means that the authority to administer justice is vested exclusively in the Supreme Court, local courts, and other courts of the Republic of Kazakhstan forming part of the unified judicial system of the Republic of Kazakhstan established by the Constitution and the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan.” This constitutional principle of criminal procedure is directed against the usurpation of judicial functions by bodies and officials other than the court, as well as against the establishment of special and extraordinary courts under any name whatsoever. The function of administering justice or deciding a criminal case on its merits is performed by the court and exclusively during the main court hearing, to which all preceding criminal procedural activities of criminal prosecution authorities conducted before the court, outside the court, and for the court are subordinated. It may be presumed that these considerations were precisely what motivated the inclusion in the Constitution of a separate Section 7 containing the most fundamental provisions concerning the court and justice, as well as the role and purpose of judicial power in the state. These matters are described in greater detail in the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan.”
Paragraph 4 of Article 75 of the Constitution of the Republic of Kazakhstan, according to which the judicial system of the Republic is established by the Constitution and a constitutional law, corresponds to the provision of subparagraph 1) of paragraph 3 of Article 77 of the Constitution, according to which a person shall be considered innocent of committing a crime until their guilt has been established by a court judgment that has entered into legal force. In essence, the constitutional provision continues to reproduce similar provisions contained in universal international human rights instruments, which should be cited. “Everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence,” — this idea is expressed in greater detail in paragraph 1 of Article 11 of the Universal Declaration of Human Rights of December 10, 1948. Confirming the inviolability of this principle of justice, Article 14 of the International Covenant on Civil and Political Rights of December 16, 1966, simultaneously establishes a set of minimum guarantees implemented on the basis of full equality of the parties and ensuring the legality and validity of the consideration of any criminal charge brought against a person in accordance with the law: “a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; c) To be tried without undue delay; d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; g) Not to be compelled to testify against himself or to confess guilt,” and so forth.
- The constitutional provision prohibiting the establishment of special and extraordinary courts under any name whatsoever (paragraph 4 of Article 75 of the Constitution) means a prohibition on establishing courts characterized by the following features: their structure, jurisdiction, and procedure for establishment are regulated by special regulatory legal acts rather than by the Constitution and a constitutional law; they administer justice with deviations from the judicial procedure established by law for other courts, thereby creating conditions for the infringement of the constitutional rights and freedoms of individuals and citizens; and, in their establishment and operation, they fail to observe the principle of separation of state power into legislative, executive, and judicial branches provided for in paragraph 4 of Article 3 of the Constitution, which is expressed in the organizational subordination or dependence of special courts on bodies of the executive branch of government. In a generalized form, the concept of “special court” contained in paragraph 4 of Article 75 of the Constitution is used to designate courts possessing at least one of these characteristics (Regulatory Resolution of the Constitutional Council No. 1 of April 14, 2006, paragraph 1, operative part).
The essence of the administration of justice in criminal cases exclusively by the court is primarily embodied in the powers of the court. Under the provisions of the Criminal Procedure Code, only the court is authorized to: find a person guilty of committing a criminal offense and impose punishment on that person; apply compulsory medical measures or compulsory educational measures to a person; reverse or amend a decision adopted by a lower court; consider complaints against decisions and actions of the criminal prosecution authority and the prosecutor; consider matters concerning the authorization of certain procedural actions at the pre-trial stages of criminal proceedings; and issue separate rulings aimed at eliminating circumstances that contributed to the commission of a criminal offense, violations of the rights and freedoms of citizens, as well as other violations of the law committed during the investigation (Articles 11, 51, 53, 55, and 405 of the Criminal Procedure Code).
The body of inquiry, the investigator, and the prosecutor are not entitled to replace judicial bodies or perform judicial functions in the course of their procedural activities. They are entrusted with the tasks of preventing criminal offenses, impartially, promptly, and fully detecting and investigating them, establishing the grounds for criminal liability, and bringing the accused before the court. These tasks are served by the institutions, rules, and provisions of the Criminal Procedure Code regulating the time limits and forms of pre-trial investigation, as well as the process of proving the circumstances of the committed criminal offense in court. Evidence collected by criminal prosecution authorities becomes evidence only in court and only as a result of its renewed examination during the judicial investigation. In this regard, the Criminal Procedure Code expressly provides that all evidence submitted by criminal prosecution authorities must be directly examined during the court proceedings. A judgment may be based only on evidence submitted to the court by the parties and examined by it during the court hearing (Article 388 of the Criminal Procedure Code).
The administration of justice by the proper court is ensured by the strict delineation of the jurisdiction of criminal cases among courts of first instance, appellate courts, and cassation courts (Articles 306–313 of the Criminal Procedure Code). The institution of jurisdiction over criminal cases primarily ensures the stability of judgments and court rulings in criminal cases and also allows for their review (reversal or amendment) by higher courts in the interests of legality on a limited range of grounds. “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law,” as established in paragraph 5 of Article 14 of the International Covenant on Civil and Political Rights of December 16, 1966. The Criminal Procedure Code grants the right to review a criminal case to appellate and cassation courts, while requiring the parties to consistently use their respective powers when potentially appealing or challenging the adopted judicial decisions (Articles 414–416, paragraph 1 of Article 484 of the Criminal Procedure Code). For example, pursuant to paragraph 3 of Article 436 of the Criminal Procedure Code, a judgment or ruling shall in any event be subject to reversal by the appellate court if: 1) the criminal case was not terminated by the court despite the existence of grounds provided for in Article 35 of the Criminal Procedure Code; 2) the judgment was rendered by an unlawfully constituted court; 3) the case was considered in the absence of the defendant, except in the cases provided for in paragraph 2 of Article 335 of the Criminal Procedure Code; 4) the case was considered by the court without the participation of defense counsel or the representative of the victim where their participation is mandatory under the law, or the defendant’s right to defense was otherwise violated; 5) the defendant’s or the victim’s right to use their native language or a language they understand, or the services of an interpreter, was violated in court; 6) the defendant was not granted the right to participate in the closing arguments, except in cases where such arguments were not held in accordance with the requirements of the Criminal Procedure Code; 7) the defendant was not granted the right to make a final statement, except in cases where making such a statement is not provided for under the requirements of the Criminal Procedure Code; 8) the secrecy of the deliberations when rendering the judgment was violated; 9) the judgment was not signed by the judge.
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan, 2020 edition. Author: Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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