Commentary on Article 15. Protection of the Rights and Freedoms of Citizens in Criminal Proceedings of the Criminal Procedure Code of the Republic of Kazakhstan
1. The body conducting the criminal proceedings shall be obliged to protect the rights and freedoms of citizens participating in criminal proceedings, create conditions for the exercise thereof, and take timely measures to satisfy the legitimate requests of participants in criminal proceedings.
2. Harm caused to a citizen as a result of a violation of his or her rights and freedoms during criminal proceedings shall be subject to compensation on the grounds and in accordance with the procedure provided for by this Code.
3. Where there are sufficient grounds to believe that a victim, witness or other persons participating in criminal proceedings, as well as members of their families or other close relatives, are being threatened with murder, the use of violence, destruction of or damage to property, or other dangerous unlawful acts, the body conducting the criminal proceedings shall, within the limits of its competence, be obliged to take the measures provided for by law to protect the life, health, honour, dignity and property of these persons.
The provisions of criminal procedure law define the subjective rights and legal obligations of all participants in criminal procedural relations. However, criminal procedural relations, being relations of authority, impose on the bodies conducting criminal proceedings the obligation to provide comprehensive protection, at all stages of the proceedings, of the limits of possible and necessary conduct of participants in criminal procedural activities. This entails, firstly, the obligation of the bodies conducting criminal proceedings to explain the rights and obligations to persons participating in the proceedings and, secondly, to ensure that such persons have the opportunity to exercise those rights and obligations in the course of criminal proceedings (Article 114 of the CPC).
As a rule, the rights and obligations of participants in criminal proceedings are explained whenever their legal status in a criminal case changes, as well as before the commencement of a procedural action involving them. The seriousness of this requirement is evident from Article 112 of the CPC, which does not recognise as evidence factual data obtained through the use of a participant's misconception regarding his or her rights and obligations, where such misconception arose as a result of those rights and obligations not being explained, or being explained incompletely or incorrectly (the provision of paragraph 2 of this Article). Therefore, the body conducting criminal proceedings is obliged not merely to read out the participant's rights and obligations, but, most importantly, to explain clearly the procedure for their practical exercise.
The range of persons entitled to compensation for harm caused as a result of unlawful actions by the body conducting criminal proceedings, the types of harm subject to compensation, the procedure and legal grounds for compensation for material and moral harm, and the restoration of rights through civil proceedings are analogous to those established in cases involving violations of the principles provided for in Articles 12–14 of the CPC. At the same time, harm shall not be subject to compensation to a person if it is proven that, in the course of the pre-trial investigation of the criminal case and the court proceedings, that person, by voluntarily making a false confession against himself or herself, obstructed the establishment of the truth and thereby contributed to the occurrence of the relevant consequences (unlawful: detention, custody, house arrest, temporary removal from office, placement in a special medical institution, conviction, application of compulsory medical measures) (Part 4 of Article 38 of the CPC). This provision of the CPC fully complies with the provisions of paragraph (b) of Article 14 of the International Covenant on Civil and Political Rights, according to which, if any person has been convicted of a criminal offence and if the conviction has subsequently been reversed or the person has been pardoned on the ground that a new or newly discovered fact conclusively demonstrates that there has been a miscarriage of justice, that person, having suffered punishment as a result of such conviction, shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in due time was wholly or partly attributable to that person.
The strengthening of professionalism and organisation in criminal activity, as well as the significant material resources circulating in the criminal sphere, objectively intensify the opposition of criminals to the bodies conducting criminal proceedings. Two trends are clearly apparent in this regard: the commission of crimes against participants in criminal proceedings and their close relatives, as well as attacks on the lives of officials of the bodies conducting criminal proceedings and their close relatives.
In this regard, the CPC regulates and defines measures to ensure the safety of participants in criminal proceedings at the pre-trial and judicial stages of criminal proceedings (Articles 95–98). Furthermore, the procedure for ensuring the personal safety of witnesses, suspects, accused persons, victims and other persons participating in criminal proceedings, as well as their close relatives, is provided for by the special Law of the Republic of Kazakhstan «On State Protection of Persons Participating in Criminal Proceedings» dated 5 July 2000.
The obligation to take measures to ensure the safety of persons participating in criminal proceedings arises for the body conducting criminal proceedings from the moment criminal procedural relations arise in the course of proceedings in a case, that is, from the moment an application or report concerning a criminal offence is accepted and registered, and continues until the grounds for applying security measures objectively cease to exist. The provisions of the CPC do not prohibit ensuring security even after the completion of criminal proceedings before the judicial instances.
The Criminal Code of the Republic of Kazakhstan establishes criminal liability for obstructing the administration of justice and the conduct of a pre-trial investigation (Article 407), encroachment on the life of a person administering justice or conducting a pre-trial investigation (Article 408), threats or acts of violence in connection with the administration of justice or the conduct of a pre-trial investigation (Article 409), bribery or coercion to give false testimony or to evade giving testimony, to provide a false expert opinion or to perform an incorrect translation (Article 422), obstructing the lawful activities of lawyers and other persons engaged in protecting human and civil rights and providing legal assistance to individuals and legal entities (Article 435), and obstructing a citizen from performing the duties of a juror (Article 436).
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, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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