Commentary on Article 21. Administration of Justice on the Basis of Equality Before the Law and the Court of the Criminal Procedure Code of the Republic of Kazakhstan

1. Justice shall be administered on the basis of the equality of everyone before the law and the court.

2. In the course of criminal proceedings, no one may be subjected to any discrimination on the grounds of origin, social, official or property status, sex, race, nationality, language, attitude towards religion, beliefs, place of residence, or any other circumstances.

3. The conditions of criminal proceedings in respect of persons who enjoy privileges or immunity from criminal prosecution shall be determined by the Constitution of the Republic of Kazakhstan, this Code, laws and international treaties ratified by the Republic of Kazakhstan.

The provisions of the CPC reproduce the corresponding constitutional principle (Article 14 of the Constitution), as well as a principle of international law. “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty”, proclaims Article 2 of the Universal Declaration of Human Rights. “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, everyone shall be entitled to ... a fair and public hearing by a competent, independent and impartial tribunal established by law”, continues paragraph 1 of Article 14 of the ICCPR. “All persons are equal before the law”, develops this provision Article 26 of the ICCPR, “and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

Equality before the law means that, regardless of the subject of the criminal offence and the nature of the criminal offence, the body conducting the criminal proceedings is obliged to strictly comply with the institutions, rules and provisions of the CPC in the course of proceedings in a case. In terms of its content, this principle is addressed primarily to the bodies and officials conducting criminal proceedings, since it is precisely they who are entrusted with ensuring compliance with the requirements of the principle in actual criminal proceedings in each individual criminal case. They are obliged not only to explain to a participant in criminal proceedings the entirety of his or her rights and obligations in a particular criminal case, but, above all, to create the necessary and equal conditions for the fullest possible exercise, at all stages of the proceedings, by each participant of the legal capacity and capacity to act inherent exclusively to that participant.

3. In turn, equality before the court (as well as before other bodies conducting criminal proceedings) means equal access (without any exceptions) for all subjects of criminal procedural activity to judicial protection of their rights and legitimate interests. This right and principle are implemented through the judicial system established in accordance with the Constitution and the Constitutional Law of the Republic of Kazakhstan “On the Judicial System and Status of Judges of the Republic of Kazakhstan”, the determination of the jurisdiction of criminal cases by the courts of the Republic, and the possibility of pre-trial appeal against procedural decisions and actions of criminal prosecution bodies. Equality before the court is also ensured by the existence of an extensive system of criminal prosecution bodies, whose function is to detect and investigate criminal offences within their competence and to refer criminal cases to courts empowered to examine them on the merits or solely on legal grounds.

At the same time, it must be acknowledged that the CPC contains certain deviations from the rules of this principle which, however, do not create any advantages for those to whom they apply in criminal proceedings, but are caused by the age-related and psychological characteristics of a person, the reduced degree of his or her capacity to act, depend on these factors and are aimed at effectively protecting his or her rights and legitimate interests (for example, minors and persons in need of compulsory treatment), or are обусловлены by the specific nature and guarantees of the independence of their professional activities (the Prosecutor General, the Chairperson and members of the Constitutional Council, judges of the Republic, Members of Parliament, persons enjoying immunity from criminal prosecution and the administration of justice in the host country) (see also the commentary on Articles 6 and 546—556 of the CPC). No special pre-trial investigation bodies or courts exist for the listed subjects of criminal proceedings. If the said persons commit criminal offences, their acts are investigated and examined by the courts on general grounds and in accordance with the procedure regulated by the CPC.

While unconditionally prohibiting discrimination against any participant in criminal proceedings on various grounds, the Universal Declaration of Human Rights, the ICCPR, the Constitution and the CPC do not limit the list of possible grounds for such discrimination. Therefore, any other circumstances (grounds for discrimination) mentioned in the provision of the law (Part 2 of Article 21 of the CPC) should also include cases where bodies conducting criminal proceedings fail to observe procedural safeguards for particularly vulnerable persons (women, adolescents, persons with mental disorders, elderly persons, ethnic minorities, sick persons, people of a different sexual orientation, convicted persons, as well as other vulnerable groups or individuals).

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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