Commentary on Article 2. Application in Criminal Proceedings of Legal Provisions Having Prevailing Legal Force under the Criminal Procedure Code of the Republic of Kazakhstan
1. The Constitution of the Republic of Kazakhstan shall have supreme legal force and direct effect throughout the entire territory of the Republic of Kazakhstan. In the event of a conflict between the provisions of this Code and the Constitution of the Republic of Kazakhstan, the provisions of the Constitution of the Republic of Kazakhstan shall apply.
2. In the event of a conflict between the provisions of this Code and a constitutional law of the Republic of Kazakhstan, the provisions of the constitutional law shall apply. In the event of a conflict between the provisions of this Code and other laws, the provisions of this Code shall apply.
3. International treaties ratified by the Republic of Kazakhstan shall have priority over this Code and shall be applied directly, except in cases where it follows from an international treaty that the adoption of a law is required for its application.
Understanding the content of the provisions of this Article undoubtedly follows from the preceding analysis of the provisions of Article 1 of the CPC, which contains answers to most of the questions raised by the provisions of Article 2 of the CPC. Once again, we shall refer to the rules, provisions and institutions of the Law of the Republic of Kazakhstan “On Legal Acts”, which will make it possible to determine the legal provisions having prevailing force in criminal proceedings and supplement the requirements of the provisions of Article 2 of the CPC.
In accordance with subparagraph 1) of paragraph 2 of Article 7 and paragraph 1 of Article 10 of the aforementioned Law, which regulate the principal and derivative normative legal acts, their hierarchy and their relationship to one another, the Constitution belongs to the principal type of normative legal acts and has supreme legal force throughout the territory of the Republic of Kazakhstan. Accordingly, the CPC has a lower level of legal force and occupies a position immediately after laws introducing amendments and additions to the Constitution, constitutional laws and decrees of the President having the force of constitutional law (subparagraphs 1), 2) and 3) of paragraph 2 of Article 10 of the aforementioned Law). In this chain of normative legal acts arranged according to their legal force, consolidated laws, laws of the Republic of Kazakhstan, as well as decrees of the President of the Republic of Kazakhstan having the force of law, and so forth, follow the codes (subparagraph 4) of paragraph 2 of Article 10).
Of particular value is the provision of the Law of the Republic of Kazakhstan “On Legal Acts” stipulating that each normative legal act of a lower level must not contradict normative legal acts of higher levels (paragraph 3 of Article 10). Furthermore, all normative legal acts must not contradict the normative resolutions of the Constitutional Council, the provisions of which are based exclusively on the Constitution. This explains why the normative resolutions of the Constitutional Council are situated outside the hierarchy of normative legal acts. In this capacity (outside the hierarchy), the Law has also determined the place of the normative resolutions of the Supreme Court, whose organization and activities are established by the Constitution and constitutional law. According to the Constitution, the Supreme Court, local courts and other courts are the holders of an independent judicial branch of state power (paragraph 4 of Article 3, Article 75 of the Constitution of the Republic of Kazakhstan).
Conflicts between legal provisions contained in various normative legal acts, which, unfortunately, arise due to various shortcomings in lawmaking and law enforcement activities, are resolved in accordance with the provisions of the Law of the Republic of Kazakhstan “On Legal Acts” as follows. Thus, where contradictions exist between the provisions of normative legal acts of different levels, the provisions of the act of a higher level shall apply. Where contradictions exist between the provisions of normative legal acts of the same level, the provisions of the act that entered into force later shall apply. Where the provisions of laws diverge from the provisions of codes, the provisions of laws may be applied only after the relevant amendments and additions have been made to the codes (Article 12). In this regard, the CPC stipulates that the provisions of other laws regulating the procedure for criminal proceedings are subject to incorporation into this Code (Part 1 of Article 1 of the CPC). It is fundamentally important that, for the first time, the CPC contains a special provision specifying how conflicts between its provisions are to be resolved (Part 4 of Article 10) (see the commentary on the provisions of Article 10 of the CPC).
For the analysis of the provision of Part 3 of Article 2 of the CPC, it is necessary to return to the normative resolutions of the Constitutional Council adopted in different years (extracts from which are provided above), which set out its legal positions concerning the relationship between the provisions of international and domestic legislation of the Republic of Kazakhstan. Here, we shall limit ourselves to citing the following legal positions of the body exercising constitutional jurisdiction: “1. Paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan should be understood as meaning that international treaties concluded by the Republic in accordance with the Constitution of the Republic and in the manner established by legislation, and ratified by the Parliament of the Republic through the adoption of an appropriate law, shall have prevailing legal force over the legislation of the Republic. 2. International treaties that did not provide for ratification as a condition for their entry into force and that were concluded before the adoption of the 1995 Constitution shall remain in force and retain priority over the legislation of the Republic if such priority for these international treaties is expressly provided for by the laws of the Republic regulating the relevant areas of legal relations” (Normative Resolution of the Constitutional Council dated October 11, 2000, No. 18/2, subparagraphs 1–2 of the operative part).
In this regard, it should also be borne in mind that if an international treaty stipulates the need to introduce amendments and additions to the legislation of the participating states as a condition for its application, such treaty shall not be subject to direct application. Its provisions may be applied only after the adoption of the relevant national law.
At present, in order to achieve an in-depth understanding and interpretation of the relationship between the provisions of international treaties to which the Republic of Kazakhstan is a party and the provisions of the CPC, the development of comparative provisions of these normative legal acts by the relevant state bodies and the academic legal community, primarily for the legislator, remains more relevant than ever. This will make it possible to identify shortcomings in national criminal procedural law and eliminate them in a timely manner, as well as to bring the provisions of the CPC to a new level of quality in accordance with the requirements of universal, regional and bilateral conventions, treaties and agreements.
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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