Commentary on Article 124. Examination of Evidence of the Criminal Procedure Code of the Republic of Kazakhstan

Evidence collected in a case shall be examined comprehensively and objectively. Examination includes the analysis of the evidence obtained, its comparison with other evidence, the collection of additional evidence for the purpose of verifying it, and the verification of the sources from which the evidence was obtained.

The second stage of the evidentiary process is the examination of evidence, which is carried out, in practice, after almost every instance of discovery, recording, and seizure of new evidence. For example, having questioned a person as a witness, the investigator, through a detailed and comprehensive examination (analysis) of that person's testimony, may establish that it is sufficient to determine a particular circumstance forming part of the subject matter of proof in a criminal case (Article 113 of the CPC). As a result of comparing this evidence with other evidence, the investigator may identify its strengths and weaknesses, the procedure for using it in the indictment, etc. Such testimony may serve as grounds for conducting an additional examination of that person as a witness or as a basis for summoning another person and questioning that person as a witness, obtaining other evidence in the case through investigative actions, sending requests to organizations, issuing assignments and instructions to the bodies of inquiry in the case regarding the conduct of covert investigative actions, etc. In a number of cases, a witness's testimony may serve as a procedural means of verifying the testimony of other persons involved in the case or other sources of evidence, for example, by conducting verification and clarification of testimony at the scene, a confrontation, etc.

The examination of evidence continues at all stages of criminal proceedings. For example, all evidence obtained during the preliminary investigation is subject to direct examination at the main court hearing (Part 1 of Article 331 of the CPC), which objectively cannot constitute a repetition of investigative work, since the process of working with evidence here takes place exclusively through the methods of judicial investigation (Articles 364–382 of the CPC).

3. The examination of evidence available in the case and additionally submitted by the parties falls within the powers of the appellate court (appointment of expert examinations, requesting documents, questioning witnesses and victims (Articles 424, 430 of the CPC)), as well as, within the limits established by law, the powers of the cassation court (Parts 17–18 of Article 494 of the CPC).

4. The examination of evidence, within the limits of its competence, may continue during the review, under cassation procedure, of court decisions that have entered into legal force.

In explaining this aspect of the activities of the cassation court, the Supreme Court indicated that the conclusions of the cassation court regarding the legality and validity of judgments and rulings that have entered into legal force must be based on the materials of the case and must not rely on materials that are not contained in the case file. A court examining a case under cassation procedure is not entitled to consider facts proven where information concerning them, although contained in the case materials, was not examined by the courts of first instance and appeal and was not established in the judgment or ruling, or was rejected by the court. When considering a case upon a transferred petition, the cassation court verifies all the arguments of the petition in their entirety.

The cassation court is not vested with the right to establish the existence or absence of evidence necessary for the proper resolution of the case. Circumstances that arose after the judgment entered into legal force cannot be the subject of consideration by the cassation court, since they were not and could not have been considered by the courts of first instance and appeal. Additional materials attached to a petition, protest, or submission, which are relevant to the case and indicate the erroneous application by the courts of first instance or appeal of substantive or procedural law, the reliability and admissibility of the evidence used by the court to establish the proof (or lack of proof) of the accusation, the role and degree of guilt of the convicted person, the absence of guilt of the acquitted person, and other circumstances affecting the proper resolution of the case, may serve as grounds for setting aside the judgment and referring the case for a new court hearing. The limits of consideration of a case by the cassation court, as set out in Article 494 of the CPC, are exhaustive and are not subject to broad interpretation. At the same time, it should be borne in mind that the court is not bound by the arguments of the petition, protest, or submission and is entitled, going beyond their limits, to examine the entire proceedings in the case in full and adopt a decision that improves the position of the convicted person (acquitted person). Petitions for the application of the provisions of Article 6 of the Criminal Code on the retroactive effect of criminal law, or an act of amnesty, are not considered under cassation procedure, since the resolution of these matters falls within the jurisdiction of courts operating at the place where the judgment is enforced. At the same time, in cases where the case is considered on the grounds provided for in Article 485 of the CPC and circumstances are simultaneously identified that make it possible to apply the provisions of Article 6 of the Criminal Code or an act of amnesty, the cassation court shall adopt a decision applying the aforementioned provisions of law (paragraphs 19–20, 22 of Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan dated June 29, 2017, “On the Procedure for Proceedings in Criminal Cases in the Cassation Court,” Article 494 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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