Commentary on Article 111. The Concept of Evidence of the Criminal Procedure Code of the Republic of Kazakhstan
1. Evidence in a criminal case shall mean legally obtained factual data on the basis of which the body of inquiry, the inquirer, the investigator, the prosecutor, and the court, in the manner prescribed by this Code, establish the existence or absence of an act provided for by the Criminal Code of the Republic of Kazakhstan, whether or not such act was committed by the suspect, accused, or defendant, their guilt or innocence, as well as other circumstances relevant to the proper resolution of the case.
2. Factual data relevant to the proper resolution of a criminal case shall be established by: testimony of the suspect, accused, victim, witness, witness entitled to the right to defence, expert, and specialist; the conclusions of an expert and a specialist; physical evidence; records of procedural actions and other documents.
The movement (transfer) of a criminal case from one stage of criminal proceedings to another, from one phase to another within the stages, the adoption of procedural decisions in the case, and the conduct of procedural, investigative, and judicial actions are possible only on the basis of evidence (facts and arguments) obtained in the process of proving the circumstances of the committed criminal offence, primarily through investigative and judicial actions (Part 1 of Article 111 of the CPC).
For example, where there is sufficient evidence providing grounds for declaring suspicion of the commission of a criminal offence, the investigator shall issue a reasoned resolution on the legal classification of the suspect's act (Part 1 of Article 203 of the CPC). Alternatively, having determined that all investigative actions in the case have been completed and that the evidence collected is sufficient to prepare an indictment, the investigator shall be obliged to notify the suspect thereof, explain their right to examine all the materials of the case both personally and with the assistance of defence counsel, as well as their right to submit motions for supplementing the pre-trial investigation or adopting other decisions in the case (Part 1 of Article 294 of the CPC). Finally, during the court hearing, all evidence in the case shall be subject to direct examination. The court must hear the testimony of the defendant, the victim, and witnesses; announce and examine expert opinions; inspect physical evidence; announce records and other documents; and perform other judicial actions aimed at examining evidence (Part 1 of Article 331 of the CPC). A conviction may not be based on assumptions and shall be delivered only on the condition that, during the trial, the defendant's guilt in committing a criminal offence has been confirmed by the totality of the evidence examined by the court (Part 3 of Article 393 of the CPC).
The provisions of Part 1 of Article 111 of the CPC emphasise the legality of obtaining evidence in a case, that is, its collection on the basis of and in accordance with the procedure regulated by the provisions of the CPC. The legality of obtaining evidence (factual data) is inconceivable without compliance, during proceedings in the case, with all the principles of criminal procedure and the general conditions of pre-trial investigation and the main court proceedings, which constitute the most important guarantees of the quality of the evidence collected. Practically every principle of criminal procedure and the general conditions of the above-mentioned stages of the process serve the purpose of proving circumstances relevant to the lawful, well-founded, and fair resolution of the case (see the commentary on the provisions of Chapter Two of the CPC). The provisions of the CPC also specifically regulate the conditions, grounds, sequence of conduct, and procedure for documenting interrogations, confrontations, inspections, exhumations, examinations, and other investigative and judicial actions. Any deviation from these rules entails the recognition of the factual data obtained through such actions as inadmissible evidence.
3. The process of proving during proceedings in a case (the collection, examination, assessment, and use of evidence) is aimed at establishing the existence or absence of an act provided for by the Criminal Code, as well as other circumstances relevant to the proper resolution of the case. This is the essence and purpose of collecting evidence in a case. In other words, evidence must serve a purpose: it must confirm or refute something. In short, there must be a direct and close connection between the evidence being collected and the circumstances subject to proof in a criminal case, as established by Article 113 of the CPC.
4. The provisions of Part 2 of Article 111 of the CPC establish the range of sources of evidentiary information, that is, the initial forms in which such information is obtained. These undoubtedly include testimony given by living persons (suspects, accused persons, victims, witnesses, witnesses entitled to the right to defence, experts, specialists, civil claimants, and civil defendants); an expert's opinion and a specialist's opinion are regarded as independent special sources; physical evidence is identified separately (traces of criminal activity, which may exist in a wide variety of forms and conditions); records of procedural actions, including investigative or judicial actions, are provided for (this is a large group of sources, for example, records of inspections, exhumation of a corpse, examinations, identification parades, investigative experiments, interrogations, court rulings, records of court hearings, separate rulings, submissions, etc.); so-called other documents are defined quite broadly (for example, all materials submitted by participants in criminal proceedings or obtained upon requests made by bodies conducting criminal proceedings, all materials (grounds) for commencing a pre-trial investigation, etc.).
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 Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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