Commentary on Article 29. Publicity of Criminal Proceedings of the Criminal Procedure Code of the Republic of Kazakhstan
1. Judicial proceedings in criminal cases in all courts and judicial instances shall be conducted openly. Restriction of the publicity of judicial proceedings shall be permitted only where it is contrary to the interests of protecting state secrets and other secrets protected by law. Closed judicial proceedings shall be permitted pursuant to a reasoned court ruling in cases involving criminal offences committed by minors, cases involving sexual offences, and other cases for the purpose of preventing the disclosure of information concerning the intimate aspects of the lives of persons participating in the case, as well as where required by the security interests of the victim, witness or other persons participating in the proceedings, as well as their family members or close relatives. Complaints against actions (inaction) and decisions of the body conducting criminal prosecution, considered by an investigating judge, shall also be examined in a closed court hearing.
2. Proceedings in a closed court hearing shall be conducted in compliance with all the rules established by this Code.
3. The court judgment and rulings adopted in the case shall, in all circumstances, be publicly pronounced. In cases considered in a closed court hearing, only the introductory and operative parts of the judgment shall be publicly pronounced.
The principle of publicity occupies an important place in the system of principles of criminal proceedings, defines the limits of openness and access to proceedings in a case, and contributes to the implementation of the educational and preventive foundations of criminal proceedings. It is no secret that pre-trial investigations of criminal cases are somewhat closed in nature, and this has been further reinforced by the introduction of the institution of covert investigative actions. This is also обусловлено by the direct requirement of the CPC, which prohibits participants in criminal proceedings from disclosing information concerning the pre-trial investigation (Article 201). This is a quite reasonable requirement in relation to all criminal cases that have not yet been the subject of the main court hearing. At the same time, upon completion of a criminal case, criminal prosecution authorities are entitled to submit a representation to the relevant state bodies, organizations and persons performing managerial functions within them, concerning the adoption of measures to eliminate these circumstances or other violations of the law (Part 1 of Article 200 of the CPC). Consequently, some information concerning the case nevertheless becomes available to society and the public.
4. The provisions of Article 29 of the CPC regulate several possible grounds for conducting closed judicial proceedings: where this is necessitated by the interests of protecting state secrets and other secrets protected by law; in cases involving crimes committed by minors; in cases involving sexual crimes; in other cases where it is necessary to prevent the disclosure of information concerning the intimate aspects of the lives of participants in the proceedings; where this is necessitated by considerations of ensuring the safety of participants in criminal proceedings; and when an investigating judge exercises judicial control over the legality of actions and decisions of criminal prosecution authorities at the pre-trial stages.
The CPC requires the court to provide substantial reasoning for the necessity of conducting closed judicial proceedings, both on its own initiative and upon a motion of the parties. This issue is also emphasized in Regulatory Resolution No. 25 of the Supreme Court dated December 6, 2002, “On Compliance with the Principle of Publicity of Judicial Proceedings in Criminal Cases”. “Unlawful restriction of publicity (unjustified classification of case materials, holding closed hearings on grounds not provided for by law, etc.),” the Supreme Court emphasizes, “may result in the diminishing and infringement of the procedural rights of participants in the proceedings. Depending on the nature and materiality of such violations, the proceedings conducted in the case may be declared invalid, with the decision rendered being overturned, or the collected materials may be declared inadmissible as evidence” (paragraph 2 of the Regulatory Resolution of the Supreme Court).
3. Restriction of the publicity of judicial proceedings may extend to the entire period of the court hearing or only to that part of it during which the circumstances specified in Part 1 of Article 29 of the CPC are examined, which must be indicated in the judge’s ruling scheduling the main court hearing, etc. (paragraph 7 of the Regulatory Resolution of the Supreme Court dated December 6, 2002, “On Compliance with the Principle of Publicity of Judicial Proceedings in Criminal Cases”).
1. The judgment and rulings adopted in the case shall always be publicly pronounced. However, in a case considered in a closed court hearing, their descriptive and reasoning part shall not be announced. In cases considered in a closed court hearing, only the introductory and operative parts of the judgment shall be publicly pronounced (paragraphs 9–10 of Regulatory Resolution No. 3 of the Supreme Court dated December 13, 2013, “On the Application in Criminal Proceedings of Certain Provisions of Legislation Regulating Issues of State Secrets Protection”).
2. Since judicial power is a branch of state power, a judgment shall be rendered in the name of the Republic of Kazakhstan. “A judicial judgment,” the Supreme Court states, “is the most important act of the application of law, which summarizes all the preceding proceedings in the case (preamble). The rendering of a judgment in the name of the state and its significance require judges to recognize their special responsibility for its legality and substantiation” (paragraph 1 of Regulatory Resolution No. 4 of the Supreme Court dated April 20, 2018, “On the Judicial Judgment”).
1. In the context of the foregoing, it should be noted that the provisions of Part 4 of Article 347-1 of the CPC do not restrict the operation of this principle, since they concern closed court proceedings and are primarily addressed to the judge and the court hearing secretary. Audio and video recordings of court hearings may be made public by participants in the main court proceedings, including through publication in the mass media, but only after the judgment or court ruling has entered into legal force (see the commentary to Part 4 of Article 347-1 of the CPC).
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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