Commentary on Article 12. Judicial Protection of Human and Civil Rights and Freedoms of the Criminal Procedure Code of the Republic of Kazakhstan

1. Everyone shall have the right to judicial protection of their rights and freedoms.

2. No one may have the jurisdiction established for them by law changed without their consent.

3. The State shall ensure that victims have access to justice and compensation for the damage caused in the cases and in accordance with the procedure established by law.

• Paragraph 2 of Article 13 of the Constitution of the Republic of Kazakhstan, which provides that everyone has the right to judicial protection of their rights and freedoms, should be understood as the right of any person within the territory of Kazakhstan to apply to a court for the protection and restoration of violated rights and freedoms in accordance with the procedure established by law. First and foremost, the right to judicial protection of one's rights and freedoms is granted to every participant in criminal proceedings at all stages of the proceedings, both before trial and during the judicial stages. In this regard, a sufficiently clear clarification was provided by the Constitutional Council back in 1999: “By establishing in paragraph 2 of Article 13 the right of a person and citizen to judicial protection of their rights and freedoms, the Constitution of the Republic envisages the possibility for everyone to apply to a court for the protection and restoration of violated rights and freedoms. At the same time, the Constitution does not determine the procedure for exercising this constitutional right. It follows from Article 75 and subparagraph 3 of paragraph 3 of Article 77 of the Constitution that this mechanism is established by laws regulating the organizational and legal structure of the judicial system and the administration of justice. Subparagraph 3 of paragraph 3 of Article 77 of the Constitution presupposes the existence of rules on the jurisdiction of cases. The competence of courts of various levels is determined solely by the range of cases assigned to their jurisdiction by law. At the same time, the procedural procedure for considering cases at all levels of the country's judicial system is uniform and mandatory with respect to all defendants and does not create any privileges for one group of persons, just as it does not infringe upon anyone's right to judicial protection of their rights and freedoms. With regard to judgments rendered by local courts, the CPC establishes several levels of review in the interests of legality and the prevention of judicial errors.
• The requirements of paragraph 1 of Article 14 of the Constitution are consistent with Article 75 of the Constitution of the Republic, which states that justice in the Republic is administered exclusively by courts through the established forms of judicial proceedings. At the same time, in order to prevent the infringement of human and civil rights and freedoms or the creation of advantages for any category of persons, the establishment of any bodies with the functions and powers of courts is not permitted. In this sense, individuals and citizens are equal in their rights and obligations before the court, which is a state body vested with the exclusive right to administer justice. Equality before the law means equality of an individual's rights and obligations, equal protection of these rights by the State, and equal liability of everyone before the law on the same grounds. Restrictions on human and civil rights and freedoms may be imposed only by laws and only in the cases provided for in paragraph 1 of Article 39 of the Constitution” (Resolution of the Constitutional Council No. 8/2 dated May 5, 1999, descriptive and reasoning section).
• At the pre-trial stages, the CPC permits full judicial consideration of complaints against the actions and decisions of criminal prosecution bodies and the prosecutor, as well as appeals against and protests against rulings of the investigating judge (Articles 106 and 107).
• The Constitution (subparagraph 3 of paragraph 3 of Article 77) and the CPC establish that no one may have the jurisdiction prescribed for them by law changed without their consent. In this regard, Chapter 40 of the CPC provides for a system of rules governing the jurisdiction of criminal cases, its determination when criminal cases are joined, and the resolution of disputes concerning jurisdiction (Articles 306–318). When considering the application of this constitutional principle in criminal proceedings (the submission of the Chairman of the Supreme Court concerning the compliance of Article 200 of the CPC of the Kazakh SSR with the Constitution of the Republic of Kazakhstan in connection with the criminal case involving the accusation of T.), the Constitutional Council, substantiating its decision, indicated that the CPC provision establishing the transfer of a criminal case for consideration to the court of the district where the crime was committed, and, where it is impossible to determine the place where the crime was committed, to the court at the place where the investigation was initiated or completed, does not contradict the constitutional provision enshrined in subparagraph 3 of paragraph 3 of Article 77 and does not violate the constitutional right of the accused to have jurisdiction remain unchanged without their consent (Resolution of the Constitutional Council No. 15/2 dated July 4, 1997, descriptive and reasoning section).
• The legislator has also given due attention to the victim of a criminal offense, an important participant in criminal proceedings whose role to a considerable extent determines the course and outcome of any criminal case. The protection of the rights and legitimate interests of the victim, as well as their prompt and full restoration by means of criminal procedure, constitute the central task and objective of the entire criminal justice system. Access to justice, the right to be heard in court, participation in the judicial hearing of a case in the court of first instance, making statements during judicial debates, maintaining the prosecution, including in cases where the public prosecutor withdraws the charges, etc. — this is an incomplete list of the content of the legal capacity of a victim of a criminal offense (paragraph 2 of Article 12, paragraph 2 of Article 13, paragraph 1 of Article 14, subparagraph 4 of paragraph 3 of Article 77 of the Constitution, Articles 71 and 338 of the CPC). The body conducting criminal proceedings is obliged to ensure that the victim receives compensation for property damage caused by the criminal offense, as well as expenses incurred in connection with their participation in the preliminary investigation and in court, including expenses for a representative. A victim's claim for compensation for moral damage shall be considered in criminal proceedings. If such a claim was not filed by the victim in the criminal case or remained without consideration, the victim shall have the right to file it in civil proceedings (paragraphs 4 and 5 of Article 71 of the CPC). Furthermore, persons recognized as victims by a resolution of a criminal prosecution body shall have the right to receive monetary compensation without delay from the fund in the cases, in the manner, in the amounts and within the time limits provided for by the legislative act on the Victim Compensation Fund. The categories of victims entitled to receive immediate state compensation are determined by the legislative act on the Victim Compensation Fund (paragraph 1 of Article 173 of the CPC).
• Access to justice for participants in criminal proceedings has also become more prompt thanks to the introduction of elements of electronic government into the judicial system of the Republic of Kazakhstan. The Supreme Court's website operates the electronic information service “Judicial Office” (“Sudebny Kabinet”), which “enables citizens, their representatives and lawyers (including within the framework of criminal proceedings — author's note) to submit statements of claim, appeals, petitions for review of a judicial act under cassation procedure, and applications to the court electronically; pay state duties online; view judicial documents, as well as the status of a case, etc.” (based on materials from the website: www.sud.gov.kz). Participants in criminal proceedings may use the following “Judicial Office” services: “Review of Judicial Acts” (a service for submitting an appeal/private complaint and a petition for review of a judicial act under cassation procedure); “Search for Court Cases” (a service for searching for a court case and reviewing its documents); “Applications” (a service that guarantees the delivery of applications to judicial authorities, allows users to track their status and receive responses); “Case Documents” (a service for submitting applications and petitions during the consideration of cases); “Payment Receipt Verification” (a service for searching for information using the unique number of an online payment receipt); “Filing of Applications for Claim Proceedings, Order Proceedings, Special Claim Proceedings and Special Proceedings”. In order to use the services of the “Judicial Office”, users must log in using an electronic digital signature.
• In addition to the “Judicial Office”, a number of electronic public services in the field of judicial proceedings are also provided through the electronic government website www.egov.kz. On this website, participants in criminal proceedings may: submit an electronic application for the issuance of a court hearing transcript (no later than 3 calendar days after the end of the court hearing, and in complex cases — 10 calendar days; an application for the issuance of a transcript of a separate procedural action shall be submitted no later than the day following its performance); submit an electronic application containing comments on the transcript (within 5 days after familiarization with it). In addition, a certificate confirming the presence or absence of information concerning the commission of a crime by a person may be obtained through electronic government services. To receive all the aforementioned electronic services, the service recipient must also obtain an electronic digital signature.
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• 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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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