Commentary on Article 3. Territorial Application of the Criminal Procedure Law of the Criminal Procedure Code of the Republic of Kazakhstan
1. Criminal proceedings on the territory of the Republic of Kazakhstan, regardless of the place where the criminal offense was committed, shall be conducted in accordance with this Code.
2. If an international treaty ratified by the Republic of Kazakhstan establishes other rules governing the territorial application of this Code, the rules of the international treaty shall apply.
It follows from the provision of Part 1 of Article 3 that the application of the CPC extends throughout the entire territory of the Republic of Kazakhstan. This is consistent with the status of this normative legal act within the system of current law of the Republic of Kazakhstan and the legal powers of the Parliament of the Republic of Kazakhstan. In this regard, Paragraph 1 of Article 47 of the Law of the Republic of Kazakhstan “On Legal Acts” provides: “Normative legal acts of the Republic of Kazakhstan adopted by the President of the Republic of Kazakhstan, the Parliament of the Republic of Kazakhstan, the Government of the Republic of Kazakhstan, central executive and other central state bodies shall apply throughout the entire territory of the Republic of Kazakhstan, unless otherwise established in the normative legal acts themselves or in the acts on their entry into force.”
In this connection, the question arises as to what is included in the legal concept of the “territory of the Republic of Kazakhstan.” This concept is broad in its content. As an organization of political power within a certain territory, the Republic of Kazakhstan possesses such an essential attribute of any state as sovereignty. Sovereignty means the supremacy inherent in the state within its territory and its independence in international relations.
Paragraph 2 of Article 2 of the Constitution establishes that “the sovereignty of the Republic extends throughout its entire territory.” Consequently, the concept of the territory of Kazakhstan in the Constitution of the Republic of Kazakhstan is closely connected with the concept of sovereignty. Following the dissolution of the USSR, the legal sovereignty of the Republic of Kazakhstan over its territory received specific expression in the Constitutional Law of the Republic of Kazakhstan “On the State Independence of the Republic of Kazakhstan” dated December 16, 1991. Article 4 of the Law establishes that the Constitution and laws of the Republic of Kazakhstan, as well as the norms of international law recognized by it, shall apply throughout the entire territory of the Republic of Kazakhstan. The territory of the Republic of Kazakhstan within its existing borders is integral, indivisible and inviolable (Article 5); persons staying on the territory of the Republic of Kazakhstan who are not its citizens shall enjoy the rights and freedoms and bear the obligations established by the Constitution, laws and interstate treaties of the Republic of Kazakhstan, except for exceptions established by the laws and interstate treaties of the Republic. Encroachments upon the equality of citizens shall be prosecuted under the law (Article 6).
Somewhat later, the Concept of the Formation of the State Identity of the Republic of Kazakhstan, approved by Order No. 2995 of the President of the Republic of Kazakhstan dated May 23, 1996, stated, with regard to the territory of the Republic of Kazakhstan, that Kazakhstan currently possesses in reality the principal attributes of a sovereign state. The foundation of sovereignty consists of the country's territory, its land and subsoil, natural resources, cultural values and the entire economic potential. Sovereignty extends throughout the entire territory of the state. The source of sovereignty is the people. It follows that all citizens of the country, without exception, possess the entire set of rights determined by sovereignty. Sovereignty extends to every citizen of the Republic and necessitates compliance with the laws of the country. Political or state sovereignty means that the Republic has the right to independently resolve all issues concerning its internal structure and relations with other states. One of the attributes of a state is the existence of its territory, the boundaries of which must be clearly delineated by state borders.
The territory on which the Republic of Kazakhstan is situated has been inhabited by ethnic groups that became the foundation of the Kazakh people. Since ancient times, large empires and separate khanates of the Turkic peoples, the ancestors of the Kazakhs, existed there. From the 15th century onward, it was the territory of an independent state, the Kazakh Khanate, which was the first form of Kazakh statehood in their history. As for the modern territory of the Republic of Kazakhstan, according to the Concept, its present-day borders took shape during the period when Kazakhstan was part of the Soviet Union. These borders fully correspond to the historically established area of settlement of the Kazakh people. Kazakhstan upholds the zero-option approach in matters concerning its borders with neighboring states, the essence of which lies in the immutability and inviolability of the borders that existed at the time of the dissolution of the USSR.
The importance of the issue of the legal understanding of the territory of the state for criminal procedural activities is demonstrated by the legal positions expressed by the Constitutional Council specifically on this matter. Thus, Paragraph 1 of the descriptive and reasoning part of Resolution No. 4 of the Constitutional Council dated April 23, 2003, “On the Official Interpretation of Paragraph 2 of Article 2 and Paragraph 3 of Article 6 of the Constitution of the Republic of Kazakhstan,” sets out the following definition of the concept of “state territory”: “The territory of a state represents the spatial limits within which the state exists and operates as a sovereign organization of power. It exercises supreme authority within this territory and is unified and independent. The land, its subsoil, waters, flora and fauna, and other natural resources encompassed by the territory of the Republic are under the public-law ownership of Kazakhstan. ... Territorial integrity is a determining condition for the national security of Kazakhstan.”
The political and legal definition of the concept of “state territory” required continuous and consistent efforts by the highest state authorities to provide legal formalization of the state border with neighboring states. In this regard, officials of the bodies conducting criminal proceedings must possess knowledge of the normative legal acts regulating the legal formalization of the territory of the state.
The fundamental law providing for the concept of the “territory of the Republic of Kazakhstan” is the Law of the Republic of Kazakhstan dated January 16, 2013, “On the State Border of the Republic of Kazakhstan.” This Law regulates public relations in the field of protection of the State Border of the Republic of Kazakhstan and determines the establishment, alteration of the course and marking of the State Border of the Republic of Kazakhstan.
In accordance with Article 1 of the Law, the State Border of the Republic of Kazakhstan is defined as a line and the vertical plane passing along it, which determine the limits of the territory of the Republic of Kazakhstan (land, waters, subsoil and airspace) and the spatial limits of the exercise of state sovereignty by the Republic of Kazakhstan.
According to Paragraph 3 of Article 9 of this Law, “The State Border shall be established: 1) on land — along characteristic points, relief lines or clearly visible landmarks; 2) on the Caspian Sea — along the outer limit of the territorial waters (sea) of the Republic of Kazakhstan; 3) on the Aral Sea — along the line of boundary points connecting the points where the State Border reaches the shores, which shall not shift when the configuration of the coastline or the water level in the sea changes; 4) on navigable rivers — along the middle of the main fairway or the thalweg of the river, on non-navigable rivers and streams — along their middle or the middle of the main branch of the river, on lakes and other bodies of water (except for the bodies of water specified in Subparagraph 5) of Paragraph 3 of this Article) — along an equidistant median straight line or another line connecting the points where the State Border reaches the shores of the lake or other body of water. The State Border passing along a river, stream, lake or other body of water shall not shift when the configuration of the shores or the water level changes, or when the channel of a river or stream deviates; 5) on reservoirs of hydraulic facilities and other artificial bodies of water — in accordance with the State Border that existed on the ground before it was flooded; 6) on bridges, dams and other structures crossing rivers, streams, lakes and other bodies of water — along the middle of these structures or their technological axis, regardless of the course of the State Border in the water.”
The State Border of the Republic of Kazakhstan is marked on the ground with clearly visible boundary markers in accordance with demarcation (Paragraph 1 of Article 10 of the Law). The forms, dimensions, descriptions, designs and procedure for installing boundary markers are determined by the Government of the Republic of Kazakhstan (“On Approval of the Forms, Dimensions, Descriptions, Designs and Rules for the Installation of Boundary Markers”: Resolution of the Government of the Republic of Kazakhstan dated November 8, 2013) (Paragraph 2 of Article 10 of the Law).
The Law of the Republic of Kazakhstan dated July 15, 2010, “On the Use of the Airspace of the Republic of Kazakhstan and Aviation Activities,” regulates the sovereignty of the state over its airspace. According to Article 2 of the Law, the Republic of Kazakhstan has full and exclusive sovereignty over the airspace located above its land and water territory and its territorial waters (Paragraph 1). The airspace of the Republic of Kazakhstan is part of its state territory (Paragraph 2).
In the course of criminal proceedings, the body conducting the criminal process, particularly in cases involving crimes committed in areas bordering other states, must know the boundaries of the territory of the Republic of Kazakhstan. In this regard, treaties and agreements of the Republic of Kazakhstan with neighboring states (Russia, the People's Republic of China, the Kyrgyz Republic, the Republic of Uzbekistan and Turkmenistan) concerning the State Border will be of assistance. For example: “On Ratification of the Agreement between the Republic of Kazakhstan and the People's Republic of China on the Kazakhstan-Chinese State Border”: Decree No. 2331 of the President of the Republic of Kazakhstan dated June 15, 1995; “On Ratification of the Agreement between the Republic of Kazakhstan, the People's Republic of China and the Russian Federation on Determining the Junction Point of the State Borders of the Three States”: Law of the Republic of Kazakhstan dated December 30, 1999; “On Ratification of the Agreement between the Republic of Kazakhstan, the People's Republic of China and the Kyrgyz Republic on the Junction Point of the State Borders of the Three States”: Law of the Republic of Kazakhstan dated May 17, 2000; “On Ratification of the Treaty between the Republic of Kazakhstan and Turkmenistan on the Delimitation and Demarcation Process of the Kazakhstan-Turkmenistan State Border”: Law of the Republic of Kazakhstan dated July 2, 2003; “On Ratification of the Treaty between the Republic of Kazakhstan and the Republic of Uzbekistan on the Kazakhstan-Uzbekistan State Border”: Law of the Republic of Kazakhstan dated July 2, 2003; “On Ratification of the Treaty between the Republic of Kazakhstan and the Kyrgyz Republic on the Kazakhstan-Kyrgyz State Border”: Law of the Republic of Kazakhstan dated July 2, 2003; “On Ratification of the Treaty between the Republic of Kazakhstan and the Russian Federation on the Kazakhstan-Russian State Border”: Law of the Republic of Kazakhstan dated December 2, 2005, and so forth.
Another relevant remark should also be made. In determining specifically whether a crime was committed on the territory of the Republic of Kazakhstan, investigative and judicial authorities may receive direct assistance from entities responsible for implementing state policy in the field of geodetic and cartographic activities, in accordance with the Law of the Republic of Kazakhstan dated July 3, 2002, “On Geodesy and Cartography.” In accordance with Article 3 of this Law, the objects of geodetic and cartographic activities include the territory of the Republic of Kazakhstan and geographical features located thereon, as well as the continents of the globe, the World Ocean, including islands, outer space, including natural celestial bodies and artificial Earth satellites. The subjects of geodetic and cartographic activities are the central state bodies of the Republic of Kazakhstan and state bodies of administrative-territorial units within the limits of their competence established by the legislation of the Republic of Kazakhstan, as well as individuals and legal entities. Pursuant to Subparagraph 11) of Article 1 of the Law, they have access to the cartographic and geodetic fund, that is, a collection of materials and data created as a result of geodetic and cartographic activities, having nationwide and intersectoral significance and subject to long-term storage for the purposes of their further use. In addition, according to the Law, during delimitation, the determination of the location and direction of the state border by agreement between neighboring states is not only recorded in the treaty but is also graphically depicted on maps attached to the treaty. In the case of demarcation, the determination of the state border on the ground in accordance with the delimitation treaty is marked with appropriate boundary markers (Subparagraphs 7–8 of Article 1 of the Law).
The territory of the Republic of Kazakhstan also includes the premises of Kazakh diplomatic missions abroad, seagoing vessels registered under the flag of the Republic of Kazakhstan (“flag state”) and located on the high seas (on long-distance voyages), as well as aircraft registered in the Republic of Kazakhstan and flying outside the country's airspace.
When a criminal offense is committed on board a Kazakh maritime or aircraft, the provisions of the CPC shall apply, taking into account the requirements of international conventions regulating civil aviation security and maritime navigation safety, as well as the extension, in certain cases, of the criminal procedural jurisdiction of the state where the aircraft lands or the port in which the vessel is located (see: “On Ratification of the Convention for the Suppression of Unlawful Seizure of Aircraft of December 16, 1970, and the Protocol Supplementing the Convention for the Suppression of Unlawful Seizure of Aircraft” dated September 10, 2010: Law of the Republic of Kazakhstan dated December 8, 2018; “On Ratification of the 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation” dated December 14, 2005: Law of the Republic of Kazakhstan dated March 15, 2015; “On the Accession of the Republic of Kazakhstan to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf” dated March 10, 1988: Law of the Republic of Kazakhstan dated February 27, 2003, and so forth.)
According to Article 1 of the United Nations Convention on the High Seas of April 29, 1958 (ratified by Decree of the Presidium of the Supreme Soviet of the USSR dated October 20, 1960), the words “high seas” mean all parts of the sea that are not included in the territorial sea or internal waters of any state.
In this regard, the rights and obligations of the inquiry body in conducting pre-trial proceedings and carrying out urgent investigative actions in cases involving all criminal offenses committed on board a maritime or aircraft are assigned to the captain of the maritime vessel or the commander of the aircraft. The activities of these officials in conducting inquiries are regulated by the Law of the Republic of Kazakhstan dated January 17, 2002, “On Merchant Shipping” (Articles 30–31), the Law of the Republic of Kazakhstan dated July 15, 2010, “On the Use of the Airspace of the Republic of Kazakhstan and Aviation Activities” (Articles 57 and 105), as well as the relevant orders of the Minister of Investments and Development of the Republic of Kazakhstan.
Thus, the requirements of Order No. 73 of the Minister of Investments and Development of the Republic of Kazakhstan dated January 30, 2015, “On Approval of the Service Regulations for Ships of the Maritime Transport of the Republic of Kazakhstan” (Paragraph 46), must be taken into account in criminal procedural practice. Under these requirements, the captain (head of the vessel's crew) shall isolate in a separate room any person who poses a threat to the safety of the vessel and/or the people and property on board, including, without exception, a person suspected of having an infectious disease. The captain shall detain a person suspected of committing a crime provided for by the criminal legislation of the Republic of Kazakhstan and keep that person in specially equipped premises until the person is handed over to the competent authorities at the first port of the Republic of Kazakhstan entered by the vessel. The captain shall hand over to the competent authorities of a foreign state, where this is provided for by an international treaty ratified by the Republic of Kazakhstan, a person suspected of committing a crime directed against the safety of maritime navigation, with the exception of a citizen of the Republic of Kazakhstan and a stateless person whose permanent place of residence is the Republic of Kazakhstan (see also Subparagraphs 55–21 of Paragraph 3 of Article 4 of the Law of the Republic of Kazakhstan dated January 17, 2002, “On Merchant Shipping”).
Similarly, a number of legal acts concerning aviation security issues relevant to the field of criminal proceedings have been developed by the said Ministry pursuant to the Law “On the Use of the Airspace of the Republic of Kazakhstan and Aviation Activities” (see: “On Approval of Aviation Security Rules”: Resolution No. 746 of the Government of the Republic of Kazakhstan dated July 25, 2003; “On Approval of the Flight Safety Program in the Field of Civil Aviation”: Resolution No. 136 of the Government of the Republic of Kazakhstan dated March 11, 2016; “On Approval of the Rules for Flight Operations in Civil Aviation of the Republic of Kazakhstan”: Order No. 509 of the Acting Minister of Investments and Development of the Republic of Kazakhstan dated July 28, 2017, and so forth).
Within the composition of the state territory of Kazakhstan, as follows from an analysis of the relevant bilateral international documents concerning the promotion and mutual protection of investments (in the form of Agreements), as well as the avoidance of double taxation and the prevention of tax evasion with respect to taxes on income and property (in the form of Conventions), in which the Republic of Kazakhstan is one of the parties, it is necessary to distinguish the so-called “continental shelf” and “free economic zones.” As a coastal state, Kazakhstan has the right to exercise its sovereign rights and jurisdiction in these areas in accordance with international law and domestic legislation over the broadest range of issues. From the perspective of criminal procedure, crimes falling within the jurisdiction of border control authorities, the Economic Investigation Service, internal affairs bodies, and others may be committed in these territories.
Among the international documents regulating the legal regime of these territories, in addition to those mentioned above, a special place is occupied by the United Nations Conventions of April 29, 1958, “On the High Seas,” “On the Continental Shelf,” and of October 30, 1958, “On the Territorial Sea and Contiguous Zone” (these documents are covered by the Decree of the Presidium of the Supreme Soviet of the USSR dated October 20, 1960, “On Ratification of the Conventions on the Law of the Sea”), as well as the United Nations Convention on the Law of the Sea (adopted on April 30 and opened for signature on December 10, 1982). By the way, a few words about the latter Convention. In specialized literature, the Convention on the Law of the Sea is often referred to as the “Constitution for the Oceans.” It consists of 320 articles and 9 annexes and covers almost all issues concerning maritime space and its use, including navigation and overflight, exploration and exploitation of resources, protection of the marine environment from pollution, fishing and shipping. The Convention confirmed and supplemented a number of proposals enshrined in the 1958 Geneva Conventions on the Law of the Sea. At the same time, it included many new provisions that appeared for the first time in international maritime law (http://dic.academic.
Without setting out to examine the content of these Conventions in detail, we shall limit ourselves to presenting certain concepts from the 1982 United Nations Convention on the Law of the Sea for the purpose of their consideration in the criminal procedural activities of Kazakhstan's criminal prosecution authorities and courts. The fact is that part of the Caspian Sea falls under the jurisdiction of Kazakhstan, and therefore it is important to know, even in the most general terms, how the dimensions of this part of the sea are determined.
Thus, the Convention established a 12-mile zone of territorial waters (the territorial sea is approximately 22 km from the shore). Within this zone, coastal countries have full jurisdiction. Ships and vessels (including military vessels) of foreign states have the right of “innocent passage” through these territories. Within 12 nautical miles, coastal countries have ownership rights over all living and non-living resources of the ocean. In addition to territorial waters, the Convention also established the concept of “contiguous waters” — up to 24 nautical miles from the shore; within this zone, coastal states conduct their immigration, sanitary, customs and environmental policies.
The Convention also established the concept of an “exclusive economic zone.” Each coastal state has the right to claim an exclusive economic zone extending 200 nautical miles from the shore, within which it has the right to explore and exploit living and non-living resources. Within their exclusive economic zones, states have the right to regulate construction activities and to use existing ocean infrastructure for economic, scientific and environmental purposes. Nevertheless, coastal countries do not possess ownership rights over the sea area itself or its resources within the exclusive economic zone, but all states of the world have the right to construct pipelines and lay cable routes there. Continental shelf zones (the part of the continental landmass submerged by the sea) are specifically regulated. The 1958 Geneva Conference determined that the shelf also includes underwater ridges that constitute a continuation of the continental landmass. Article 76 of the 1982 Convention stipulates that the boundary of the shelf may not extend beyond 350 miles (approximately 650 km) from the boundaries of the internal sea or more than 100 miles from the 2,500-meter depth contour.
It should be noted that the rights of a coastal state over the continental shelf do not affect the legal status of the waters above it or the airspace above those waters. Since the maritime space above the continental shelf continues to remain the high seas, all states have the right to exercise navigation, overflight, fishing, and the laying of submarine cables and pipelines. At the same time, a special regime for the exploration and development of natural resources has been established. For the purpose of exploring and developing the natural resources of the shelf, a coastal state has the right to construct appropriate installations and structures and establish safety zones around them (up to 500 meters). The exercise of the rights of a coastal state must not infringe upon the right of navigation or other rights of other states. A coastal state has the right to determine routes for laying cables and pipelines, authorize the construction of installations and the conduct of drilling operations, and construct artificial islands.
Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan 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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