Commentary on Article 19. Presumption of Innocence of the Criminal Procedure Code of the Republic of Kazakhstan
1. Everyone shall be presumed innocent until their guilt in committing a criminal offence has been proven in the manner prescribed by this Code and established by a court judgment that has entered into legal force.
2. No one shall be obliged to prove their innocence.
3. Any insurmountable doubts concerning the guilt of a suspect, accused person or defendant shall be interpreted in their favour. Any doubts arising in the application of criminal and criminal procedure laws shall also be resolved in favour of the suspect, accused person or defendant.
4. A conviction shall not be based on assumptions and must be supported by a sufficient body of admissible and reliable evidence.
The presumption of innocence in criminal proceedings is an objective legal status, a rule that protects the accused from unlawful prosecution and conviction and embodies the high humanitarian and moral principles of criminal proceedings.
Persons arrested or held in custody on charges of a criminal offence and detained either in police stations or in prison facilities (pre-trial detention centres), but who have not yet been brought to trial or convicted, are referred to in the following rules as “untried” prisoners (Rule 111, paragraph 1). Untried prisoners shall be presumed innocent and shall be treated accordingly (Rule 111, paragraph 2). This is emphasized to law enforcement practitioners by Rule 111 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), which were approved by the United Nations General Assembly on 5 November 2015 at the 70th session of the Third Committee of the United Nations (replacing the Standard Minimum Rules for the Treatment of Prisoners adopted at the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders on 30 August 1955 and approved by the Economic and Social Council at its 994th plenary meeting on 31 July 1957).
The above-mentioned fundamental, relevant and practical provision of a universal international instrument (it would be appropriate to display this excerpt for public viewing in all criminal prosecution authorities) (author's note — M.K.) also means that, for example, the prosecutor's approval of an indictment, the committal of the accused for trial and the referral of a criminal case to court do not in any way mean that this person is guilty of committing a criminal offence. Everyone charged with a criminal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which they have been afforded all the guarantees necessary for their defence, as proclaimed in paragraph 1 of Article 11 of the Universal Declaration of Human Rights. Everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law, reiterates paragraph 2 of Article 14 of the International Covenant on Civil and Political Rights. The norms of international law have been elevated to the status of constitutional principles of justice, which a judge must follow when applying the law (subparagraphs 1, 6, 8 and 9 of paragraph 3 of Article 77 of the Constitution).
3. In accordance with the principle of the presumption of innocence, the burden of proving the existence of grounds for criminal liability and the guilt of the suspect rests with the prosecution (Part 2 of Article 121 of the CPC). Prior to trial, the burden of proving a person's guilt of committing a criminal offence rests with the prosecution (the inquiry officer, investigator, prosecutor, victim, etc.). In court, this function is performed by the prosecutor acting as the public prosecutor, as well as by the private prosecutor in cases of private prosecution (Articles 337 and 338, Chapter 47 of the CPC).
The actual process of proving a person's guilt of committing a criminal offence consists of collecting, examining, evaluating and using evidence for the purpose of establishing circumstances relevant to the lawful, well-founded and fair resolution of the case. Evidence is collected during pre-trial proceedings and judicial proceedings through investigative actions, covert investigative actions and judicial actions. The collection of evidence includes its discovery, recording and seizure. The evidence collected in a case is subject to comprehensive and objective examination. Examination includes the analysis of the evidence obtained, its comparison with other evidence, the collection of additional evidence and verification of the sources from which the evidence was obtained. Each item of evidence shall be assessed in terms of its relevance to the subject matter of proof, admissibility (it must be obtained on the basis of and in accordance with the procedure established by the provisions of the CPC), and reliability (it must accurately reflect objective reality, namely the event of the criminal offence, the circumstances in which it was committed, etc.), while all evidence collected in its entirety shall be assessed in terms of its sufficiency (whether it establishes comprehensively and accurately the circumstances constituting the subject matter of proof) for the proper resolution of the criminal case (Articles 113 and 125 of the CPC).
Proceedings in a case always involve active and adversarial activities by the prosecution and the defence in proving circumstances relevant to the proper resolution of the criminal case. In this regard, a suspect or accused person has the right, but is not obliged, to submit evidence of their innocence personally or with the assistance of their defence counsel (subparagraph 10 of Part 9 of Article 64, Part 5 of Article 65, Part 4 of Article 122 of the CPC).
In accordance with subparagraph 8 of paragraph 3 of Article 77 of the Constitution, “any doubts concerning a person's guilt shall be interpreted in favour of the accused”. This constitutional provision has been further developed in Part 3 of Article 19 of the CPC, according to which “insurmountable doubts concerning the guilt of the accused shall be interpreted in their favour. Any doubts arising in the interpretation of criminal and criminal procedure laws shall also be resolved in favour of the accused”. According to the Constitutional Council, the differences between the constitutional provision and the provision of the criminal procedure law are as follows: the law refers not to “any” doubts, but to “insurmountable” doubts; an additional provision has been introduced into the law stating that “any doubts arising in the interpretation of criminal and criminal procedure laws shall also be resolved in favour of the accused”. The provision of criminal procedure legislation requiring any doubt to be interpreted in favour of the accused applies only to doubts that could not be eliminated by the body conducting the criminal proceedings after taking all measures prescribed by law for that purpose. It is precisely those doubts that remain unresolved and cannot be eliminated in the course of criminal proceedings that must be interpreted in favour of the accused. Thus, the fact that the CPC refers to insurmountable doubts does not result in the relevant provision being inconsistent with the Constitution. The provision of the CPC stating that “any doubts arising in the interpretation of criminal and criminal procedure laws shall also be resolved in favour of the accused” is likewise consistent with the Constitution. This is due to the fact that, when drafting the criminal procedure law, including the contested provision, the legislator proceeded from the premise that the Constitution establishes the possibility of restricting human rights and freedoms only by law and only in exceptional cases (Constitutional Council Resolution No. 9 of 26 June 2003, paragraph 3, descriptive and reasoning section).
A decision recognising a person as a suspect, a decision on the legal classification of the suspect's act, a procedural agreement in the form of a plea agreement, an indictment, a protocol on a criminal misdemeanour, a decision on the application of summary proceedings, and a prosecutor's decision to commit the accused for trial contain information on the legal classification of the person's act and the process of proving the circumstances of the criminal offence committed. However, that person is still presumed innocent and has not been convicted. Their guilt may be established only by a lawful and well-founded court judgment. Moreover, such a judgment must enter into legal force, which is the fundamental condition for implementing the principle of the presumption of innocence. A judgment is deemed lawful if it has been rendered in compliance with all legal requirements and on the basis of the law. A judgment is considered well-founded if it has been rendered on the basis of a comprehensive, objective and impartial examination at the court hearing of the evidence submitted to the court by the parties (Article 388 of the CPC). A judge must not rely on the position or assessments of the prosecutor, but must independently examine the evidence. The provision of the CPC stating that a conviction may not be based on assumptions and may be rendered only where, during the trial, the defendant's guilt of committing the crime has been confirmed by the body of evidence examined by the court is particularly important (Part 3 of Article 393 of the CPC). This rule remains unchanged even if the accused has pleaded guilty. Their guilt must, in any event, be confirmed by the totality of other evidence in the case (Part 3 of Article 115 of the CPC). A judgment shall be deemed to have entered into legal force upon the expiry of fifteen days from the date of its pronouncement, provided that it has not been appealed by the parties and no motion for appeal has been submitted by the prosecutor (Part 1 of Article 418, Part 1 of Article 421 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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