Commentary on Article 125. Assessment of Evidence of the Criminal Procedure Code of the Republic of Kazakhstan

1. Each item of evidence shall be assessed in terms of its relevance, admissibility and reliability, while all evidence collected, taken as a whole, shall be assessed in terms of its sufficiency for the resolution of the criminal case.

2. In accordance with Article 25 of this Code, a judge, prosecutor, investigator and interrogating officer shall assess evidence according to their inner conviction, based on a comprehensive, complete and objective examination of the evidence in its entirety, guided by the law and their conscience.

3. Evidence shall be deemed relevant to the case if it constitutes factual data that confirms, refutes or casts doubt on conclusions concerning the existence of circumstances that are significant to the case.

4. Evidence shall be deemed admissible if it has been obtained in accordance with the procedure established by this Code.

Evidence shall be deemed reliable if, as a result of its verification, it is established that it corresponds to reality.

5. The body of evidence shall be deemed sufficient for the resolution of a criminal case if relevant, admissible and reliable evidence has been collected that establishes the truth regarding all and each of the circumstances subject to proof, without any doubt and beyond dispute.

Note. Article 125 was amended by Law of the Republic of Kazakhstan No. 180-VI dated 12 July 2018 (shall enter into force upon the expiration of ten calendar days after the date of its first official publication).

The third (conditionally speaking) stage of the process of proof is the assessment of evidence, that is, the determination of its quality (value) in a particular case, carried out by a judge, prosecutor, investigator or interrogating officer according to their inner conviction, based on a comprehensive, complete and objective examination of the evidence in its entirety, guided by the law and their conscience (see also the commentary on the provisions of Article 25 of the CPC).

In this regard, in order to meet the requirements of quality and effectiveness, each item of evidence must possess a specific set of characteristics (properties): it must be relevant to the criminal case, admissible as evidence in that case, and reliable (trustworthy) (Parts 1–2 of Article 125 of the CPC).

The provision of Part 3 of Article 125 of the CPC regulates such a property of evidence as its relevance to the case. This property is directly connected with the circumstances subject to proof in the criminal case (Article 113 of the CPC). That is, when assessing evidence, it is necessary to establish a connection between that evidence and a circumstance included in the subject matter of proof. If such a connection exists, the evidence is relevant to the criminal case in question. If the evidence does not contribute to establishing the matters specified in Article 113 of the CPC (the subject matter of proof), it is excluded from the evidentiary process; in other words, it is not used.

Even evidence that is relevant to the case may cease to be admissible if it was not previously obtained on the basis of the provisions and in accordance with the procedure established by the CPC. In other words, the identification, securing and seizure of evidence must be carried out in strict compliance with the procedural form governing the conduct of procedural actions (including investigative and judicial actions) (see also the commentary on the provisions of Article 112 of the CPC). This is the essence of the admissibility of evidence in the process of pre-trial investigation and judicial proceedings in a criminal case (Part 4 of Article 125 of the CPC).

However, the first two properties of evidence are clearly insufficient, as the law also provides for a third quality, namely reliability. That is, relevant and admissible evidence must also be verified for its reliability and correspondence to what it establishes, refutes or casts doubt upon. For example, a witness's testimony may be verified through other investigative actions (seizure, search, etc.). An expert's opinion is verified, where there are grounds for doing so, by means of an additional or repeated expert examination, and so forth (Part 5 of Article 125 of the CPC).

If the evidence collected and examined meets the above-mentioned characteristics, all such evidence taken together, rather than each item individually, may serve as the basis for the adoption of certain procedural decisions and the performance of certain actions by the body conducting the criminal proceedings. For example, it may serve as grounds for conducting investigative actions, applying procedural coercive measures, issuing a decision to terminate a criminal case, qualifying the act of a suspect, drawing up a protocol on a criminal misdemeanor, issuing a decision on the application of summary proceedings, preparing an indictment, delivering a judgment, and so forth. At the same time, within the meaning of the provisions of Parts 1 and 6 of Article 125 of the CPC, the body of evidence is neither a mechanical nor an arithmetic accumulation of different items of evidence. The body of evidence must possess such an important property as sufficiency for resolving the relevant issues of the criminal case. The sufficiency of admissible and reliable evidence presupposes a system of such evidence in terms of quantity, quality, depth of explanation, absence of doubts, conclusiveness and internal substance, which does not require the further collection of evidence, since the evidence already collected is entirely sufficient for making lawful and well-founded decisions and carrying out actions in the case.

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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