Commentary on Article 23. Conducting Criminal Proceedings on the Basis of Adversarial Proceedings and Equality of the Parties of the Criminal Procedure Code of the Republic of Kazakhstan
- Criminal proceedings shall be conducted on the basis of the principle of adversarial proceedings and equality of the prosecution and defence parties.
- Criminal prosecution, defence and judicial determination of a case shall be separated from one another and carried out by different bodies and officials.
- The burden of proving a person's guilt in the commission of a criminal offence and refuting that person's arguments in their defence shall be imposed on the criminal prosecution authorities and, during court proceedings, on the public and private prosecutors.
- Defence counsel shall be obliged to use all means and methods of defence of the suspect, accused, defendant, convicted person and acquitted person provided for by law.
- The court shall not be an organ of criminal prosecution, shall not act on the side of the prosecution or defence, and shall not represent any interests other than the interests of law.
- While maintaining objectivity and impartiality, the court shall be obliged to create the necessary conditions for the parties to fulfil their procedural obligations and exercise the rights granted to them.
- The parties participating in criminal proceedings shall be equal, that is, they shall be vested, in accordance with the Constitution of the Republic of Kazakhstan and this Code, with equal opportunities to defend their position. The court shall base its procedural decision only on evidence in the examination of which each party has been ensured the opportunity to participate on an equal basis.
- In the course of criminal proceedings, the parties shall independently and autonomously choose their position, as well as the methods and means of defending it, independently of the court, other bodies and persons. At the request of a party, the court shall assist it in obtaining the necessary materials in accordance with the procedure provided for by this Code.
- A public prosecutor and a private prosecutor may carry out criminal prosecution of a particular person or, in cases provided for by law, waive criminal prosecution. A suspect, accused or defendant may freely deny their guilt or plead guilty, reconcile with the victim, conclude a procedural agreement, or conclude an agreement on achieving reconciliation through mediation. A civil claimant shall have the right to withdraw the claim or conclude a settlement agreement with the civil defendant. A civil defendant shall have the right to acknowledge the claim or conclude a settlement agreement with the civil claimant.
- The court shall ensure the parties' right to participate in the consideration of a case by the courts of first instance and appellate instance; the defendant, their defence counsel and other participants in the proceedings shall be admitted to participate in the consideration of a case under cassation procedure, proceedings based on newly discovered circumstances, and the consideration of issues related to the execution of a judgment. The prosecution party must be represented by a public or private prosecutor when the court considers each criminal case. Other cases in which the parties are required to participate in the consideration of a case by the court shall be determined by this Code.
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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