Commentary on Article 22. Independence of Judges of the Criminal Procedure Code of the Republic of Kazakhstan
1. A judge, in the administration of justice, is independent and subject only to the Constitution of the Republic of Kazakhstan and the law.
2. Any interference in the activities of a court in the administration of justice is inadmissible and entails liability under the law. Judges are not accountable with respect to specific cases.
3. Guarantees of judicial independence are established by the Constitution of the Republic of Kazakhstan and the law.
Every person, in determining their rights and obligations and establishing the justification of any criminal charge brought against them, is entitled, on the basis of full equality, to have their case heard publicly and in compliance with all the requirements of fairness by an independent and impartial court, — as proclaimed in Article 10 of the Universal Declaration of Human Rights. “Everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law in the determination of any criminal charge against him”, — continues paragraph 1 of Article 14 of the International Covenant on Civil and Political Rights. The provision of Article 22 of the CPC specifies this universally recognized and constitutional principle in the field of justice (Article 77 of the Constitution), which, alongside other principles of justice, is common and uniform for all courts and judges of the Republic of Kazakhstan.
The relevance of the principle under consideration is indisputable. The general condition of the entire criminal justice system and the effectiveness of laws in the state depend on its actual legislative substance and practical implementation. As a rule, all criminal cases are and should be resolved on their merits exclusively by the court of first instance. Therefore, the professional activities of a judge of this court (as well as, indeed, judges of higher courts) must be carried out under conditions that exclude any lack of objectivity or bias on their part in a particular case. The way criminal cases are resolved in the court of first instance, and the extent to which judicial decisions in criminal cases are fair, objective and truthful, determine how the population and citizens assess the effectiveness of justice and the independence of the judiciary as a whole. In this regard, criminal proceedings involving jurors significantly enhance the independence of the judicial system and public confidence in it. At present, the state has created all the necessary conditions for judges to carry out their professional activities in criminal cases in a normal and consistent manner.
- The Constitutional Law of the Republic of Kazakhstan “On the Judicial System and Status of Judges of the Republic of Kazakhstan” establishes the fundamental provisions governing judicial independence and its guarantees. According to the provisions of this Law, judicial independence is protected by the Constitution and the law. In the administration of justice, judges are independent and subject only to the Constitution and the law. No one has the right to interfere with the administration of justice or exert any influence on judges or jurors. Such actions are punishable by law. A judge is not obliged to provide any explanations concerning the merits of judicial cases that have been considered or are pending before them. The secrecy of the deliberation room must be ensured in all cases without exception. The financing of courts, the material and social support of judges, as well as the provision of housing for them, shall be carried out from the republican budget in amounts sufficient for the full and independent administration of justice (Article 25). Judicial independence is also ensured by: 1) the procedure for the administration of justice established by law; 2) the establishment by law of liability for interference in a judge’s activities in the administration of justice, as well as for showing disrespect to the court and judges; 3) the inviolability of judges; 4) the procedure for the election and appointment of judges to office, the termination and suspension of their powers, as established by the Constitution and the aforementioned Constitutional Law, as well as the judge’s right to resign; 5) the provision, at state expense, of material support and social security corresponding to the status of judges, as well as the prohibition on reducing such support.
Judges, their family members and their property are under state protection. Internal affairs bodies are obliged to take timely and comprehensive measures to ensure the safety of a judge and their family members, as well as the preservation of their property, if the judge submits a corresponding request. Damage caused to a judge and their property in connection with their professional activities shall be compensated from the republican budget (Articles 79, 80 and 82 of the Constitution, Article 26 of the aforementioned Law). The inviolability of a judge also means that they may not be arrested, forcibly brought before a court, subjected to administrative penalties imposed through judicial proceedings, or prosecuted without the consent of the President of the Republic of Kazakhstan, based on the conclusion of the Supreme Judicial Council, and, in the case provided for in subparagraph 3 of Article 55 of the Constitution, without the consent of the Senate of the Parliament of the Republic of Kazakhstan, except in cases of detention at the scene of a crime or the commission of a serious crime. After the registration of the grounds for initiating a pre-trial investigation in the Unified Register of Pre-Trial Investigations, the pre-trial investigation may be continued only with the consent of the Prosecutor General of the Republic of Kazakhstan. In cases where a judge is detained at the scene of a crime, or where the fact of preparation for or attempted commission of a serious or particularly serious crime is established, or where the judge has committed a serious or particularly serious crime, the pre-trial investigation against that judge may be continued before obtaining the consent of the Prosecutor General of the Republic of Kazakhstan, provided that the Prosecutor General is mandatorily notified within twenty-four hours. Special operational-search measures and covert investigative actions against a judge may be carried out in accordance with the procedure established by the legislative acts of the Republic of Kazakhstan (paragraph 2 of Article 79 of the Constitution, Article 27 of the Constitutional Law of the Republic of Kazakhstan “On the Judicial System and Status of Judges of the Republic of Kazakhstan”, Articles 550 and 552 of the CPC, paragraph 7 of Article 12 of the Law of the Republic of Kazakhstan “On Operational-Search Activities”).
Clarification of certain aspects of the principle of judicial independence was reflected in the special Regulatory Resolution of the Supreme Court dated May 14, 1998, No. 1, “On Certain Issues Concerning the Application of Legislation on Judicial Power in the Republic of Kazakhstan”. In this regard, the Supreme Court ruled that courts must pay particular attention to issues of judicial independence, take measures to prevent interference in judicial activities, and suppress attempts to exercise control over judges or impose duties on them that are not inherent in their powers. According to the Supreme Court, interference in the activities of a court should be understood as any form of influence on a judge aimed at obstructing the administration of objective and impartial justice in a particular case. Such forms of interference may include, in particular, direct instructions or indirect requests by any person to adopt a decision in favor of a particular party to judicial proceedings, the deliberate creation of conditions under which a judge is compelled to adopt a particular decision, and other similar actions. Furthermore, placing a case pending before a court under the control of state bodies or their officials should also be regarded as interference in judicial activities aimed at obstructing the administration of justice (paragraph 4 of the aforementioned Resolution).
Judicial independence is also guaranteed by the CPC, which serves as a working instrument for judges. It contains numerous institutions, provisions and rules that actually ensure guarantees of judicial independence in criminal proceedings. I will cite only some of them. Thus, a judge considering a case as part of a panel of judges enjoys equal rights with the presiding judge and other judges when deciding all issues arising in connection with the case under consideration (Part 2 of Article 54 of the CPC); a judgment that has entered into legal force, as well as any other court decision in a criminal case that has entered into legal force, is binding on all state bodies, individuals and legal entities with regard both to the circumstances established therein and to their legal assessment, in relation to the person against whom they were issued (the binding nature and incontestability of judicial decisions); a resolution of a criminal prosecution body, subject to the exceptions provided for by law, is not binding on the court (Parts 1 and 4 of Article 127 of the CPC); all evidence in a case must be examined directly at the court hearing, the judicial investigation is not a blind copy of the pre-trial investigation, and the judge has the right, on their own initiative, to expand the scope of evidentiary material in a criminal case (Articles 331, 364–382 of the CPC); a judge who remains in the minority has the right to set out their dissenting opinion in writing in the deliberation room, and higher judicial instances may examine it when reviewing the criminal case at the relevant instance (Part 2 of Article 54 of the CPC); when referring a criminal case for a new trial, appellate or cassation instances may not prejudge issues or conclusions that may be reached by the court during the new consideration of the case, prejudge questions concerning whether the accusation has been proven or not proven, the reliability or unreliability of any particular evidence and the superiority of one item of evidence over another, the application by the court of first instance of a particular criminal law or the measure of punishment, or prejudge any conclusions that may be reached by the court (Articles 431, 494, 663–665 of the CPC).
State activities related to the administration of justice are protected by the provisions of criminal law. The Criminal Code establishes criminal liability for obstructing the administration of justice and the conduct of a pre-trial investigation (Article 407); encroaching upon 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); contempt of court (Article 411); defamation of a judge (Article 411); and failure to execute a court sentence, court decision or other judicial act, or an enforcement document (Article 430).
Commentary on the Criminal Procedure Code of the Republic of Kazakhstan, 2020 edition, by Marat Chekishuly Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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