Commentary on Article 122. Collection of Evidence of the Criminal Procedure Code of the Republic of Kazakhstan
1. Evidence shall be collected in the course of pre-trial investigation and court proceedings by carrying out procedural actions provided for by this Code. The collection of evidence includes its discovery, recording and seizure.
2. The body conducting the criminal proceedings, upon motions of participants in the proceedings or on its own initiative, shall be entitled, in respect of a criminal case pending before it, to summon any person in accordance with the procedure established by this Code for questioning or for giving an opinion as an expert or specialist; to carry out procedural actions provided for by this Code; to demand from individuals, legal entities and officials, as well as bodies carrying out operational-search or counterintelligence activities, the provision of documents and items relevant to the case, subject to compliance with the procedure for issuing and disclosing information constituting commercial or other legally protected secrets, as established by legislative acts of the Republic of Kazakhstan; and to require authorized bodies and officials to conduct audits and inspections.
Where an audit or inspection of the activities of business entities is required, the criminal prosecution body shall notify the prosecutor within twenty-four hours. A court shall not be entitled to collect evidence on its own initiative.
3. A defense counsel and a representative of the victim, admitted to participate in pre-trial investigation or court proceedings in accordance with the procedure established by this Code, shall be entitled, subject to compliance with the procedure established by legislative acts of the Republic of Kazakhstan concerning the non-disclosure of information constituting commercial and other legally protected secrets, to obtain information necessary for carrying out the defense and representing the interests of the victim by means of:
1) requesting certificates, references and other documents from legal entities, including government bodies and public associations. The said persons shall be obliged to provide the defense counsel or the representative of the victim with the documents requested by them or certified copies thereof within ten days.
When considering the issue of authorizing detention as a preventive measure, the requested certificates, references and other documents shall be provided to the defense counsel within twenty-four hours;
initiating, on a contractual basis, the conduct of a forensic examination in accordance with Parts Five, Nine and Ten of Article 272 of this Code;
sending a request to an expert institution to conduct the relevant examination on a contractual basis;
engaging a specialist on a contractual basis;
interviewing, with their consent, persons presumed to possess information relating to the criminal case, including through the use of scientific and technical means.
The course and results of the interview shall be recorded in writing or on an electronic medium, which, upon a motion of the defense counsel or the representative of the victim, shall be subject to attachment to the criminal case and shall acquire the status of evidence after being examined and evaluated by the body conducting the criminal proceedings in accordance with the requirements of this Code.
4. Information, whether in oral or written form or in the form of an electronic document, as well as items and documents, may be submitted for attachment to a criminal case as evidence by a suspect, accused person, defense counsel, private prosecutor, victim, civil claimant, civil defendant and their representatives, as well as by any citizens and organizations.
5. Failure to comply with the requirements of Paragraph 1) of Part Three of this Article shall entail liability established by law.
Note. Article 122 was amended by the Laws of the Republic of Kazakhstan dated October 31, 2015, No. 378-V (shall enter into force on January 1, 2016); dated December 28, 2016, No. 36-VI (shall enter into force upon the expiration of two months after the date of its first official publication); and dated December 21, 2017, No. 118-VI (shall enter into force upon the expiration of ten calendar days after the date of its first official publication).
1. The collection of evidence, within the meaning of Part 1 of Article 122 of the CPC, takes place at all stages of criminal proceedings and constitutes the first stage in proving the circumstances of a criminal offense. The provisions of Article 122 of the CPC identify three groups of participants in the proceedings who are involved in the process of collecting evidence.
Undoubtedly, the main burden of this work falls upon the bodies conducting criminal proceedings, which use their authoritative powers to search for and obtain evidentiary information in the case and examine it, including by carrying out a wide range of procedural actions, including investigative and judicial actions.
Alongside the prosecution, defense counsel and representatives of victims carry out activities aimed at protecting rights and interests, occupying their respective place in the process of collecting evidence during proceedings in the case (some of their methods of work are specified in Part 3 of Article 122 of the CPC).
Finally, the initiative to submit evidence by filing motions may originate from participants in the proceedings, as well as from any citizens and organizations who have any information about a committed or impending criminal offense. The procedural procedure for attaching evidence submitted by participants and non-participants in the proceedings (in oral, written or electronic-document form, as well as items and documents) is regulated by Articles 115–120 of the CPC. This is a highly relevant channel for collecting evidence, the use of which largely depends on how participants in the proceedings, citizens and legal entities perceive the bodies conducting criminal proceedings, as well as on whether these bodies and their officials comply with all the principles of criminal proceedings during the conduct of the case.
In other words, the bodies conducting criminal proceedings are not alone in collecting evidence in a case, and the legislator's approaches to this issue express the adversarial and other principles of the proceedings at the relevant stages of proof (Part 4 of Article 122 of the CPC).
2. The collection of evidence includes its discovery, recording and seizure, as established by Part 1 of Article 122 of the CPC. These elements of the first stage of the evidentiary process are, as a rule, applied simultaneously. For example, the discovery of evidence, its recording and seizure may take place during investigative actions (inspection, search, etc.). The existence of such evidence can be established by means of the record of the investigative action.
3. Part 2 of Article 122 of the CPC establishes various forms of evidence collection by the body conducting criminal proceedings and, in this sense, its provisions express in a concentrated form the essence of proving the circumstances subject to establishment in a criminal case (Article 113 of the CPC).
The provisions of Part 2 of Article 122 of the CPC reiterate the principle that a court is prohibited from taking personal initiative in collecting evidence. The evidence has already been collected, but it must be verified, that is, examined and evaluated. This is correct, since it does not place the court on the same level as the parties to the proceedings, while allowing it to assist the latter in exercising their rights to examine the evidence available in the case, submit motions for the production of evidence, and participate in its examination using the potential of judicial actions. Regardless of the activity of the parties to the proceedings in proving their positions, the court is obliged, using the rules of court hearings and the opportunities provided by judicial actions, to personally examine and evaluate all evidence submitted by the parties in the case before delivering a lawful and just decision.
Part 2 of Article 122 of the CPC also reflects the specific nature of criminal proceedings, which is expressed in the fact that it is not subject to the relations regulated by the Entrepreneurial Code of the Republic of Kazakhstan dated October 29, 2015, in the area of organizing control and supervision over inspected entities, regardless of their legal status, forms of ownership and types of activity (Paragraph 5 of Article 129). However, the provisions of Part 2 of Article 122 of the CPC are motivated by nothing other than the protection of entrepreneurship, as an essential foundation of the country's socio-economic well-being, against unlawful and unjustified interference by bodies conducting criminal proceedings: in all cases of ordering audits and inspections of the activities of business entities, criminal prosecution bodies are obliged to notify the prosecutor within twenty-four hours.
Part 3 of Article 122 of the CPC establishes the forms through which the defense counsel of a suspect or accused person and the representative of a victim exercise their rights in criminal proceedings.
First and foremost is their right to request and obtain certificates, references and other documents from various sources, generally within ten days, and, in cases where the issue of placing a suspect in custody is being considered, taking into account the urgency of the matter, within two days from the moment of applying to obtain them (Paragraph 1 of Part 3 of Article 122 of the CPC).
Initiating the conduct of a forensic examination on a contractual basis, indicating a specific expert (Paragraph 2 of Part 3 of Article 122 of the CPC), means that such examination is appointed by the body conducting criminal proceedings upon a motion of the defense counsel or the representative of the victim, in compliance with the procedural form (including the procedure for reimbursement of expenses associated with conducting the examination, as well as payment for the expert's work) specified in Parts 5, 9, 10 and 11 of Article 272 of the CPC.
The conduct of a forensic examination on a contractual basis at the request of the defense counsel, or the engagement of a specialist by the defense counsel on a contractual basis, as provided for in Paragraphs 3–4 of Part 3 of Article 122 of the CPC, unlike the rule set out in Paragraph 2 of Part 3 of Article 122 of the CPC, means that the defense counsel directly applies for and obtains, on a contractual basis, an expert's or specialist's opinion to clarify issues arising in connection with the provision of legal assistance and requiring special scientific knowledge or specialized knowledge in the fields of science, technology, art and other areas of activity. However, when conducting a forensic examination or obtaining a specialist's study on a contractual basis at the defense counsel's request, the defense counsel must comply with the requirements of Parts 7–8 and 11 of Article 272 of the CPC (Subparagraph 6 of Paragraph 1 of Article 33; Subparagraph 4 of Paragraph 1 of Article 45 of the Law “On Advocacy and Legal Assistance”).
The representative of the victim is vested with similar rights (Subparagraphs 3, 4 and 6 of Part 6 of Article 71, Article 76 of the CPC).
Conducting an interview, with the consent of a person presumed to possess information relating to the criminal case, including through the use of scientific and technical means (Paragraph 5 of Part 3 of Article 122 of the CPC), creates the basis for the defense counsel of the suspect or the representative of the victim to submit motions for attaching the interview materials to the case. Moreover, the interview may subsequently develop into the questioning of the person as a defense or prosecution witness by the body conducting criminal proceedings, where necessary with the person's compulsory appearance upon a motion of the defense counsel of the suspect or the representative of the victim, with the assistance of the investigating judge, or into the deposition of that person's testimony by the investigating judge (Subparagraphs 3 and 8 of Part 2 of Article 55; Subparagraphs 1 and 6 of Part 3 of Article 70 of the CPC).
Undoubtedly, the above provisions characterize only part of the procedural activities of the defense counsel and the representative of the victim carried out in the interests of the person being defended or represented.
For example, the defense counsel is entitled not only to collect evidence independently and, in essence, conduct a parallel investigation, but also to participate in all investigative and procedural actions carried out with the participation of the person being defended, as well as in other procedural actions performed upon the latter's motion. The defense counsel's motion to participate in investigative and procedural actions being conducted shall be attached to the case. A suspect, accused person or defendant retains all the rights to defense belonging to them, regardless of whether their defense counsel participates in the criminal proceedings, and any restriction of those rights constitutes a violation of the right to defense (Paragraph 13 of Regulatory Resolution No. 26 of the Supreme Court dated December 6, 2002, “On the Practice of Applying Criminal Procedure Legislation Regulating the Right to Defense”).
The results of the defense counsel's activities are presented in a concentrated form in the list of defense witnesses attached to the indictment (Part 7 of Article 299 of the CPC), as well as in an expanded form in the defense counsel's speech during closing arguments (Article 383 of the CPC).
At the same time, factual data obtained in the course of procedural actions involving a defense counsel who was subject to removal from participation in the proceedings in accordance with Article 9 and Subparagraph 4 of Part 1 of Article 112 of the CPC shall be recognized as inadmissible evidence (Paragraph 10 of Regulatory Resolution No. 4 of the Supreme Court dated April 20, 2006, “On Certain Issues of Evaluating Evidence in Criminal Cases”).
The law attaches great importance to the documents listed in Paragraph 1 of Part 3 of Article 122 of the CPC for the protection of the interests of the persons to whom they relate. Therefore, failure to comply with the requirements of Paragraph 1 of Part 3 of Article 122 of the CPC entails administrative liability under Article 668 of the Code of Administrative Offenses, “Obstruction of the Lawful Activities of an Advocate”:
“Obstruction of the lawful activities of an advocate or a bar association, legal consultation office or law office, expressed in the failure to provide or refusal to provide, within the time limits established by legislation, upon written request, the necessary documents, materials or information required for the performance of their professional duties, provided that such actions do not contain elements of a criminally punishable act, shall entail a fine on officials in the amount of fifteen monthly calculation indices and on legal entities in the amount of twenty monthly calculation indices.”
Commentary of 2020 to 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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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