Commentary on Article 42-1. Format 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 paper and (or) electronic formats.
• The person conducting the criminal proceedings may, at their discretion, conduct the criminal proceedings in electronic format, in respect of which a reasoned resolution shall be issued.
• 2. In the event that it becomes impossible to continue conducting criminal proceedings in electronic format, the person conducting the criminal proceedings shall switch to paper format, in respect of which a reasoned resolution shall be issued.
• Note. Chapter 5 was supplemented with Article 42-1 pursuant to the Law of the Republic of Kazakhstan dated December 21, 2017 No. 118-VI (shall enter into force upon the expiration of ten calendar days after the date of its first official publication).
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• The provisions of Article 42-1 of the CPC provide for the possibility of conducting proceedings in a case in two formats: on paper media or electronically. In principle, this is normal under conditions where total digitalization of many professional and other functions is being introduced. It can be argued that this Article expands the existing possibilities for using electronic document management in criminal proceedings. In addition, the introduction of the electronic format increases the efficiency of the progress of criminal proceedings in a criminal case, significantly reduces the costs of conducting them, and serves as a factor in reducing corruption during criminal proceedings. Let us provide some examples of the use of electronic documents in criminal proceedings.
• Thus, procedural and investigative actions have long relied on the use of various scientific and technical means in the course of their performance (Articles 80, 126, 197, 199 and others of the CPC).
• The CPC classifies the following as types of electronic documents in criminal proceedings: an individual's report of a criminal offense, which may be oral, written, or in the form of an electronic document (Part 1 of Article 181); a statement of claim submitted by a civil claimant in written form or in the form of an electronic document in accordance with the requirements applicable to claims considered under civil proceedings (Part 5 of Article 167 of the CPC), etc.
• The main court hearing may be recorded using audio and video recording equipment, which entails the preparation by the court session secretary of a brief written record of the court session (Article 347-1 of the CPC).
• Alongside this, the information system “Unified Register of Pre-Trial Investigations” provides for the possibility of conducting criminal proceedings in electronic format by having the investigator create all procedural documents and official papers stipulated by the CPC exclusively in electronic form. The investigator and other officials of the criminal prosecution authorities access the system through three authentication methods, namely, the use of an electronic digital signature, a login (password), and a fingerprint. For additional protection against unauthorized actions, the “Event Logging” functionality has been introduced, which is intended to monitor the actions of officials in relation to specific criminal cases; that is, it records who accessed the criminal case and when, who examined it, conducted investigative actions, edited it, etc.
• Electronic documents are essentially created by selecting the type of procedural decision or investigative action and filling in the information in an electronic input form. The document is then converted into PDF format and visually displayed as a document in the “Electronic Criminal Case” module of the “Unified Register of Pre-Trial Investigations” information system. The “electronic criminal case” in which the investigation has been completed is accessible to both the investigator and the prosecutor and is also transferred in electronic format, through integration, to the information system of the Supreme Court of the Republic of Kazakhstan.
• The basis for conducting and discontinuing the conduct of a criminal case in electronic format is a reasoned resolution issued by the person conducting the criminal proceedings. This means that both formats may be used in the course of criminal proceedings in a case, as emphasized in Part 2 of Article 42-1 of the CPC. In other words, where grounds exist, a transition from the electronic format to the paper format of pre-trial investigation is permitted (for technical and other reasons).
• Under the rules of Article 42-1 of the CPC, criminal cases involving criminal misdemeanors, crimes of minor gravity, medium gravity, and even grave and especially grave crimes are currently investigated. The transition to electronic investigations for all categories of criminal offenses was planned to be completed by 2021. For example, in 2019, 243,462 criminal offenses were registered across the country, of which 44,604 criminal cases were investigated in electronic format, including 20,364 involving criminal misdemeanors and crimes of minor gravity, 23,106 involving crimes of medium gravity, 1,129 involving grave crimes, and 5 involving especially grave crimes, or 18.3 percent of the total number of criminal cases. A total of 10,723 electronic criminal cases were sent to the courts.
• The CPC essentially entrusts the determination of the procedural form for conducting criminal proceedings in electronic format to the Prosecutor General of the Republic of Kazakhstan, who, within the scope of their competence, adopts regulatory legal acts, including on this matter, which are binding on criminal prosecution authorities (Part 6 of Article 58 of the CPC).
• On January 3, 2018, the Prosecutor General issued Order No. 2 “On Approval of the Instructions for Conducting Criminal Proceedings in Electronic Format.” In accordance with the substance of the Order (without going into detail), conducting a criminal case in electronic format presupposes:
• — the availability of a specialized software system (the Unified Register of Pre-Trial Investigations information system) that enables the creation, storage, signing, and use of electronic procedural, investigative, and official documents;
• — the availability of high-speed communication channels through a secure state communications channel — the Unified Transport Environment of State Bodies — for access to the above-mentioned system;
• — the availability of specialized equipment (a biometric fingerprint reader for authenticating participants in a criminal case and a tablet for participants in procedural or investigative actions to sign documents);
• — the availability of an electronic digital signature for participants in procedural or investigative actions.
• At the same time, the possibility of conducting a criminal case in electronic format outside the investigator's office is currently unavailable. If investigative actions are conducted without a computer connected to the Unified Register of Pre-Trial Investigations information system, such investigative actions (inspection of the crime scene, verification of testimony at the scene, searches, seizures, investigative experiments, etc.) are documented in paper form. Subsequently, the procedural documents recording the performance of these actions are scanned and attached as an electronic file to the electronic form of the “Electronic Criminal Case” module.
• At the request of a lawyer, victim, witness, suspect, or accused person, these records of investigative actions may be sent to them by email immediately after the actions have been conducted, or they may be provided to them later on paper, in the form of a printed document, in the investigator's office.
• Furthermore, the above-mentioned and other participants in criminal proceedings may obtain copies of these documents online via the Internet by accessing the website of the Committee on Legal Statistics and Special Records under the Prosecutor General's Office, in the “Public Sector of the Unified Register of Pre-Trial Investigations Information System” section. They may also submit applications, file motions, receive responses to them, etc.
• Thus, modern technologies for conducting criminal proceedings in electronic format are available. However, there are also serious reasons that currently prevent the full implementation of criminal proceedings in electronic format. These include, first and foremost, the need for substantial investments in the acquisition of specialized equipment, as well as other (organizational, technical, and subjective) factors.
• In general, the basis of electronic proceedings must be an understanding of the specific nature of the activities of the bodies and officials conducting criminal proceedings.
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• 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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