Commentary on Article 123. Recording of Evidence of the Criminal Procedure Code of the Republic of Kazakhstan
1. Factual data may be used as evidence only after it has been recorded in the records of procedural actions.
2. Responsibility for keeping records during pre-trial investigation shall rest with the interrogating officer, investigator and prosecutor, and in court—with the presiding judge and the secretary of the court hearing.
3. Participants in investigative and judicial actions, as well as the parties to judicial proceedings, shall be ensured the right to familiarize themselves with the records documenting the course and results of these actions, to make additions and corrections to the records, to express comments and objections concerning the procedure and conditions under which the relevant action was conducted, to propose their own wording of an entry in the record, and to draw the attention of the interrogating officer, investigator, prosecutor or court to circumstances that may be relevant to the case. A note shall be made in the record confirming that the participants in investigative and judicial actions have been informed of their rights.
4. Additions, corrections, comments, objections, motions and complaints expressed orally shall be entered into the record, while those submitted in writing shall be attached to the record. Any crossed-out or inserted words or other corrections shall be noted before the signatures at the end of the record.
5. Persons who have familiarized themselves with the record of an investigative action shall sign beneath the last line of text on each page and at the end of the record. When familiarizing themselves with a part of the record of a court hearing, they shall be entitled to sign at the end of each page or at the end of that part.
6. In the event of disagreement with comments or objections, the interrogating officer, investigator, prosecutor or court shall issue a ruling to that effect.
7. If any participant in the proceedings or other person refuses to sign the record of an investigative action in cases provided for by law, the interrogating officer, investigator or prosecutor shall make a note thereof in the record and certify it with their signature.
8. If a person refuses to sign entries concerning a judicial action made in the record of the court hearing in cases provided for by law, a note to that effect shall be made in the record and certified by the signatures of the presiding judge and the secretary of the court hearing.
9. A person who refuses to sign the record shall be entitled to explain the reason for the refusal, and such explanation shall be entered into the record.
10. If a participant in a procedural action is unable to read or sign the record personally due to physical disabilities, then, with that person's consent, the record shall be read aloud and signed by their defense counsel, representative or another individual whom they trust, and a note to that effect shall be made in the record.
11. For the purpose of recording evidence, in addition to drawing up records, sound and video recording, cinematography, photography, the making of casts, impressions, plans, diagrams and other methods of capturing information may be used. A note indicating that a participant in an investigative action or judicial proceedings has used the aforementioned methods of recording evidence shall be made, respectively, in the record of the investigative action or in the record of the court hearing, specifying the technical characteristics of the scientific and technical equipment used.
12. Audio recordings, video recordings, motion pictures, photographs, casts, impressions, plans, diagrams and other representations of the course and results of an investigative or judicial action shall be attached to the record. Each attachment shall bear an explanatory inscription indicating the name, place and date of the investigative or judicial action to which the attachment relates. During the pre-trial investigation of the case, this inscription shall be certified by the signatures of the prosecutor, interrogating officer or investigator and, where necessary, attesting witnesses, while in court it shall be certified by the presiding judge and the secretary of the court hearing.
Evidence cannot exist independently; it must be recorded, that is, properly documented. Only in this case does it acquire legal force, all participants in the proceedings become aware of its existence, and it becomes possible to work with it at subsequent stages of the criminal process. Within the meaning of Part 1 of Article 123 of the CPC, the principal working procedural document in which evidence is recorded is the record of the relevant procedural action (including investigative and judicial actions). The requirements for its preparation during the preliminary investigation and the main court hearing are provided for in Articles 199 and 347 of the CPC, taking into account the provisions and approaches regulated by the commented provision and the CPC rules concerning the preparation of records of specific investigative actions.
By establishing requirements for the form and content of the record, the law designates officials of the bodies conducting the criminal process as the persons responsible for its preparation, and in court even provides for a special position of secretary of the court hearing (Part 2 of Article 123 of the CPC). Since the court hearing is conducted by a judge (who is also the presiding judge in the case), the judge shares full responsibility for keeping the record of the court hearing together with the secretary.
As a rule, after the rights of participants in criminal proceedings have been explained to them, a procedural action is conducted and its record is drawn up, with which they must be familiarized, with the resulting consequences arising therefrom. The list of such consequences is provided in Parts 4 and 6 of Article 123 of the CPC: additions, corrections, comments, objections, motions and complaints, as well as disagreement with comments or objections (Part 3 of Article 123 of the CPC).
The law specifically stipulates the procedure for signing the record (beneath the last line of text on each page and at the end of the record of an investigative action) or a part thereof (at the end of each page or at the end of the relevant part of the record of the court hearing) after a participant in the proceedings has familiarized themselves with its contents (Part 5 of Article 123 of the CPC). This also characterizes the quality of the investigative or judicial action and, in essence, gives legal force to the record of the investigative action or court hearing.
In the event that a participant in the proceedings refuses to sign the record (Parts 7–9 of Article 123 of the CPC), regardless of the reasons, the law does not require the participation of attesting witnesses to confirm this fact, the reasons for the refusal, or the legality and validity of the procedural action (except in cases where they are themselves mandatory participants in the procedural action by law). In such cases, the relevant notes are made and signed by officials of the bodies conducting the criminal process.
The law also regulates cases in which a participant in a procedural action is unable to read or sign the record personally due to physical disabilities. Physical disabilities within the meaning of the provision of Part 10 of Article 123 of the CPC, which prevent a person from reading the record or signing it, may include blindness, illiteracy, the absence of upper limbs, etc. Physical disabilities presuppose the participation in the case of defense counsel or representatives of the victim. Therefore, when such a situation arises, with the consent of the person with physical disabilities, the record shall be read aloud and signed by their defense counsel, representative or another individual whom they trust, and a note to that effect shall be made in the record.
Unlike the record of the main court hearing, which is maintained continuously throughout the court hearing by the secretary of the court hearing and contains information about all judicial actions and decisions in the case, the record of a procedural action during the investigation of a criminal case is drawn up either during the course of that action or upon its completion, but always at the place where that action is conducted. Drawing up a record outside the place where the procedural action (including an investigative action) is conducted is inadmissible, as it may lead to abuses and falsifications and must result in its exclusion from the sources of evidence in the criminal case.
It should be borne in mind that the working, descriptive part of certain records is completed in the participants' own handwriting, except for the introductory and concluding parts, which are prepared by an official of the body conducting the criminal process. For example, after giving a free account, the person being questioned is entitled to set out their testimony in their own handwriting. After the testimony has been written out and signed by the person being questioned, the investigator may ask supplementary and clarifying questions (Part 5 of Article 212 of the CPC).
Alongside records, evidentiary information is also contained in numerous rulings issued by the bodies conducting the criminal process. Rulings (decisions) may either precede the preparation of records (for example, a ruling on conducting a search) or be issued following the documentation of procedural actions (for example, a ruling refusing to grant a motion filed as a result of an investigative action). In any event, all rulings must meet the requirements of legality and validity. The validity of a ruling, or, in other words, its reasoned nature, is based on the evidence collected in the case. The majority of lawful and well-founded rulings form part of procedural actions and must be considered together with the records. Technical media containing evidentiary information must also be regarded as part of the records of procedural actions (Parts 11 and 12 of Article 123 of the CPC), as they affect the objectivity and transparency of the process of proving the circumstances of the criminal offense committed.
In consolidated form, all evidentiary information recorded in the records and on other media is set out in the ruling terminating the criminal case, the indictment, the record of a criminal misdemeanor, the ruling on the application of summary proceedings, the procedural agreement, the judgment and the court ruling.
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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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