Commentary on Article 25. Assessment of Evidence Based on Inner Conviction of the Criminal Procedure Code of the Republic of Kazakhstan
1. A judge, prosecutor, investigator, and inquiry officer shall assess evidence according to their inner conviction, based on the totality of the evidence examined, while being guided by the law and conscience.
A juror shall assess evidence according to their inner conviction, based on the totality of the evidence examined, while being guided by conscience.
2. No evidence shall have predetermined force.
The assessment of evidence is also a classical principle of criminal procedure, which is closely connected with other principles, especially the presumption of innocence. As the conditional third element or stage of the process of proving (Part 1 of Article 121 of the CPC), its task is to determine the quality of the evidence obtained. This is assessed from the standpoint of its relevance (to the subject matter of proof in the case), admissibility (obtaining it in accordance with the rules and procedures prescribed by the CPC), reliability (correspondence to the actual state of affairs), and the sufficiency of the entire body of evidence in the case (in terms of the needs of criminal proceedings) for the proper resolution of the criminal case. In other words, the assessment of evidence precedes its use. Speaking about the process of proving, it should also be noted that all its elements generally manifest themselves simultaneously. For example, during an interrogation, an investigator may collect evidence, examine evidence, assess evidence, and use evidence. Or, for instance, having obtained, examined, and assessed certain volumes of evidentiary information, the investigator uses them, for example, by making procedural decisions on the termination or suspension of a criminal case, the application of procedural coercive measures, the legal classification of the suspect's act, and so on. Therefore, the division of the process of proving into four major elements or stages has been made solely for the purpose of fully understanding the substantive aspects of the investigator's procedural and cognitive activities in criminal proceedings as a whole and in relation to individual procedural actions and procedural decisions in particular.
The CPC places the assessment of evidence in direct dependence on the inner conviction of the body conducting the criminal proceedings. The inquiry officer, investigator, prosecutor, and judge must be firmly convinced that each item of evidence individually and the entire body of evidence meet the quality requirements set out above, that is, that the process of identifying and discovering them was carried out in accordance with the CPC and on the basis of the CPC provisions. In addition to compliance with legal requirements, the assessment of evidence must simultaneously be based on the conscience of the official conducting the criminal proceedings, as a moral category. Conscience enhances their moral and professional responsibility for the reliability of the results of the assessment of evidence.
3. A juror is also not exempt from the process of assessing evidence, with the only difference being that they base all their personal conclusions concerning the criminal case (their answers to the questions put before the jury) on their participation in the examination of evidence during the main court hearing, while being guided by conscience. Various forms of participation in the examination of evidence considered in court constitute a right, but not an obligation, of a juror. Therefore, by making the juror's conscience, in addition to inner conviction, confidence in the correctness of their own position, and the totality of the evidence examined, the basis for assessing evidence, the legislator thereby imposes on them a high degree of moral and civic responsibility for the proper resolution of the criminal case.
Each item of evidence can be understood and assessed only in connection with the totality of all evidence in the case — this is an immutable rule of the process of proving. No matter how compelling it may appear, such evidence is considered merely as an ordinary item of evidence, and nothing more. The accused's confession of guilt, sometimes interpreted as the “queen of evidence,” is taken as the basis for the accusation only when it is corroborated by the totality of other evidence available in the case (Part 3 of Article 115 of the CPC); the testimony of a witness or victim shall not constitute evidence if they cannot identify the source of their knowledge (Part 5 of Article 115 of the CPC), nor shall statements made by persons who are not subject to examination as witnesses constitute evidence (Part 2 of Article 78, Part 6 of Article 115 of the CPC). The legal force of evidence is practically verified at each new stage of criminal proceedings. This is the uniqueness and strength of criminal procedure, in which entirely different bodies and officials participate in the process of assessing evidence, using methods of procedural activity specific to each of them.
The issues of evidentiary law in criminal cases are addressed in the special Regulatory Resolution of the Supreme Court dated April 20, 2006, No. 4, “On Certain Issues of the Assessment of Evidence in Criminal Cases.” The relevance of this issue of criminal procedural law for all law enforcement practitioners is evident from the fact that the Supreme Court, first and foremost, obliges all bodies conducting criminal proceedings to strictly observe the principles established by the Constitution and the provisions of the CPC when assessing evidence. Their violation, — it states, — depending on its nature and materiality, entails the consequences specified in Article 9. In such cases, the court must substantiate in its judgment (ruling) the nature and materiality of the violated principle (paragraph 1 of the aforementioned Regulatory Resolution of the Supreme Court).
The legislator's profound understanding of the inviolability of objectivity in the assessment of evidence is demonstrated by the extensive protection of this sphere of justice through the provisions of criminal law. The Criminal Code establishes criminal liability for coercion to give testimony (Article 415), torture in the course of proceedings (Article 146), falsification of evidence and operational-search materials (Article 416), and so on.
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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