Commentary on Article 24. Comprehensive, Complete and Objective Examination of the Circumstances of the Case of the Criminal Procedure Code of the Republic of Kazakhstan

1. The court, prosecutor, investigator, and inquirer are obliged to take all measures provided for by law to ensure a comprehensive, complete, and objective examination of the circumstances necessary and sufficient for the proper resolution of the case. In doing so, the court examines the evidence available in the case file and the evidence submitted by the methods prescribed by this Code. The court shall not be entitled, on its own initiative, to collect additional evidence for the purpose of remedying the incompleteness of the pre-trial investigation.

2. The criminal prosecution authorities identify factual data on the basis of which the circumstances relevant to the case are established.

3. The court hearing a criminal case, while maintaining objectivity and impartiality, shall create the necessary conditions for the prosecution and defence parties to exercise their rights to a comprehensive and complete examination of the circumstances of the case.

4. The court is not bound by the opinions of the parties on matters concerning the necessity and sufficiency of examining the evidence available in the case file and the evidence submitted by the parties at the court hearing, except in the cases provided for in the second part of Article 380 of this Code.

5. The circumstances that incriminate or exonerate the suspect, accused, or defendant, as well as those that mitigate or aggravate their liability and punishment, shall be established in the case. The body conducting the criminal proceedings must verify all statements concerning innocence or a lesser degree of guilt, as well as the existence of evidence exonerating the suspect, accused, or defendant or mitigating their liability, and statements concerning the use of unlawful investigative methods in the collection and recording of evidence.

This concerns a classical principle of criminal proceedings, which is also organically connected with and implemented subject to compliance with the other principles of the process. The thrust of this principle is directed against bias, as well as an accusatory approach in the proceedings. The fundamental ideas of the principle primarily regulate the standards of conduct that all bodies conducting criminal proceedings must adhere to during the proceedings. In essence, they are set out in Parts 4 and 5 of Article 24 of the CPC and boil down to establishing both the favourable and unfavourable aspects of a criminal case, that is, everything that incriminates or exonerates the accused and aggravates or mitigates their liability and punishment.

In order to fulfil the requirements of the principle under consideration, the bodies conducting criminal proceedings use a wide range of means of proof, including investigative and judicial actions, create conditions for the full exercise by participants in the proceedings of their legal capacity, and engage specialists and experts. Since the court is not a party to criminal proceedings, it is not entitled to take personal initiative in collecting evidence, as this would contradict the ideology of the principle of adversarial proceedings and equality of the parties in the case. Therefore, the incompleteness of an investigation, which, as a rule, results from the failure to establish all the circumstances subject to proof in the case (Article 13 of the CPC), as well as from the failure to conduct all investigative actions that should have been conducted in the case, is always a compelling ground for the court to refer the criminal case to the prosecutor from the stage of preparing the case for trial or from the main court proceedings in cases involving an expedited pre-trial investigation, as well as cases in which a procedural agreement has been concluded (Article 323 of the CPC). In turn, the incompleteness of the judicial investigation admitted by the court of first instance may serve as grounds for the annulment or modification of the judgment of the court of first instance on appeal; and if this circumstance is established in the activities of the appellate court, it may serve as grounds for the annulment or modification of the judgment or ruling of that court at the cassation stage, and so forth (Articles 433, 434, 494 of the CPC).

3. At the same time, the task of the court is to examine the evidence submitted to it by the parties, which is by no means the same as collecting evidence by methods inherent to the parties to criminal proceedings. In order to fulfil this mission, the court is entitled to conduct judicial actions not for the purpose of collecting evidence (since such evidence is already contained in the case file), but specifically for the purpose of examining it in accordance with the procedure provided for in Article 124 of the CPC, with a view to adopting a lawful and well-founded judicial decision. The opposite would mean that the court duplicated the work of the prosecution and defence parties in the pre-trial criminal proceedings and would distort the essence of the function of administering justice, namely, the judicial resolution of a criminal case on its merits. In this regard, subject to the exceptions provided for by law, the court, while not being bound by the opinions of the parties on matters concerning the necessity and sufficiency of examining the evidence available in the case file and submitted by the parties at the court hearing, is entitled to demonstrate reasonable initiative in the interests of the law in order to establish the truth in the case and to conduct, during the trial, the necessary judicial actions aimed exclusively at examining the evidence in the case (inspection of the locality and premises, presentation for identification, examination of a person, verification and clarification of testimony at the scene, conducting an experiment, obtaining samples, ordering an expert examination — Articles 373, 378–379 of the CPC).

The court of cassation has a somewhat different range of procedural powers, as it generally does not conduct judicial actions falling within the competence of lower courts. However, it (the cassation court) is entitled, on its own initiative or at the request of the parties, to request documents relating to the health condition, family status, and previous convictions of the convicted person; information necessary to determine the application of the law in time and space and to establish whether the court of first instance and the appellate court correctly applied the provisions of criminal and criminal procedure legislation when resolving the case. It is also entitled, before the preliminary consideration of a petition for review of a judicial decision or during the preparation for the judicial consideration of such a petition, to request a scientific opinion from an appropriate specialist concerning the provisions of the laws applied in the criminal case under consideration and, if necessary, to summon that specialist to a hearing of the cassation judicial panel to provide explanations on the matter (Part 3 of Article 490, Part 2 of Article 492 of the CPC).

At the same time, a somewhat different scope of powers of the court of cassation and the procedural methods applied by it when assessing the legality of judicial acts of lower courts are established by Part 18 of Article 494 of the CPC. Under this provision, upon the submission of the Chairperson of the Supreme Court of the Republic of Kazakhstan or the protest of the Prosecutor General of the Republic of Kazakhstan, this instance, on the basis of the materials available in the criminal case and additionally submitted by the parties, fully verifies the correctness of the establishment of the factual circumstances of the case and the application of criminal law, compliance with the provisions of criminal procedure law in the course of the proceedings, and the legality and validity of the judgment or ruling of the courts of first instance, appeal, and cassation. In other words, in this case, the powers of the court of cassation and the methods of its procedural activities practically reproduce the powers and methods of procedural activity of the appellate court (Articles 424, 427, Parts 4 and 6 of Article 429 of the CPC).

An analysis of the operation of the principle under consideration cannot be conducted in isolation from procedural time limits. The existing time limits for the investigation of a criminal case and judicial proceedings make it possible to conduct a comprehensive (detailed), complete (exhaustive), and objective (impartial) examination of the circumstances subject to proof in a criminal case (Articles 113, 192, Part 5 of Article 322 of the CPC). The wording contained in Part 1 of Article 24 of the CPC, according to which measures for examining the circumstances of a case must be necessary and sufficient, relates to the limits of proof in a criminal case, in other words, to the depth and accuracy of establishing each of the circumstances subject to proof in a criminal case (Article 113 of the CPC).

The fact is that in examining the circumstances subject to proof in a criminal case and constituting the subject matter of proof in any criminal case (Article 113 of the CPC), there are always certain boundaries, that is, limits to the proof of all or individual such circumstances. Otherwise, criminal proceedings would turn into an endless marathon and undue delays in the criminal case. Therefore, the CPC distinguishes between circumstances established without evidence (Article 114), while in all other cases it establishes certain limits. For example, the grounds for commencing a pre-trial investigation in a criminal case are sufficient data indicating the signs of a criminal offence, in the absence of circumstances precluding proceedings in the case (Part 1 of Article 180 of the CPC). This means that, at the time of registration of an application or notification in the Unified Register of Pre-Trial Investigations, it is not necessary for all elements of the composition of the criminal offence (the circumstances subject to proof in the case) to be reflected therein; when it is necessary to qualify the act of a suspect, the investigator must have sufficient evidence providing grounds for issuing a reasoned resolution on this matter (Part 1 of Article 203 of the CPC); the investigator's notification to participants in the criminal proceedings that investigative actions have been completed, together with the explanation of their right to familiarise themselves with the materials of the criminal case, becomes possible when all circumstances subject to proof in the case have been established (Part 1 of Article 294 of the CPC); a court judgment is recognised as well-founded if it is delivered on the basis of a comprehensive and objective examination at the court hearing of the evidence submitted to the court (Part 3 of Article 388 of the CPC), and so forth.

In order to prevent injustice, one-sidedness, and bias in criminal proceedings, the bodies conducting criminal proceedings are obliged, in the course of the proceedings, to establish both the circumstances mitigating criminal liability and punishment and those aggravating criminal liability and punishment. This is a requirement of the Criminal Code. And if the list of aggravating circumstances is exhaustive (Article 54 of the Criminal Code), this does not apply to the list of mitigating circumstances. Circumstances not specified in Article 53 of the Criminal Code may also be recognised as mitigating circumstances.

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan dated 4 July 2014, 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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