Commentary on Article 115. Testimony of the Suspect, Victim and Witness of the Criminal Procedure Code of the Republic of Kazakhstan

1. Testimony of a suspect, victim or witness means information provided by them in written or oral form during an interrogation conducted in the course of pre-trial investigation in accordance with the procedure established by Chapter 26 of this Code.

2. A suspect has the right to give testimony regarding the suspicion against them, as well as regarding other circumstances and evidence known to them that are relevant to the case.

3. A suspect's admission of guilt in committing a criminal offence may form the basis of an accusation only if their guilt is confirmed by the totality of the evidence available in the case.

4. A victim may be questioned about any circumstances subject to proof in the case, as well as about their relationships with the suspect, other victims and witnesses. Information reported by a victim cannot serve as evidence if the victim is unable to identify the source of their knowledge.

5. A witness may be questioned about any circumstances relevant to the case, including the identity of the suspect and the victim, as well as their relationships with them and with other witnesses. Information reported by a witness cannot serve as evidence if the witness is unable to identify the source of their knowledge. Statements made by persons who are not subject to examination as witnesses shall not constitute evidence.

6. Testimony concerning information characterising the personality of the suspect may not form the basis of an accusation and shall be used as evidence only for the purpose of resolving issues related to the imposition of punishment or exemption from punishment.

7. Testimony given by a person who, in accordance with the procedure established by this Code, was found to have been incapable, at the time of interrogation, of correctly perceiving or reproducing circumstances relevant to the criminal case shall not constitute evidence.

8. Factual data directly perceived by a person providing assistance to law enforcement or special state bodies on a confidential basis may be used as evidence after that person has consented to being questioned as a witness, victim, suspect or accused.

Factual data directly perceived by persons infiltrated into a criminal group may, for the purpose of ensuring the safety of those persons, be used as evidence after an official of the body conducting operational-search activities, counterintelligence activities or covert investigative actions has been questioned as a witness.

Note. Article 115 was amended by Law of the Republic of Kazakhstan No. 36-VI dated 28 December 2016 (shall enter into force upon the expiration of two months from the date of its first official publication).

Testimony of a suspect, victim and witness differs, first and foremost, in terms of the subject matter of the information reported during interrogation. The factual data obtained when questioning these persons must relate to the circumstances to be proved by the body conducting the criminal proceedings in each criminal case (see the commentary on the provisions of Article 113 of the CPC).

The provisions of Part 2 of Article 115 of the CPC refer to cases in which a suspect is entitled to give testimony during interrogation following detention, during interrogation after being recognised as a suspect in a criminal case, as well as after being served with the decision on the legal classification of the suspect's act. These are three cases, excluding possible additional or repeated interrogations concerning the subject matter of the suspicion, other circumstances of the case and the evidence collected in the case.

A suspect's admission of guilt in committing a criminal offence (Part 3 of Article 115 of the CPC), which was once regarded as the “queen” of evidence, must in itself entail a thorough examination of such testimony in order to prevent an innocent person from being held criminally liable. Therefore, during the verification process, additional evidence of the suspect's guilt in committing the criminal offence is collected. Taken together, such evidence forms a system of evidence necessary to establish the grounds for criminal liability and the suspect's guilt, indicating with the required degree of depth and accuracy that the criminal offence was committed by that particular person.

Testimony of a victim or witness (Parts 4–5 of Article 115 of the CPC) may concern both the subject matter of proof in the case (Article 113 of the CPC) and their relationships with the perpetrator of the criminal offence and other participants in the criminal proceedings, or information about their personal characteristics. In this regard, testimony must be reliable and based on an appropriate source of its origin.

Testimony of a victim or witness cannot be recognised as admissible evidence if it is based on conjecture, assumption, hearsay or rumours, as well as in cases where the witness is unable to identify the source of their knowledge; where the interrogation was conducted by a person who does not have the authority to perform the procedural action in the case; or where it was conducted in a place not prescribed by law, in violation of the established time and duration requirements (on the street, in a café, in someone else's apartment, by unjustifiably taking the person to another locality, at night, continuously for more than four hours, etc.), except in cases that cannot be postponed.

Cases that cannot be postponed should be understood as the sudden occurrence of circumstances in which delaying the interrogation may result in the loss of traces of the crime, the disappearance of the persons who committed it, or the impossibility of compensating for the damage caused by the crime (Paragraph 15 of Regulatory Resolution No. 4 of the Supreme Court dated 20 April 2006, “On Certain Issues of the Assessment of Evidence in Criminal Cases”).

It should be recalled that a number of persons are not subject to examination as witnesses. These include: a judge; a juror; an arbitration judge or arbitrator; defence counsel for a suspect, accused, defendant or convicted person, as well as their legal representatives, the representative of a victim, civil claimant or civil defendant, and the lawyer of a witness; a clergyman; a person who, due to their young age or mental or physical disabilities, is incapable of correctly perceiving circumstances relevant to the case and giving testimony about them; a mediator (except in cases provided for by law); and a participant in the national preventive mechanism (except in cases involving a threat to national security) (see the commentary on Part 2 of Article 78 of the CPC).

The content of information characterising the personality of a suspect, originating from a victim, witness, other suspects in the case and other case materials, which cannot form the basis of an accusation but may mitigate or aggravate criminal punishment, is set out in Articles 53 and 54 of the Criminal Code (Part 6 of Article 115 of the CPC).

In Regulatory Resolution No. 4 dated 25 June 2015, “On Certain Issues of Imposing Criminal Punishment” (Paragraphs 3 and 4), the Supreme Court directs courts to conduct a comprehensive, complete and objective examination of information concerning the personality of the defendant, bearing in mind its substantial significance in determining the type and amount of punishment.

In particular, it is necessary to establish the defendant's state of health, ability to work, attitude towards work and education, and information concerning previous convictions.

Having established the defendant's family circumstances, courts must, in accordance with Part 3 of Article 52 of the Criminal Code, take into account, when imposing punishment, the impact of the punishment imposed on the living conditions of their family or persons dependent on them (Paragraph 3).

Furthermore, other circumstances established by the court under which the crime was committed, or circumstances characterising the defendant (abuse of alcoholic beverages, violation of public standards of conduct, poor attitude towards family, work, studies, etc.), may be taken into account when imposing punishment but may not be recognised as aggravating circumstances of liability and punishment (the list of circumstances aggravating liability and punishment specified in Part 1 of Article 54 of the Criminal Code is exhaustive).

The defendant's unexpunged and outstanding convictions may also be taken into account when imposing punishment, etc.

In cases where a particular circumstance provided for in Articles 53 and 54 of the Criminal Code is specified in the disposition of an article of the Special Part of the Criminal Code as one of the qualifying elements of a crime, courts must not take that circumstance into account again when imposing punishment as a mitigating or aggravating circumstance of liability and punishment.

The limits of judicial proceedings are restricted by the charges brought against the defendant, which are formulated when the indictment is drawn up. Circumstances mitigating and aggravating liability and punishment are included in the content of the accusation (Subparagraph 4 of Paragraph 3 of Article 299 of the CPC).

Consequently, in accordance with the requirements of Article 340 of the CPC, the court's establishment in its judgment of the existence of aggravating circumstances of liability that were not specified in the indictment worsens the defendant's position and constitutes a violation of the limits of judicial proceedings.

At the same time, the resolution of the issue of recognising circumstances as mitigating liability is not restricted by the limits of the accusation and must be based on the factual circumstances of the case established during the main court hearing (Paragraph 4).

The provisions of Part 7 of Article 115 of the CPC refer to persons who, due to mental or physical disabilities, are unable to exercise their right to defence independently, including persons who have a mental disorder that does not exclude criminal responsibility, as well as those suffering from a significant speech, visual or hearing impairment or another serious illness.

If doubts arise concerning the sanity of a person (suspect or accused) or their ability to independently defend their rights and legitimate interests due to mental or physical disabilities, the appointment and conduct of an expert examination shall be mandatory in accordance with Subparagraph 4 of Part 1 of Article 271 of the CPC (Paragraph 10 of Regulatory Resolution No. 26 of the Supreme Court dated 6 December 2002, “On the Practice of Applying Criminal Procedure Legislation Governing the Right to Defence”).

A person (witness or victim) may be recognised as incapable, at the time of interrogation, of correctly perceiving or reproducing circumstances relevant to the case and giving testimony about them only based on the results of a comprehensive psychological and psychiatric examination, which is mandatory in such cases (Subparagraph 5 of Part 1 of Article 271 and Part 1 of Article 539 of the CPC).

If this circumstance is confirmed by the expert examination, the testimony of the suspect, accused, victim or witness shall be recognised as having no evidentiary force.

Part 8 of Article 115 of the CPC permits the use in a case of testimony given by a person who provides assistance to criminal prosecution bodies on a confidential (secret) basis. In this regard, a confidential informant may be a witness, victim, suspect or accused. Testimony from these persons may be obtained only with their consent.

Furthermore, if security measures have not been applied to them on the basis of Article 97 of the CPC, the questioning of the aforementioned persons as witnesses shall be conducted by the court in accordance with the general procedure and the rules set out in Parts 1–6 of Article 370 of the CPC.

A somewhat different approach is applied when it becomes necessary to obtain testimony from confidential informants who have been infiltrated into a criminal group by a body conducting operational-search activities, counterintelligence activities or covert investigative actions. Under the law, for reasons of ensuring security measures, the head of the body conducting operational-search activities, counterintelligence activities or covert investigative actions is entitled to give testimony as a witness in place of those persons.

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

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