Commentary on Article 114. Circumstances Established Without Evidence of the Criminal Procedure Code of the Republic of Kazakhstan
The following circumstances shall be considered established without evidence unless proven otherwise within the framework of an appropriate legal procedure:
1) facts of common knowledge;
2) the correctness of research methods generally accepted in modern science, technology, art, and crafts;
3) circumstances established by a judicial act that has entered into legal force;
4) a person's knowledge of the law;
5) a person's knowledge of their official and professional duties;
6) the absence of special training or education in a person who has not submitted a document confirming their possession thereof and has not indicated the educational institution or other institution where they received such special training or education.
Alongside the circumstances belonging to the category of mandatory proof (Article 113), the CPC also regulates so-called indisputable circumstances, that is, circumstances that do not require establishment by means of evidence unless proven otherwise within the framework of an appropriate legal procedure. The existence of such circumstances saves the time of the bodies conducting criminal proceedings and focuses their activities solely on establishing the circumstances included in the subject matter of proof in a criminal case (Article 113 of the CPC).
Indeed, there is no need to prove facts of common knowledge, that is, events and conditions that actually exist or have existed, information about which is known to all citizens and which, moreover, has been published in publicly accessible sources or otherwise brought to the attention of citizens, the population, and society (paragraph 1 of Article 114 of the CPC).
Each sphere of human activity employs theoretical and practical research methods (a set of approaches, techniques, and methods) specific to that sphere, which are used to study objective reality and acquire knowledge, have been developed over many years, and raise no doubts as to their correctness (paragraph 2 of Article 114 of the CPC). For example, every science has long employed general (universal), general scientific (applied at certain stages of scientific cognition), and particular scientific (applied exclusively within the framework of a given science or borrowed from other sciences) methods of understanding objective reality.
The provision of paragraph 3 of Article 114 of the CPC refers to the principle of prejudicial effect, that is, as a general rule, the binding and indisputable nature of a court decision that has entered into legal force for all state bodies, organizations, and citizens, both with regard to the circumstances established and their legal assessment (Part 1 of Article 127 of the CPC).
The provision of paragraph 4 of Article 114 of the CPC reflects the general constitutional requirement that everyone is obliged to observe the Constitution and legislation of the Republic of Kazakhstan and respect the rights, freedoms, honour, and dignity of other persons (paragraph 1 of Article 34 of the Constitution). This requirement applies to citizens of the Republic, as well as stateless persons and foreigners present within the territory of the country.
As a rule, a person's knowledge of their official and professional duties, which are provided for by the terms of their employment contract with the employer, does not require proof. An employment contract must specify work in a particular speciality, profession, qualification, or position (labour function) (subparagraph 2) of paragraph 1 of Article 28 of the Labour Code dated November 23, 2015).
Undoubtedly, the failure of a participant in the proceedings to submit a document confirming completion of special training or possession of the relevant education does not require proof of the absence of such special training or educational qualifications in that person. In other words, if a person has not submitted the required educational documents, accordingly, that person is not regarded as possessing special training or education.
In accordance with the Law of the Republic of Kazakhstan dated July 27, 2007, “On Education”, the following types of education documents are in force in the Republic of Kazakhstan: 1) state-standard education documents; 2) education documents issued by autonomous educational organizations; 3) education documents of an institution's own standard. Education documents issued by autonomous educational organizations, as well as educational organizations under the President of the Republic of Kazakhstan, are equated with state-standard education documents. All types of education documents contain security features (paragraph 1 of Article 39).
The right to issue education documents of an institution's own standard is granted to: 1) educational organizations having special status; 2) educational organizations holding a licence to engage in educational activities under educational programmes of higher and postgraduate education. The form and requirements for completing education documents of an institution's own standard are determined by the educational organization (paragraph 5 of Article 39).
Education documents issued by foreign educational organizations are recognized within the territory of the Republic of Kazakhstan on the basis of international treaties (agreements). In the absence of international treaties (agreements), the nostrification of education documents obtained by citizens of the Republic of Kazakhstan from foreign educational organizations, and the issuance of corresponding certificates to them, shall be carried out in accordance with the procedure determined by the authorized body in the field of education (paragraph 7 of Article 39).
Education documents issued by foreign higher education institutions, scientific centres, and laboratories to citizens of the Republic of Kazakhstan who are recipients of the “Bolashak” international scholarship shall be recognized in the Republic of Kazakhstan without undergoing recognition or nostrification procedures (paragraph 8 of Article 39).
In accordance with Order No. 39 of the Minister of Education and Science of the Republic of Kazakhstan dated January 28, 2015, “On Approval of the Types and Forms of State-Standard Education Documents and the Rules for Their Issuance”, the types of state-standard education documents certifying completion of final attestation and confirming that students have mastered the state compulsory standard of the corresponding level of education include a certificate, certification document, school-leaving certificate, and diploma (Types of State-Standard Education Documents, paragraph 1 of Appendix 1 to the Order).
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan, 2020 edition, 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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