Commentary on Article 120 of the Criminal Procedure Code of the Republic of Kazakhstan. Documents
- 1. Documents shall be recognized as evidence if the information stated or certified therein by individuals, legal entities and officials is relevant to the criminal case.
- Materials containing factual data on unlawful acts, obtained in compliance with the requirements of the Laws of the Republic of Kazakhstan “On Operational-Investigative Activities” and “On Counterintelligence Activities”, shall constitute documents and may be used as evidence in criminal proceedings.
- 2. Documents may contain information recorded in both written and other forms. Documents include, among other things, explanations, inventory reports, audit reports, certificates, tax audit reports, conclusions of tax authorities, as well as materials containing computer information, photographs and motion pictures, audio and video recordings obtained, requested or submitted in accordance with the procedure provided for in Article 122 of this Code.
- 3. Documents shall be attached to the case file and kept therein throughout the entire period of its retention. Where seized and attached documents are required for current accounting, reporting and other lawful purposes, upon the application of their lawful owner, they may be returned to such owner or provided for temporary use, including from electronic storage media, provided that this is possible without prejudice to the case, or copies thereof may be provided, certified by a notary where necessary.
- 4. Expenses related to the copying of documents and notarization of the accuracy of copies of the documents being transferred shall be borne by the initiator of the application.
- Documents that are irrelevant to the criminal case shall be returned to their lawful owner.
- 5. Where documents possess the characteristics specified in Article 118 of this Code, they shall be recognized as physical evidence.
- Note. Article 120 was amended by the Law of the Republic of Kazakhstan dated December 28, 2016, No. 36-VI (shall enter into force upon the expiration of two months from the date of its first official publication); and by the Law dated January 21, 2019, No. 217-VI (shall enter into force upon the expiration of ten calendar days from the date of its first official publication).
The materials of a criminal case contain various procedural documents, including investigative and judicial documents, as well as other documents of a non-procedural nature. Part 2 of Article 111 of the CPC classifies other documents as sources of evidence in a case. Such documents may originate from any persons. However, not all of them have evidentiary significance for the case. Thus, only those documents that contain information relevant to the criminal case are regarded as a type of source of evidence referred to in Part 2 of Article 111 of the CPC (Part 1 of Article 120 of the CPC).
The classification of materials from operational-investigative and counterintelligence activities as documents under Part 2 of Article 120 of the CPC is of particular importance (such materials should not be confused with materials obtained through covert investigative actions). They must be obtained in accordance with the requirements of the Law “On Operational-Investigative Activities” (Article 14) and the Law “On Counterintelligence Activities” (Article 12). For example, these may include operational-investigative or counterintelligence materials that formed the basis for the detention of a person and contain reliable information about a crime committed or being prepared by that person (Subparagraph 4 of Part 2 of Article 128 of the CPC).
A fairly large group of documents used in criminal proceedings is established in Part 3 of Article 120 of the CPC: written documents and documents stored on technical media, obtained both during procedural actions, including investigative and judicial actions, and submitted by the parties to the proceedings, as well as by any citizens and organizations.
As we have noted above, documents do not necessarily have to be prepared in written form. The development of modern technologies has made it possible to record them on various technical information storage media referred to in Part 3 of Article 120 of the CPC. However, the submission of evidentiary information in such a form must be accompanied by a covering letter, for example, from a mass media outlet, a resolution of the body that carried out operational-investigative activities, etc. If such documents originate from a citizen, they may form part of that citizen's written application; reference to them may be made in the record of submission of objects or documents or in the record of an oral report of a criminal offense. In short, there are various ways in which other documents may be submitted and attached to the case file.
The procedure for handling documents provided for in Part 4 of Article 120 of the CPC meets the needs of criminal proceedings and their participants: documents are kept with the case file throughout the entire period of its retention; under certain circumstances, they may be used for lawful purposes without prejudice to the case (returned to their lawful owner on a permanent basis or for temporary use, in their originals or copies, including copies certified by a notary, with the expenses (copying and notarization) being reimbursed by the initiator of the application (the lawful owner)).
And one more comment regarding the provisions of Part 5 of Article 120 of the CPC. Documents that served as an instrument or other means of committing a criminal offense, that have retained traces of a criminal offense, or that were the objects of criminal acts, after being seized or obtained during other investigative or judicial actions (discovered during an inspection, etc.), shall be attached to the case file as physical evidence by a resolution of the body conducting the criminal proceedings (see the commentary on the provisions of Articles 118 and 221 of the CPC).
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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