Commentary on Article 30. Language of Criminal Proceedings of the Criminal Procedure Code of the Republic of Kazakhstan
- 1. Criminal proceedings in the Republic of Kazakhstan shall be conducted in the Kazakh language; alongside Kazakh, the Russian language shall be officially used in judicial proceedings, and, where necessary, other languages shall also be used.
- 2. Where it is necessary to conduct proceedings in Russian or other languages, the body conducting the criminal proceedings shall issue a reasoned ruling on changing the language of the proceedings.
- 3. Persons participating in the case who do not speak, or do not sufficiently speak, the language in which the proceedings are conducted shall be informed of and guaranteed the right to make statements, give explanations and testimony, file motions, lodge complaints, familiarize themselves with the case materials, and speak in court in their native language or another language they speak, and to use the services of an interpreter free of charge in accordance with the procedure established by this Code.
- 4. Persons participating in criminal proceedings shall be provided, free of charge, with translations into the language of the criminal proceedings of the case materials necessary for them that are set out in another language. Persons participating in court proceedings shall be provided, free of charge, with a translation into the language of the proceedings of that part of the court hearing which takes place in another language.
- 5. The bodies conducting criminal proceedings shall serve participants in the proceedings with documents that must be served on them in accordance with this Code in the language of the proceedings. At the same time, for persons who do not speak the language of the criminal proceedings, a certified copy of the document set out in the language of the proceedings chosen by those persons shall be attached.
The protection of the rights and legitimate interests of participants in criminal proceedings, compliance with the principle of legality and other principles would be incomplete without emphasizing the importance of ensuring the language of the proceedings by the bodies conducting criminal proceedings. The relevance of this principle is обусловлено by the establishment in the Constitution of the state (Kazakh) and official (Russian) languages (Article 7), as well as the right of everyone to use their native language (paragraph 2 of Article 19). The application of the principle of the language of proceedings constitutes a legal guarantee of the protection of the rights and freedoms of persons participating in judicial proceedings. Judicial proceedings in the Republic of Kazakhstan are conducted in the Kazakh language; alongside Kazakh, Russian is officially used, and, where necessary, other languages are also used. Cases in which the use of other languages is necessary include circumstances in which the performance of procedural actions and the adoption of decisions in a particular language will ensure compliance with the rights and legitimate interests of participants in the proceedings (paragraph 2 of Regulatory Resolution No. 13 of the Supreme Court of the Republic of Kazakhstan dated December 22, 2016, “On Certain Issues Concerning the Application of the Principle of the Language of Proceedings”).
The importance of observing the language of proceedings during the conduct of a case is indicated by the provisions of the CPC: the mandatory participation of defense counsel in a criminal case where the suspect, accused, defendant, convicted person or acquitted person does not speak the language in which the proceedings are conducted; a judgment is subject to reversal by appellate and other courts in any event if, in the court of first instance, the right of the defendant or victim to use their native language or a language they speak, or the services of an interpreter, was violated (subparagraph 5) of part 3 of Article 436, part 9 of Article 494 of the CPC). Persons who do not speak the language of the proceedings include those who have difficulty understanding ordinary conversational speech in the language of the proceedings, are unable to express their thoughts freely in that language, or experience difficulties in conversation and when reading texts.
In criminal cases, the language of the proceedings (Kazakh, Russian or other languages) must be determined simultaneously with the issuance of the ruling accepting the criminal case for the authority's own proceedings, or by a separate procedural decision of the body conducting the criminal proceedings. Where necessary, the language of the proceedings may be changed, by a reasoned decision of the body conducting the criminal proceedings, during the course of the proceedings.
Based on the content of the provisions of Article 30 of the CPC, the language of the proceedings is ensured either by translating the necessary procedural documents for participants in the proceedings or with the assistance of an interpreter (Article 85 of the CPC). These services are provided to participants in criminal proceedings free of charge. In this regard, the CPC excludes the combination of the functions of an interpreter with those of the members of the court, prosecutors, investigators and inquiry officers; this must be regarded as a gross violation of the principle of the language of proceedings. It is even more impermissible to use as interpreters persons who are being held liable for administrative or criminal offenses or who are serving sentences.
It should also be borne in mind that, at present, it would be useful to employ, in investigative and judicial activities within criminal proceedings, alongside the participation of an interpreter, the potential capabilities of secure portable electronic two-way voice translators.
The provisions of Article 30 of the CPC stipulate that documents which, by law, must be served on participants in criminal proceedings shall additionally be prepared, for persons who do not speak the language of the proceedings, in the form of a certified copy of the document set out in the language of the proceedings chosen by those persons (part 5). The following procedural documents may be included among the documents in question: copies of rulings served on the suspect concerning recognition as a suspect or civil defendant, qualification of the act, the record of detention, preventive measures, and termination of the criminal case (part 7 of Article 64 of the CPC); copies of the indictment approved by the prosecutor, the protocol on a criminal misdemeanor, etc., served on the accused (Article 65 of the CPC); a copy of the ruling on termination of the criminal case served on participants in the proceedings (part 3 of Article 289 of the CPC); copies of rulings served on the victim concerning recognition of that person as a victim or refusal thereof, termination of the pre-trial investigation, the indictment, as well as copies of judgments and rulings of the courts of first-instance, appellate and cassation instances (part 6 of Article 71 of the CPC); copies of procedural decisions relating to the civil claim filed, served on the civil plaintiff (part 2 of Article 73 of the CPC) and the civil defendant (part 2 of Article 74 of the CPC), etc.
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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