Commentary on Article 119. Records of Procedural Actions of the Criminal Procedure Code of the Republic of Kazakhstan
1. Evidence in a criminal case shall consist of factual data contained in records of investigative actions drawn up in accordance with the rules of this Code, certifying circumstances directly perceived by the person conducting the criminal proceedings, as well as circumstances established during inspection, examination, seizure, search, detention, seizure of property, presentation for identification, obtaining samples, exhumation of a corpse, verification of testimony at the scene, submission of documents, investigative experiment, examination of the results of covert investigative actions, examination of physical evidence conducted by a specialist during an investigative action, as well as factual data contained in the record of the court hearing, reflecting the course of judicial proceedings and their results.
2. Factual data contained in records drawn up when accepting an oral statement of a criminal offence, submitted items and documents, voluntary confession, and explaining to persons their rights and the duties imposed on them may be used as evidence.
Records of investigative actions drawn up during an inquiry and preliminary investigation occupy a significant place in the overall volume of evidentiary information in a criminal case. The list of investigative and covert investigative actions is regulated by the provisions of the CPC and is exhaustive (see the commentary on the provisions of Articles of Chapters 26—35 of the CPC). Drawing up a record of an investigative action during its conduct or immediately after its completion is one of the general conditions for conducting pre-trial investigations (Article 199 of the CPC).
When assessing a record of an investigative action as evidence, it is necessary to verify its compliance with the requirements of Articles 119, 123 and 199 of the CPC. If significant violations have been committed in drawing up the record of an investigative action (the record has not been signed by the investigator, attesting witnesses, etc.), it must be recognised as inadmissible evidence. Technical errors (typographical errors, corrections, etc.) in the record that do not cast doubt on the reliability and legality of the investigative actions shall not constitute grounds for recognising the record as inadmissible evidence (paragraph 19 of Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006, “On Certain Issues of Assessing Evidence in Criminal Cases”).
3. Alongside records of investigative actions, the provision of Part 1 of Article 119 of the CPC also classifies the record of the main court hearing as a record (a source of evidence in the case) and distinguishes it separately. Keeping a record during the main court hearing reflecting the fact, course and results of the hearing is also one of the general conditions of this stage of criminal proceedings (Article 347 of the CPC). Unlike records of investigative actions, all judicial actions involving the examination of evidence during a court hearing are documented in the record of the main court hearing. This explains the significance attached to the record of the main court hearing by the legislator and the Supreme Court of the country.
Regulatory Resolution No. 11 of the Supreme Court dated December 23, 2005, “On the Application of the Provisions of Criminal Procedure Law Concerning the Record of a Court Hearing”, states that the record of a court hearing is a procedural document serving as the basis for a judicial ruling and used by appellate and cassation courts when deciding issues concerning the observance by the court of the rights of persons participating in the proceedings, the principle of adversarial proceedings, equality of the parties and other principles of criminal justice, as well as the objectivity, completeness and comprehensiveness of the proceedings conducted (paragraph 1). The record must contain complete and accurate information about the type of court hearing held, the place, date and time of its conduct, the name and composition of the court, the necessary information about other persons who participated in the court hearing, motions and challenges filed and the decisions taken thereon, arguments presented by the parties, inspections, documents examined, appointment of expert examinations, facts of disrespect towards the court and other violations of order during the court hearing, measures taken against the offenders, and other procedural actions conducted in accordance with the provisions of the CPC (paragraph 2).
In addition to records of investigative actions and the record of the main court hearing, the provisions of Part 2 of Article 119 of the CPC distinguish records of procedural actions that are not investigative actions, but which may also contain evidentiary information and whose preparation is regulated by Article 110, Part 4 of Article 122, Part 2 of Article 181 and Part 2 of Article 182 of the CPC. For example, pursuant to Part 4 of Article 122 of the CPC, items and documents that may constitute evidence in a case may be submitted by participants in the proceedings by filing an appropriate motion, as well as by any citizens and organisations. In such cases, after the items and documents have been assessed, they are attached to the case file, and a record of the items and documents submitted is drawn up to that effect.
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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