Commentary on Article 47. Preservation of Confidentiality of the Criminal Procedure Code of the Republic of Kazakhstan

1. During criminal proceedings, measures предусмотренные by this Code and other legislation shall be taken to protect information constituting state secrets and other secrets protected by law.

2. Persons whom the body conducting criminal proceedings requests to communicate or provide information constituting state secrets or other secrets protected by law may not refuse to comply with the said requirement by referring to the need to preserve state secrets or other secrets protected by law. Before obtaining the said communications or information from a person, the body conducting criminal proceedings shall be obliged to make an entry in the record of the relevant procedural action and obtain the person's signature confirming that they have been informed of the necessity of obtaining such information from them exclusively for the purposes of proceedings in the criminal case and of maintaining the confidentiality of the information obtained in accordance with the procedure prescribed by law.

3. The procedure for granting participants in criminal proceedings access to information constituting state secrets shall be determined by legislation.

4. If the materials of a criminal case being considered by a court with the participation of jurors contain information constituting state secrets, the authorized state body responsible for the material, technical and other support of the court's activities shall, upon written instruction of the presiding judge, arrange for the jurors to be granted access to state secrets in accordance with the procedure established by the legislation of the Republic of Kazakhstan.

5. Evidence containing information constituting state secrets shall be examined in a closed court hearing.

6. Evidence containing information constituting other secrets protected by law, as well as information revealing intimate aspects of private life, may, upon the motion of persons who face the threat of disclosure of such information, be examined in a closed court hearing.

7. Damage caused to a person as a result of a violation of the inviolability of private life or the disclosure of personal or family secrets shall be compensated in accordance with the procedure prescribed by law.

8. The procedure for preserving the confidentiality of pre-trial investigation data shall be determined by Article 201 of this Code.

9. Copies of procedural documents from the case file that are to be served on participants in criminal proceedings and contain information constituting state secrets or other secrets protected by law shall, after the participants have familiarized themselves with them, be kept in the case file and provided to participants in criminal proceedings for the duration of the court hearing.

10. When referring in a judgment or ruling to case materials containing state secrets or other secrets protected by law, the court shall not disclose their contents.

The article under consideration regulates general approaches to one of the important aspects of criminal proceedings — their confidentiality, that is, a certain degree of restricted access and secrecy for persons who are not participants in criminal proceedings. This is an entirely ordinary feature of criminal proceedings, particularly proceedings in a criminal case in which no final judicial or other decision has yet been issued. Such confidentiality is justified because it is necessitated by the existing opposition to the bodies conducting criminal proceedings on the part of persons who have committed criminal offenses, as well as by the use by criminal groups of various levels of criminal tactics aimed at obstructing the effective performance of tasks in the field of criminal justice. In this regard, it is entirely appropriate that the Law of the Republic of Kazakhstan dated January 6, 2011, “On Law Enforcement Service,” obliges law enforcement officers to preserve state secrets and other secrets protected by law, including after termination of public service for the period established by law, in respect of which they provide a written undertaking; to keep confidential information obtained in the exercise of their official powers that affects the private life, honor and dignity of citizens; and not to require them to provide such information, except in cases provided for by the laws of the Republic of Kazakhstan (subparagraphs 9—10 of paragraph 1 of Article 16). The same obligations are imposed on all civil servants, which also include officials of bodies conducting criminal proceedings, by the Law of the Republic of Kazakhstan dated November 23, 2015, “On Civil Service” (subparagraph 3 of paragraph 1 of Article 3, subparagraphs 10—11 of Article 10).

The provisions of Article 47 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter — the CPC) distinguish between state secrets and other secrets protected by law and, accordingly, establish different approaches to handling them in criminal proceedings. The Law of the Republic of Kazakhstan dated March 15, 1999, “On State Secrets,” contains the following definition of state secrets: these are information constituting state and official secrets protected by the state, the dissemination of which is restricted by the state for the purpose of carrying out effective military, economic, scientific and technical, foreign economic, foreign policy, intelligence, counterintelligence, operational-search and other activities that do not contradict generally accepted norms of international law.

In turn, a state secret is information of a military, economic, political or other nature, the disclosure or loss of which causes or may cause damage to the national security of the Republic of Kazakhstan; an official secret is information in the form of individual data that may form part of a state secret, the disclosure or loss of which may cause damage to the national interests of the state and the interests of state bodies and organizations of the Republic of Kazakhstan. Furthermore, according to the law, the degree of secrecy of information constituting state secrets must correspond to the degree of severity of the damage caused or that may be caused to the national security of the Republic of Kazakhstan or to the interests of state bodies and organizations as a result of the dissemination of such information. In this regard, the law establishes three degrees of secrecy for information constituting state secrets and the corresponding secrecy classifications for the carriers of such information: “of special importance,” “top secret,” and “secret.” Information constituting a state secret is assigned the secrecy classifications “of special importance” and “top secret.” Information constituting an official secret is assigned the secrecy classification “secret” (a secrecy classification is a designation indicating the degree of secrecy of information contained in its carrier, affixed to the carrier itself and (or) to the accompanying documentation) (Articles 1 and 18). The same Law defines the specific types of information classified as state secrets of the Republic: in the military sphere; in the fields of economics, science and technology; in foreign policy and foreign economic affairs; and in the fields of intelligence, counterintelligence, operational-search and other activities (Articles 11—14). State secrets also include information concerning the organization of operational-search activities, specific operational-search measures, and sources and methods of obtaining information (paragraph 3 of Article 14 of the Law “On Operational-Search Activities” dated September 15, 1994). Information concerning the methods of conducting covert investigative actions and the persons who conduct them, including persons carrying out activities on a confidential basis and in a covert manner, also constitutes state secrets and is not subject to disclosure (Part 2 of Article 241 of the CPC). Secrecy and confidentiality are among the principles of counterintelligence activities (subparagraph 5 of Article 4 of the Law of the Republic of Kazakhstan dated December 28, 2016, “On Counterintelligence Activities”). Documents of the National Cartographic and Geodetic Fund of the Republic of Kazakhstan are also carriers of information constituting state secrets (paragraph 7 of Article 12 of the Law “On Geodesy and Cartography” dated July 3, 2002), etc.

3. In turn, the expression “other secrets protected by law” is the subject of regulation by provisions of various laws. These include banking secrecy (Article 745 of the Civil Code, Article 50 of the Law dated August 31, 1995, “On Banks and Banking Activities in the Republic of Kazakhstan”); secrecy of notarial acts (Article 3 of the Law dated July 14, 1997, “On Notaries”); attorney-client privilege (Article 37 of the Law dated July 5, 2018, “On Advocacy and Legal Assistance”); information provided by individuals to state revenue authorities (concerning assets and liabilities, income and property) (paragraph 12 of Article 11 of the Law dated November 18, 2015, “On Combating Corruption”); secrecy of transactions conducted by a credit partnership (Article 21 of the Law dated March 28, 2003, “On Credit Partnerships”); commercial and official information on the securities market (Articles 41—43 of the Law dated July 2, 2003, “On the Securities Market”); official information about subscribers (paragraph 2 of Article 2 of the Law dated July 5, 2004, “On Communications”); insurance secrecy (Article 830 of the Civil Code); official and commercial secrets (Article 126 of the Civil Code); commercial secrets concerning the activities of a business entity (Article 28 of the Entrepreneurial Code of the Republic of Kazakhstan dated October 29, 2015); the contents of primary documents and accounting registers within the framework of commercial secrecy (Article 12 of the Law dated February 28, 2007, “On Accounting and Financial Reporting”); tax secrecy (Article 30 of the Tax Code dated December 25, 2017); information obtained during the examination and (or) treatment of a person within the framework of medical confidentiality (Article 95 of the Code of the Republic of Kazakhstan on Public Health and the Healthcare System dated September 18, 2009); information obtained by customs authorities in the field of customs affairs (Article 19 of the Code “On Customs Regulation in the Republic of Kazakhstan” dated December 26, 2017); secrecy of adoption (including adoption of a girl) (Article 102 of the Code “On Marriage (Matrimony) and Family” dated December 26, 2011), etc.

Alongside other secrets protected by law, legislation contains direct provisions specifying the nature of information that does not constitute such secrets and, consequently, that bodies conducting criminal proceedings must be aware of. For example, the amount and structure of the income of a non-profit organization, as well as information on the amount and composition of its property, its expenditures, the number and composition of its employees, their remuneration, and the use of unpaid labor by citizens in the activities of a non-profit organization do not constitute commercial secrets (paragraph 4 of Article 41 of the Law dated January 16, 2001, “On Non-Profit Organizations”); the audit report on the financial statements of the relevant accumulative pension fund (paragraph 2 of Article 54 of the Law dated June 21, 2013, “On Pension Provision in the Republic of Kazakhstan”); information about affiliated persons (paragraph 1 of Article 67 of the Law dated May 13, 2003, “On Joint-Stock Companies”), etc.

In general, the process of handling information constituting state secrets or other secrets protected by law may, as a rule, take place during investigative or judicial actions, as well as on the basis of written requests from bodies conducting criminal proceedings, duly formalized in accordance with the established procedure. Thus, bodies conducting criminal proceedings have the right to require individuals, legal entities and officials, as well as bodies carrying out operational-search activities, to provide documents and objects relevant to the case, subject to compliance with the procedure for issuing and disclosing information constituting commercial or other secrets protected by law, as established by legislative acts of the Republic of Kazakhstan (Part 2 of Article 122 of the CPC). For example, a ruling on the seizure of documents containing state secrets or other secrets protected by law must be sanctioned by an investigating judge (Part 1 of Article 254 of the CPC).

A defense counsel or representative of a victim who has been admitted, in accordance with the procedure established by the CPC, to participate in a pre-trial investigation or court proceedings has the right, subject to compliance with the procedure for non-disclosure of information constituting commercial and other secrets protected by law, as established by the aforementioned legislative acts of the Republic of Kazakhstan, to obtain information necessary for the exercise of the defense or representation of the victim's interests in the forms regulated by the CPC (Part 3 of Article 122 of the CPC).

An indisputable provision of the law is (no motions from participants in criminal proceedings are required in this regard) the direct obligation of the court to examine evidence constituting state secrets exclusively in a closed court hearing (Part 5 of Article 47 of the CPC). However, such categorical wording is not inherent in the procedure for examining evidence containing other secrets protected by law or revealing intimate aspects of private life, which is not mandatory but may also be the subject of a closed court hearing (Part 6 of Article 47 of the CPC; see the commentary to Article 29 of the CPC). It should be emphasized that the closed nature of such court proceedings does not mean that their participants are not admitted by the court to examine case materials (copies of documents) containing certain types of secrets and confidential information. On the contrary, as we have indicated above, participants in the proceedings may examine such materials in all cases, subject to compliance with the procedure for obtaining access to them, but only during the court hearing. Consequently, they are prohibited from making any copies of such materials, and even more so from removing them from the courtroom, under the threat of criminal liability (Part 9 of Article 47 of the CPC). These restrictions are entirely justified and do not contradict the meaning of the principles of adversarial proceedings and equality of the parties, comprehensive, complete and objective examination of the circumstances of the case, and inviolability of private life, which enables the court to render a just judgment. Undoubtedly, the closed nature of court proceedings in this category of cases is also reflected in the legislative prohibition against the court making public or disclosing, in its judgment or other judicial decision, case materials containing state secrets and other secrets protected by law. In other words, the court is entitled to refer to such materials, but is strictly prohibited from describing their contents, which follows from the logic of these court proceedings.

The foregoing considerations are closely connected with the requirements of the law that specifically stipulate the need to formalize access for certain participants in criminal proceedings to criminal cases whose materials contain state secrets. The CPC separately addresses this issue in relation to proceedings involving jurors, since the nature of the cases considered by them often falls within the regime for ensuring confidentiality (Parts 3—4 of Article 47 of the CPC). In the first case, matters relating to the formalization of access to state secrets for participants in criminal proceedings are handled by the body conducting criminal proceedings in cooperation with national security authorities, as well as departmental structural units responsible for the protection of state secrets. In the second case, this function is assigned to the bodies conducting criminal proceedings, the Department for Ensuring the Activities of Courts under the Supreme Court of the Republic of Kazakhstan (the Office of the Supreme Court of the Republic of Kazakhstan) (subparagraph 21 of paragraph 15 of Section 2 of the Decree of the President of the Republic of Kazakhstan dated November 3, 2010, “On Approval of the Regulations on the Department for Ensuring the Activities of Courts under the Supreme Court of the Republic of Kazakhstan”), as well as national security authorities. In general, the procedure for granting an official or citizen of the Republic of Kazakhstan access to state secrets is regulated by the Law dated March 15, 1999, “On State Secrets” (Articles 29—33), etc.

Useful information on the issue under consideration is contained in Regulatory Resolution No. 3 of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013, “On the Application in Criminal Proceedings of Certain Provisions of Legislation Regulating the Protection of State Secrets.” Paragraph 9 of this Regulatory Resolution, in particular, states that, in accordance with the requirements of Part 5 of Article 47 of the CPC, evidence containing information constituting state secrets shall be examined in a closed court hearing. Only participants in the proceedings who have access to state secrets under the relevant form of clearance may participate in such a hearing. Access to state secrets shall be formalized before the court hearing by the authorized body responsible for ensuring the activities of the court (the court administration) — in respect of judges, jurors, the court hearing secretary and other court employees; by the prosecution authorities — in respect of the public prosecutor; and by the justice authorities — in respect of defense lawyers and other participants in criminal proceedings. It is not permissible to restrict the issuance of access clearances to state secrets to defense lawyers on the grounds of a lack of available quotas or on other grounds not provided for by law. If, during the court proceedings, a defense counsel is replaced and another lawyer who does not have access to state secrets enters the case, the court shall adjourn the proceedings until the lawyer obtains the appropriate clearance. In this regard, the court ruling shall, in accordance with Part 1 of Article 341 of the CPC, establish a specific period for which the hearing of the case is adjourned, as well as the period within which the justice authorities are required to resolve the issue of formalizing the lawyer's access to state secrets. When evidence containing information constituting state secrets is examined during closed court proceedings, the presiding judge shall take measures to prevent the disclosure of state secrets by court bailiffs, convoy personnel and other persons ensuring the conduct of the court hearing.

The subject under consideration is naturally connected with the application of the principle of inviolability of private life in criminal proceedings. Therefore, compensation for damage caused by unlawful actions of the body conducting criminal proceedings as a result of a violation of the inviolability of private life or the disclosure of personal or family secrets, that is, failure to preserve confidentiality during proceedings in a criminal case, is also a matter of protecting and restoring the rights of the individual in accordance with the rules of Chapter 4 of the CPC (see the commentary to Articles 16, 37—42).

Confidentiality is an issue that arises from the moment a pre-trial investigation in a criminal case begins. If it is not observed, the overall effectiveness of proceedings in the case, their activity and their ability to produce results for the benefit of establishing the truth in the case may be lost at the early stages of the criminal case's progress to court. Moreover, irreparable harm will be caused not only to justice but also to the interests of the individual in criminal proceedings if the criminal prosecution authorities fail to take timely measures to ensure the confidentiality of proceedings in the case. In this regard, among the general conditions for conducting a pre-trial investigation, the CPC establishes a special article entitled “Inadmissibility of Disclosure of Pre-Trial Investigation Data” (Article 201), according to the provisions of which data from preliminary investigations and inquiries are not subject to disclosure. The inquiry officer or investigator shall obtain from all participants in specific investigative actions a written undertaking prohibiting the disclosure, without their permission, of information contained in the case file, while warning them of liability. In general, pre-trial investigation data may be made public only with the permission of the prosecutor, to the extent deemed possible by the prosecutor, and provided that this does not contradict the interests of the investigation or entail a violation of the rights and legitimate interests of other persons (see also the commentary to Article 29 of the CPC). Disclosure of pre-trial proceedings data entails criminal liability (Article 423 of the Criminal Code). Criminal liability is also предусмотрена for the disclosure of information concerning security measures applied to persons subject to state protection (Article 424 of the Criminal Code).

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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