Commentary on Article 4. Application of the Criminal Procedure Law of a Foreign State in the Territory of the Republic of Kazakhstan of the Criminal Procedure Code of the Republic of Kazakhstan
The application in the territory of the Republic of Kazakhstan of the criminal procedure law of a foreign state by the investigative authorities and courts of a foreign state, or, on their instructions, by an authority conducting criminal proceedings, shall be permitted if provided for by an international treaty ratified by the Republic of Kazakhstan.
1. The rules of the provision under consideration are also closely related to the interpretation of Articles 1–3 of the CPC and permit the possibility of applying the provisions of the criminal procedure law of a foreign state in the territory of the Republic of Kazakhstan. However, the following must be observed in this regard.
The provisions of foreign criminal procedure legislation may be applied in the territory of the Republic of Kazakhstan if this is expressly provided for by international treaties, agreements and conventions of the Republic of Kazakhstan with foreign states on legal assistance in criminal matters; this concerns aircraft and seagoing vessels that are registered in the relevant foreign state, have identification marks and a flag, are assigned to the ports of the respective foreign state, and are located outside their own state within the territory of Kazakhstan, as well as the premises of diplomatic missions of foreign states in the Republic of Kazakhstan. In the latter case, the immunity (inviolability) of these facilities is protected by a large number of international legal instruments, also ratified by the laws of the Republic of Kazakhstan. However, regardless of the circumstances, the provisions of the criminal procedure law of a foreign state must be applied in strict accordance with the principles and provisions of international treaties, agreements and conventions ratified by Kazakhstan. In criminal procedural activities, as a rule, no problems arise when the need emerges to apply the provisions of the criminal procedure law of a foreign state in the territory of the Republic of Kazakhstan. At the same time, situations similar to those that occurred during the maintenance of law and order and the fight against crime at the Baikonur Complex must be excluded. At that time, as a result of the poor quality of regulatory legal acts governing legal relations at the Baikonur Complex, the jurisdiction and provisions of the Criminal Procedure Code of the Russian Federation were applied to citizens of the Republic of Kazakhstan in cases where they committed crimes within the territory of the Complex and beyond its boundaries. The provisions of the relevant Treaties and Agreements between the Republic of Kazakhstan and the Russian Federation in the field of legal assistance in criminal matters, insofar as they concerned the jurisdiction of law enforcement agencies and courts of the Russian Federation over citizens of Kazakhstan within the territory of the Republic of Kazakhstan, were recognized by the Constitutional Council as inconsistent with the Constitution of the Republic of Kazakhstan (Resolution of the Constitutional Council of the Republic of Kazakhstan dated May 7, 2001 No. 6/2 “On the submission of the Kyzylorda Regional Court concerning the recognition as unconstitutional of the second part of paragraph 6.12 of Article 6 of the Lease Agreement for the Baikonur Complex and Articles 5 and 11 of the Agreement on Interaction between Law Enforcement Agencies in Ensuring Law and Order within the Territory of the Baikonur Complex”; Regulatory Resolution of the Constitutional Council of the Republic of Kazakhstan dated November 5, 2009 No. 6 “On the Official Interpretation of the Provisions of Article 4 of the Constitution of the Republic of Kazakhstan with Regard to the Procedure for Implementing Decisions of International Organizations and Their Bodies”, paragraphs 1 and 4, operative part).
2. The analysis of provisions governing the procedure for executing requests originating from competent institutions of foreign states for the provision of legal assistance under treaties, agreements and conventions concluded with other countries and ratified by the Republic of Kazakhstan is of particular practical interest. These instruments address, at least in general terms, the possibility or impossibility of applying the provisions of foreign criminal procedure law in the territory of the Republic of Kazakhstan.
Thus, in accordance with paragraph 1 of Article 8 of the Minsk Convention and paragraph 1 of Article 8 of the Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, when executing a request for legal assistance, the justice institution to which the request is addressed shall apply the legislation of its own state. However, at the request of the institution from which the request originates, it may apply the procedural rules of the Contracting Party from which the request originates, provided that they do not contradict the legislation (or the fundamental principles of the legislation) of its state. In this case, the requesting Contracting Party must provide the text of the procedural law (paragraph 1 of Article 8 of the Chisinau Convention).
In general, the same approach is formulated, for example, in paragraph 1 of Article 8 of the Treaty between the Republic of Kazakhstan and the Republic of Uzbekistan on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters; paragraph 2 of Article 15 of the Treaty between the Republic of Kazakhstan and Mongolia on Mutual Legal Assistance in Civil and Criminal Matters; paragraph 1 of Article 8 of the Treaty between the Republic of Kazakhstan and the Republic of Lithuania on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters; Article 16 of the Treaty between the Republic of Kazakhstan and the Kyrgyz Republic on the Provision of Mutual Legal Assistance in Civil and Criminal Matters; paragraph 1 of Article 5 of the Treaty between the Republic of Kazakhstan and the DPRK on Mutual Legal Assistance in Civil and Criminal Matters; Article 12 of the Treaty between the Republic of Kazakhstan and the PRC on Legal Assistance in Civil and Criminal Matters; Article 16 of the Treaty between the Republic of Kazakhstan and Georgia on Mutual Legal Assistance in Civil and Criminal Matters; paragraph 1 of Article 8 of the Treaty between the Republic of Kazakhstan and the Islamic Republic of Pakistan on Mutual Legal Assistance in Civil, Family and Criminal Matters; paragraph 1 of Article 5 of the Treaty between the Republic of Kazakhstan and the Republic of India on Mutual Legal Assistance in Criminal Matters, and so forth.
At the same time, a number of treaties provide for the execution of requests in accordance with the national legislation of the Requested Party. For example, this requirement is expressly stipulated in paragraph 1 of Article 6 of the Treaty between the Republic of Kazakhstan and Romania on Legal Assistance in Criminal Matters (in this case, if a request cannot be executed in whole or in part in accordance with the procedural requirements established by the Requesting Party, even if such requirements are not provided for in the Requested Party, the Requested Party shall execute the request to the extent that does not contradict its fundamental legal principles — paragraph 2 of Article 6); paragraph 2 of Article 8 of the Treaty between the Republic of Kazakhstan and the Republic of Bulgaria on Legal Assistance in Criminal Matters (a request for legal assistance shall be executed in accordance with the legislation of the Requested Party and the procedures described in the request, provided that they do not contradict the legislation of the Requested Party and the fundamental principles of its law); paragraph 3 of Article 5 of the Treaty between the Republic of Kazakhstan and the United States (requests shall be executed in accordance with the legislation of the Requested State, except in cases provided for by the Treaty. Nevertheless, compliance with the procedure for execution specified in the request shall be ensured, except where prohibited by the legislation of the Requested State); Article 10 of the Inter-American Convention on Mutual Assistance in Criminal Matters, ratified by the Republic of Kazakhstan (requests for assistance submitted by the Requesting State must be made in writing and executed in accordance with the domestic legislation of the Requested State. The procedures specified in the request for assistance shall be carried out in accordance with the procedure determined by the Requesting State, to the extent that the legislation of the Requested State is not violated); paragraphs 1–2 of Article 6 of the Treaty between the Republic of Kazakhstan and the Italian Republic on Mutual Legal Assistance in Criminal Matters (the Requested Party shall execute the request without delay in accordance with its national legislation. For this purpose, the competent authority of the Requested Party shall issue summonses for the appearance of persons being summoned, warrants for searches, seizure, arrest or confiscation, or take any other measures necessary to execute the request (paragraph 1). The Requested Party shall execute the request in accordance with the procedure established by the Requesting Party, provided that this does not contradict the national legislation of the Requested Party (paragraph 2)); paragraphs 1–2 of Article 6 of the Treaty between the Republic of Kazakhstan and Hungary on Mutual Legal Assistance in Criminal Matters (the Requested Party shall execute requests submitted to it by the Requesting Party in accordance with the procedures and manner prescribed by its national legislation (paragraph 1). When providing legal assistance, the Requested Party may, upon request, apply a special procedure required by the Requesting Party, insofar as such procedure is compatible with its national legislation (paragraph 2)); paragraphs 1–2 of Article 6 of the Treaty between the Republic of Kazakhstan and the Principality of Monaco on Mutual Legal Assistance in Criminal Matters (the Requested Party shall execute the request without delay in accordance with its national legislation. For this purpose, the competent authority of the Requested Party shall issue summonses for the appearance of persons being summoned, warrants for searches, seizure and arrest, or take any other measures necessary to execute the request (paragraph 1). The Requested Party shall execute the request in accordance with the procedure established by the Requesting Party, provided that this does not contradict the national legislation of the Requested Party (paragraph 2)).
Furthermore, in order to improve the efficiency and effectiveness of executing requests for legal assistance, treaties, agreements and conventions (although not all of them) allow representatives of the competent authorities of one Contracting Party to be present during the performance of procedural actions within the framework of a request in the territory of another Contracting Party. This generally requires the consent of the latter and notification of the date and place of the procedural actions specified in the request (petition). For example, this is permitted by the Chisinau Convention (the establishment of joint investigative-operational groups). According to its provisions, investigative actions, search measures or operational-search activities shall be carried out by members of the joint investigative-operational group of the Contracting Party in whose territory they are conducted. The participation of members of the joint investigative-operational group of one Contracting Party in investigative actions, search measures and operational-search activities in the territory of another Contracting Party shall be carried out in accordance with the procedure provided for in Article 63 of the Convention.
To the extent not prohibited by the legislation of the Requested Party and the terms of the Treaty, such presence during the execution of a request for legal assistance in criminal matters is, for example, permitted by Article 37 of the Treaty between the Republic of Kazakhstan and the Kyrgyz Republic; Article 74 of the Treaty between the Republic of Kazakhstan and the Republic of Lithuania; paragraph 3 of Article 8 and Article 101 of the Treaty between the Republic of Kazakhstan and the Republic of Uzbekistan; Article 34 of the Treaty between the Republic of Kazakhstan and the Islamic Republic of Pakistan; paragraphs 2 and 3 of Article 8 of the Treaty between the Republic of Kazakhstan and the Republic of India; Article 37 of the Treaty between the Republic of Kazakhstan and Georgia; Article 5 of the Agreement between the Republic of Kazakhstan and the Republic of Turkey on Legal Assistance in Criminal Matters and Extradition; paragraph 2 of Article 7 and paragraph 2 of Article 10 of the Treaty between the Republic of Kazakhstan and the Czech Republic; paragraph 2 of Article 9 of the Agreement between the Republic of Kazakhstan and the UAE; paragraph 2 of Article 7 and paragraph 2 of Article 14 of the Convention between the Republic of Kazakhstan and the Kingdom of Spain; Article 10 of the Treaty between the Republic of Kazakhstan and the Republic of Bulgaria; paragraph 3 of Article 6 of the Treaty between the Republic of Kazakhstan and the Principality of Monaco; paragraph 3 of Article 6 of the Treaty between the Republic of Kazakhstan and the Italian Republic; paragraph 3 of Article 6 of the Treaty between the Republic of Kazakhstan and Hungary; paragraphs 2–3 of Article 8 of the Treaty between the Republic of Kazakhstan and the United States.
Thus, the Convention between the Republic of Kazakhstan and the Kingdom of Spain does not grant the competent authorities of the Requesting Party the right to perform, in the territory of the Requested Party, functions that, under the legislation of that Party, are assigned to its own competent authorities, except in the cases provided for in Article 14 of this Convention (paragraph 2 of Article 3).
At the same time, the participation of officials of criminal procedure authorities is excluded under the Treaties and Agreements between the Republic of Kazakhstan and Mongolia; between the Republic of Kazakhstan and the DPRK; between the Republic of Kazakhstan and the PRC; between the Republic of Kazakhstan and Romania, as well as under the Inter-American Convention.
For example, Article 2 of the Inter-American Convention on Mutual Assistance in Criminal Matters does not authorize any State Party to exercise jurisdiction or perform functions in the territory of another State Party that, under the domestic legislation of the latter, fall within the exclusive competence of its own authorities.
Of all the treaties, agreements and conventions examined, the procedural status of officials of foreign criminal procedure authorities who are permitted to be present during the execution of requests (petitions) for legal assistance in Kazakhstan is set out most comprehensively in Article 8 of the Treaty between the Republic of Kazakhstan and the Republic of India. In particular, they are permitted to be present during the collection of evidence in the Requested Party and to participate in obtaining such documents (paragraph 2). Furthermore, the right to participate in the collection of evidence includes the right of a lawyer to be present for the purpose of asking questions. Persons present during the execution of a request for legal assistance may be permitted to make a verbatim record of procedural actions using technical equipment (paragraph 3).
In general, the participation of persons whose presence is necessary during the execution of a request for assistance, as well as their role in the criminal investigation in connection with which assistance is requested, is regulated in a similar manner by the Treaty between the Republic of Kazakhstan and the Czech Republic: “The Requested Party may permit the presence of persons specified in the request for legal assistance during the execution of the request for legal assistance, provided that such presence does not contradict the legislation of the Requested Party; the Requested Party shall permit the presence of the lawyer of the defendant or of persons subject to criminal prosecution in respect of whom assistance is requested. For these purposes, the Requested Party shall notify the Requesting Party in advance of the date, time and place of execution of the request for legal assistance; where necessary, the Central Authorities shall consult with each other regarding the appointment of a date convenient for both Parties. Persons whose presence during the execution of a request for legal assistance is permitted in accordance with this Article may propose additional questions to the competent authorities of the Requested Party executing the request for legal assistance, which may facilitate its execution or the achievement of the purpose of the requested assistance, and may make other proposals for its execution; the competent authorities of the Requested Party executing the request for legal assistance shall decide at their discretion whether to ask additional questions or apply such proposals” (paragraph 2 of Article 10).
Commentary of 2020 to 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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