Commentary on Article 112. Factual Data Inadmissible as Evidence of the Criminal Procedure Code of the Republic of Kazakhstan

1. Factual data shall be recognized as inadmissible as evidence if it was obtained in violation of the requirements of this Code, which, through the deprivation or restriction of the rights of participants in the proceedings guaranteed by law, or through the violation of other rules of criminal procedure during pre-trial investigation or judicial proceedings, affected or could have affected the reliability of the factual data obtained, including where such data was obtained:

1) through the use of torture, violence, threats, deception, as well as other unlawful acts and cruel treatment;

2) through the exploitation of a person's misconception regarding their rights and obligations as a participant in criminal proceedings, arising from the failure to explain, incomplete explanation, or incorrect explanation of such rights and obligations;

3) in connection with the conduct of a procedural action by a person who is not authorized to conduct proceedings in the relevant criminal case;

4) in connection with the participation in a procedural action of a person who is subject to disqualification;

5) through a substantial violation of the procedure for conducting a procedural action;

6) from an unknown source or from a source that cannot be established during the court hearing;

7) through the use, in the course of proving, of methods that contradict modern scientific knowledge.

2. The inadmissibility of using factual data as evidence, as well as the possibility of its limited use in criminal proceedings, shall be determined by the body of inquiry, the inquiry officer, the investigator, the prosecutor, or the court, on their own initiative or upon a motion of a party. When deciding the issue of the inadmissibility of evidence, the body of inquiry, the inquiry officer, the investigator, the prosecutor, or the judge shall be obliged in each case to establish precisely what the violation committed consisted of and to adopt a reasoned decision.

3. Testimony of a suspect, victim, or witness, an expert's or specialist's opinion, physical evidence, records of investigative and judicial actions, and other documents shall not be used as the basis for an accusation if they have not been included in the inventory of the materials of the criminal case. Testimony given by a suspect during preliminary questioning in the capacity of a witness may not be recognized as evidence and used against their spouse or close relatives, nor may it be used as the basis for the accusation against the suspect.

4. Factual data obtained in violation of criminal procedure law shall be recognized as inadmissible as evidence and may not be used as the basis for an accusation or in proving any of the circumstances specified in Article 113 of this Code.

5. Factual data obtained through violations specified in Part One of this Article may be used as evidence of the fact of the relevant violations and of the guilt of the persons who committed them during the investigation of the criminal case.

The provisions of Article 112 regulate the quality of evidence collected in criminal cases as the most important condition for its use in proving the circumstances of the criminal offense committed in the case. The legislator interprets the recognition of evidence as inadmissible quite broadly, linking its acquisition to violations of the requirements of the CPC which, through the deprivation or restriction of the rights of participants in the proceedings guaranteed by law, or through the violation of other rules of criminal procedure during the proceedings, affected or could have affected the reliability of the evidence obtained, that is, its correspondence to reality. References to the general grounds for recognizing factual data as inadmissible evidence are contained in legislation defining the procedure for criminal proceedings, that is, in sources of criminal procedure law (see the commentary on Article 1 of the CPC). Attaching such great importance to the quality of evidence in a case, its admissibility and reliability, Parts 4–5 of Article 112 of the CPC establish two fundamental rules: factual data obtained in violation of criminal procedure law shall be recognized as inadmissible evidence and may not be used as the basis for an accusation or in proving any of the circumstances specified in Article 113 of the CPC (Part 4); factual data obtained through violations specified in Part 1 of Article 112 of the CPC may be used as evidence of the fact of the relevant violations and of the guilt of the persons who committed them during the investigation of the criminal case (Part 5).

Moreover, pursuant to the Law of the Republic of Kazakhstan dated January 6, 2011, “On Law Enforcement Service,” the head of a territorial law enforcement body shall be subject to dismissal in the following cases: concealing criminal offenses from registration; the commission by a subordinate employee of a crime involving a gross violation of the constitutional rights of citizens provided for in Section II of the Constitution of the Republic of Kazakhstan, established by judicial acts that have entered into legal force or by decisions of criminal prosecution authorities to terminate a criminal case on the basis of subparagraphs 3), 4), 9), 10), 11) and 12) of Part 1 of Article 35 or Article 36 of the CPC of the Republic of Kazakhstan; systematic disciplinary misconduct involving violations of the constitutional rights of citizens provided for in the above-mentioned Section of the Constitution of the Republic of Kazakhstan (subparagraph 12-1) of paragraph 1 of Article 80).

Alongside the general rules for recognizing factual data as inadmissible evidence (Part 1 of Article 112 of the CPC), the CPC identifies qualified grounds for recognizing evidence as defective, void, and devoid of legal force. Independently or in conjunction with the general and other grounds belonging to this group, they result in the unconditional exclusion of such evidence from the case if factual data was obtained from sources not specified in the CPC and without compliance with all the requirements of procedural form.

Thus, investigative actions, which must be carried out in strict accordance with the provisions of the CPC, form the basis of the evidentiary process during pre-trial investigation. During investigative actions and the investigation as a whole, it is impermissible to obtain evidence through the use of various unlawful methods of conducting inquiry and investigation. Therefore, attaching importance to this circumstance, the law specifically identifies, first and foremost, the inadmissibility of obtaining factual data through the use of torture, violence, threats, deception, as well as other unlawful acts and cruel treatment (subparagraph 1) of Part 1 of Article 112 of the CPC).

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of December 10, 1984, defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from that person or a third person information or a confession, punishing that person for an act that they or a third person has committed or is suspected of having committed, or intimidating or coercing that person or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or another person acting in an official capacity. This definition does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions (Article 1). For example, unlawful methods of investigation and the existence of indications of the use of torture or other forms of ill-treatment against participants in the proceedings may also be evidenced, in addition to the physical and mental suffering inflicted on the person subjected to torture in various forms, by facts demonstrating the failure of an inquiry officer or investigator to comply with procedural standards. These include failure to inform detained persons and persons held in custody of their rights; the use of unofficial places of pre-trial detention and interrogation for investigative purposes; and deprivation of the person under investigation of any communication with the outside world, their family, defense counsel, interpreters, or independent doctors.

The substantial harm caused to the inalienable human rights and freedoms as a result of torture gives rise to an urgent need for the national legal system to develop a special legislative procedure that would make it possible to conduct prompt and impartial investigations into criminal cases involving the use of torture during criminal proceedings within the shortest possible time.

The basis for such a procedure may be the fundamental international standards in the field of investigation of criminal cases involving torture, set out in the 2000 Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol). In particular, it defines the objectives and principles of effective investigation and documentation of torture and regulates the general conditions of the investigation procedure (the appropriate investigative authority, the procedure for interviewing witnesses, locating and obtaining physical evidence, etc.). These principles are the result of three years of analytical, research, and editorial work involving more than 75 experts in the fields of law, medicine, and human rights, representing 40 organizations and institutions from 15 countries around the world (The Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment were included as an annex to United Nations General Assembly Resolution 55/89 of December 4, 2000, and Commission on Human Rights Resolution 2000/43 of April 20, 2000, both of which were adopted without a vote).

The Prosecutor General's Office of the Republic of Kazakhstan attaches great importance to combating torture in criminal proceedings. In cooperation with other law enforcement agencies of the Republic of Kazakhstan, it has implemented a number of systemic measures to improve the effectiveness of this work within the law enforcement environment (relevant orders have been issued, training seminars have been conducted, and methodological recommendations have been developed). In particular, the methodological recommendations of the Department of Special Prosecutors of the Prosecutor General's Office of the Republic of Kazakhstan entitled “Specific Features of Conducting Inspections and Preliminary Investigations in Torture Cases” (Astana, 2013), as well as the “Methodological Recommendations for the Investigation of Criminal Cases Involving Torture Based on the Standards of the Istanbul Protocol” of the Law Enforcement Academy under the Prosecutor General's Office of the Republic of Kazakhstan (Astana, 2017), are useful in investigative work involving the investigation of torture.

In the context of the above, the attention of prosecutors and judges should also be directed toward determining whether inquiry officers and investigators have complied with procedural safeguards for particularly vulnerable categories of persons (women, minors, persons with mental disorders, elderly persons, ethnic minorities, foreigners, stateless persons, sick persons, persons with a different sexual orientation, and convicted persons of all categories).

Factual data shall be inadmissible as evidence if it was obtained through the use of violence, which may be either physical or psychological: beatings, abuse, conducting investigative actions at night, prolonged failure to summon a person held in custody for questioning, exerting physical and psychological pressure in order to compel compliance during official questioning in the periods before, during, and after the questioning procedure, and disseminating information that may harm the rights and interests of a participant in the proceedings and their relatives.

Threats (intimidation) are also considered unlawful acts, including threats to bring a person or their close relatives to criminal liability, to detain or take them into custody, to use physical violence, etc.

The use of deception (misleading a person) is expressed in providing a person with false information, concealing their actual procedural status in the case, promising not to initiate an investigation or to terminate a criminal case, to release them from custody, not to disturb their relatives, not to notify their place of employment or educational institution about the criminal offense committed, etc.

Other unlawful acts include bribery, blackmail, falsification of evidence, the use of hypnosis, incitement to and exploitation of base instincts, national, racial, or religious hatred, etc.

The provision of subparagraph 2) of Part 1 of Article 112 of the CPC is aimed at preventing cases in which the rights and obligations of a participant in the proceedings are not explained, are incompletely explained, or are explained incorrectly, which may also serve as a condition for obtaining factual data inadmissible as evidence. In this regard, the CPC provides for a general rule obliging the bodies conducting criminal proceedings, at all stages of the criminal process, not only to explain rights and obligations but also to ensure that participants in the proceedings have the opportunity to exercise them (see the commentary on the provisions of Article 110 of the CPC). Consequently, before the commencement of a procedural action involving a participant in the proceedings, it is necessary to explain not only the general meaning of the rights granted to that person but also to disclose their specific content and the procedure for exercising them in a detailed and understandable manner. At the same time, the rights and obligations of a participant in the proceedings must be explained whenever their legal status in the case changes as the criminal case progresses through the relevant stages of criminal proceedings. In this regard, inquiry officers and investigators commit serious deviations from the requirements of Article 110 of the CPC, while courts fail to exercise their powers to exclude factual data (evidence) obtained under such circumstances. The disregard by the bodies conducting criminal proceedings of this ground, and their failure to establish how the rights and obligations of participants in the proceedings were explained at previous stages of criminal proceedings, even by simply questioning the participants during the judicial stages, significantly narrows the scope for protecting the rights of participants in the proceedings and does not contribute to the proper resolution of the criminal case.

Attorneys also deserve serious criticism in this regard, as they fail to use the time allocated to them under the CPC to provide the persons they defend or represent with a clear and thorough explanation of their rights and obligations. All this often results in conflicts between attorneys and the persons they defend or represent and does not contribute to public confidence in the institution of legal practice in criminal proceedings.

The provision of subparagraph 3) of Part 1 of Article 112 of the CPC applies equally to the actions of officials conducting criminal proceedings and to the actions of other persons who have no authority whatsoever to conduct procedural actions. For example, this includes the conduct of procedural actions by a judge, prosecutor, investigator, or inquiry officer where circumstances (conditions or grounds) exist that require their disqualification from the case. Factual data is also inadmissible as evidence if it was obtained through the conduct of procedural actions by representatives of civil society acting on the instructions of an inquiry officer or investigator. In all the above cases, the role and purpose of a particular person in criminal proceedings are distorted, resulting in a high degree of presumption that the evidence obtained by such persons is defective. Within the framework of this ground, when preparing a case for hearing, it should be important for the judge, alongside determining whether the case falls within the jurisdiction of that court (paragraph 1 of Article 320 of the CPC), to examine whether the criminal case was within the investigative jurisdiction of the pre-trial investigation body from which it was received by the court through the prosecutor. Judges, as a rule, do not examine these issues in depth, although cases of incorrect determination of investigative jurisdiction are frequent in criminal investigations, particularly in consolidated cases. If there is no written instruction from the prosecutor to accept such a case for proceedings by a pre-trial investigation body that does not have investigative jurisdiction over it, this constitutes an obvious violation of the requirements of subparagraph 3) of Part 1 of Article 112 of the CPC and the law on investigative jurisdiction over criminal cases (Articles 187 and 191 of the CPC). Unlike the preceding provision, the provision of subparagraph 4) of Part 1 of Article 112 of the CPC concerns all other participants in the proceedings (apart from officials of the bodies conducting criminal proceedings) who, on the grounds specified by law, may not participate in procedural actions (see the commentary on the provisions of the Articles of Chapter 11, “Circumstances Precluding Participation in Criminal Proceedings. Challenges and Disqualifications”). Such participation violates the principles of criminal proceedings and their objectivity, which also affects the quality of evidence and its subsequent fate in the given case.

The provision of subparagraph 5) of Part 1 of Article 112 of the CPC regulates the most widespread violation: deviations by officials of the bodies conducting criminal proceedings from the procedure for conducting procedural actions, including investigative and judicial actions. The fact is that every procedural action has its own objectives, tasks, grounds, beginning and end, circle of participants, a specific sequence of conduct, and a procedure for documenting the fact, course, and results of its conduct. In other words, what is important in this case is strict compliance with the provisions of the CPC regulating the conditions, grounds, sequence of implementation, and procedure for documenting specific procedural actions, including investigative and judicial actions, in the case. For example, Article 197 of the CPC regulates the general rules for conducting investigative actions. Or, for instance, Article 341 of the CPC establishes the rules governing procedural actions by a judge related to the adjournment or suspension of a criminal case during the main court hearing.

This circumstance is also pointed out by the Supreme Court in its Regulatory Resolution No. 4 of April 20, 2006, “On Certain Issues of the Assessment of Evidence in Criminal Cases” (paragraph 18). In particular, courts should bear in mind that records of investigative actions are drawn up after the commencement of pre-trial investigation of a criminal case and within the procedural time limits established by law for conducting an inquiry or preliminary investigation. Factual data obtained before the registration of an application or report concerning a criminal offense in the Unified Register of Pre-Trial Investigations may not be recognized as admissible evidence. Factual data obtained after the expiration of the period for inquiry or preliminary investigation, during a period when the time limits for proceedings in the case have been interrupted without their renewal, during the period when the suspect is being familiarized with the case materials, while the case is held by the prosecutor together with the indictment, etc., shall be recognized as inadmissible evidence.

Examples of the provision of subparagraph 6) of Part 1 of Article 112 of the CPC include cases where witnesses and victims give testimony without indicating the source of their knowledge (Parts 4 and 5 of Article 115 of the CPC). Such testimony does not constitute evidence in the case. Another example is the absence of a proper ground and, consequently, the absence of grounds for initiating a pre-trial investigation based on an anonymous report (Part 6 of Article 181 of the CPC). It is also impossible during a court hearing to establish the sources of materials obtained through operational-search activities and attached to the criminal case if this was not done during the pre-trial investigation in compliance with the requirements for their incorporation into the criminal case (Articles 238–239 of the CPC).

The provision of subparagraph 7) of Part 1 of Article 112 of the CPC excludes the use, in the course of proving, of methods that contradict modern scientific knowledge. The CPC permits the use of scientific and technical means in the process of proving and recognizes them as admissible if they are expressly provided for by law or do not contradict its provisions and principles; are scientifically sound; ensure the effectiveness of proceedings in the case; and are safe (Article 126 of the CPC). Conversely, factual data shall be inadmissible as evidence if the means used to obtain it were techniques and methods of pseudosciences, for example, physiognomy — the doctrine of determining a person's character by the features of their face and body shape; phrenology — the doctrine of the relationship between the shape of the skull and a person's mental characteristics, temperament, and psychological type; palmistry — fortune-telling based on the lines and mounts of the palms; optography — the doctrine that the image of a murderer's appearance can be preserved in the eyes of the murdered person, etc.

The understanding of the provisions of Parts 2–3 of Article 112 of the CPC is reflected in the Regulatory Resolution of the Supreme Court dated April 20, 2006, No. 4, “On Certain Issues of the Assessment of Evidence in Criminal Cases,” which sets out the mechanism for excluding factual data inadmissible as evidence from the materials of a criminal case (paragraphs 5–6). In particular, the court may recognize evidence as inadmissible on its own initiative or upon a motion of the parties. A motion by a participant in the proceedings to recognize evidence as inadmissible and exclude it must be reasoned and may be submitted at any stage of the court proceedings, either in writing (to be attached to the case file) or orally (to be entered into the record of the court hearing). A court decision on a motion to recognize evidence as inadmissible, submitted at the stage of the preliminary hearing of the case or during the judicial investigation, must be reasoned in the judgment or court ruling after the disputed evidence has been examined and assessed. If the motion is submitted during the judicial investigation and there is no need for additional verification of the disputed evidence, the court may issue a ruling on this matter in the deliberation room. If a motion to exclude evidence as inadmissible is submitted by the defendant, their legal representative, or defense counsel on the grounds that it was obtained in violation of the law, the state prosecutor shall refute these arguments. If a motion on the above grounds is submitted by the state prosecutor, private prosecutor, victim, civil plaintiff or defendant (with the exception of the defendant, their legal representative, and defense counsel), or their representatives, the participant in the proceedings who submitted the motion shall bear the burden of proving their arguments.

In the above-mentioned Regulatory Resolution of the Supreme Court (paragraph 24), courts are instructed to take all measures to verify statements made by the parties concerning the use of unlawful methods of investigation (inquiry) in the collection and securing of evidence. Courts are instructed to examine and assess together the requested materials of the verification conducted during pre-trial proceedings in the case and the information obtained during the court proceedings in relation to such statements. If the case materials contain no information on the results of verification of statements made by the defendant or other persons participating in the case concerning violations of their rights during the pre-trial investigation (failure to provide defense counsel, coercion to give testimony, misleading, use of torture, failure to provide medical assistance, etc.), and if it is impossible to verify them fully during the court hearing, the court may issue a ruling addressed to the prosecutor requesting the submission of an appropriate report together with the materials verifying the arguments set out in the statements. If the use of unlawful methods of investigation (inquiry) is confirmed, courts must recognize the evidence obtained in this manner as inadmissible. Information concerning the facts of violations of the law shall be communicated to the prosecutor in a separate court ruling for the purpose of taking measures against the persons responsible.

Failure to include in the inventory of the materials of the criminal case the sources of evidentiary information listed in Part 2 of Article 111 of the CPC precludes their use within the general body of evidence supporting suspicion or accusation in the case (Part 3 of Article 112 of the CPC). This may result either from the negligence of officials or from abuses by officials of the bodies conducting criminal proceedings.

In this regard, the Supreme Court, in its Regulatory Resolution No. 3 of December 13, 2013, “On the Application in Criminal Proceedings of Certain Provisions of Legislation Regulating Issues of the Protection of State Secrets,” expressly stated, in particular, that criminal prosecution authorities shall attach materials obtained through operational-search activities to the criminal case as physical evidence and/or documents in accordance with Articles 118 and/or 120 of the CPC and in compliance with the requirements of Articles 47 and 97 of the CPC. The inclusion of physical evidence and documents obtained as a result of operational-search activities in the inventory of the materials of the criminal case is mandatory. Failure to comply with the requirements of criminal procedure law specified in this paragraph entails, in accordance with the requirements of Part 3 of Article 112 of the CPC of the Republic of Kazakhstan, the recognition of factual data obtained in the course of operational-search activities as inadmissible evidence (paragraph 12).

In addition, the law specifically emphasizes that testimony given by a suspect who was questioned not in the capacity of a suspect but as a witness may not be used as the basis for suspicion or against their spouse and close relatives, even if, at the time of questioning, evidence existed indicating their involvement in the criminal offense committed (Part 3 of Article 112 of the CPC). At the same time, the testimony of such a witness may, within certain limits, be used to prove other circumstances of the case. This is a right of the body conducting criminal proceedings (Part 2 of Article 112 of the CPC).

The legality and validity of the process of proving the circumstances of a committed crime are protected by the provisions of the Criminal Code, which establish criminal liability for torture (Article 146), bringing a person known to be innocent to criminal liability (Article 412), knowingly unlawful release from criminal liability (Article 413), knowingly unlawful detention, arrest, or holding in custody (Article 414), coercion to give testimony (Article 415), and falsification of evidence and operational-search materials (Article 416).

The knowingly false nature of the testimony of a victim or witness, the expert's opinion, as well as the falsity of physical evidence, records of investigative and judicial actions, and other documents, or the knowingly incorrect nature of a translation, where such circumstances have resulted in the issuance of an unlawful or unjustified judgment or ruling, if established by a court judgment that has entered into legal force, as well as criminal acts committed by officials of criminal prosecution authorities, constitute grounds for reopening proceedings in a case based on newly discovered circumstances (subparagraph 2) of Part 2 of Article 499 of the CPC).

Note: I have corrected obvious text-recognition errors and spelling mistakes but have not corrected any possible legal inaccuracies in the original commentary or the currency of the cited legislative provisions. I have also preserved the original numbering, including the numbering of subparagraphs appearing in the text.

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, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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