Commentary on Article 5. Operation of Criminal Procedure Law in Time of the Criminal Procedure Code of the Republic of Kazakhstan

1. Criminal proceedings shall be conducted in accordance with the criminal procedure law that has entered into force by the time the procedural action is performed or the procedural decision is adopted.

2. The admissibility of evidence shall be determined in accordance with the law in force at the time such evidence was obtained.

As a general rule, the operation of criminal procedure law in time is determined by its entry into force and the termination of its operation (loss of legal force) in accordance with the procedure established by legislation. Therefore, it is important to be familiar with the general legal provisions governing the entry into force, commencement of operation, and loss of legal force of a normative legal act. The time of entry into force, commencement of operation, period of validity, suspension, and termination of the operation of normative legal acts are also established by the Law of the Republic of Kazakhstan “On Legal Acts” (Articles 42–46). Its provisions do not contradict the requirements of the Constitution of the Republic of Kazakhstan (see also Normative Resolution of the Constitutional Council dated October 29, 1999, No. 20/2, paragraph 1, operative part).

In other words, criminal proceedings in a criminal case are conducted in accordance with the rules of the criminal procedure law that is in force at the time the procedural decision is adopted or the procedural action is performed. During the relevant period, such law in the territory of Kazakhstan is the Criminal Procedure Code dated July 4, 2014, which entered into force on January 1, 2015. It was precisely from this date that all its procedural provisions began to be applied by lawyers, bodies of inquiry, investigators, prosecutors, judges, and other participants in criminal proceedings (see also the commentary on the provisions of Article 673 of the Criminal Procedure Code). Before January 1, 2015, the Criminal Procedure Code dated December 13, 1997, which had been put into effect in January 1998, was applied in the territory of Kazakhstan. Thus, the Criminal Procedure Code has temporal limits of operation and, like any normative legal act, may be repealed, amended, or supplemented.

In explaining the most important provisions governing the operation of a normative legal act in time, the Constitutional Council formulated them as follows: “...Paragraphs 2 and 8 of Article 62 of the Constitution of the Republic use the terms ‘enter into force’ and ‘put into effect’, which carry different semantic meanings and denote non-equivalent concepts. A draft law considered and approved by the Mazhilis and subsequently adopted by the Senate of the Parliament of the Republic in accordance with the procedure established by paragraph 4 of Article 61 of the Constitution becomes a law. However, this does not mean that it has acquired the full status of a law, since it can acquire the corresponding legal force only after the law has been signed by the Head of State, as stated in paragraph 2 of Article 62 of the Constitution. The signing of a law by the President of the Republic indicates that it has acquired complete legal force, taken its place in the hierarchy of normative legal acts, and become part of the legal system of the State. The mere fact that a law has acquired legal force does not yet mean that it has begun to regulate public relations and, therefore, cannot entail the expected legal consequences; in other words, it is a law that is not yet in operation. At this stage, it is still premature to speak of the completion of the legislative process. The constitutional procedure provides for the mandatory promulgation of laws. This follows from subparagraph 2) of Article 44 of the Constitution, which establishes the constitutional obligation of the Head of State to promulgate a law signed by him. This stage is the final one in the legislative process, after which it becomes possible to speak of the possibility of implementing the law, that is, the actual commencement of operation of the legal norm. This is also expressly stated in paragraph 4 of Article 4 of the Constitution: ‘All laws ... shall be published. Official publication of normative legal acts concerning the rights, freedoms and obligations of citizens is a mandatory condition for their application’” (Normative Resolution of the Constitutional Council dated October 29, 1999, No. 20/2, paragraph 1, descriptive and reasoning part).

3. According to the relevant subparagraph of paragraph 3 of Article 42 of the Law of the Republic of Kazakhstan “On Legal Acts”, legislative acts of the Republic of Kazakhstan shall be put into effect upon the expiration of ten calendar days after the date of their first official publication, unless other time limits are specified in the acts themselves or in the acts concerning their entry into force. This is a mandatory condition for putting into effect normative legal acts concerning the rights, freedoms, and obligations of citizens (paragraph 2 of Article 42). Official publications include the “Bulletin of the Parliament of the Republic of Kazakhstan”, the “Collection of Acts of the President of the Republic of Kazakhstan and the Government of the Republic of Kazakhstan”, as well as, in the Kazakh language, “Қазақстан Ұлттық Хабаршысы” and, in the Russian language, the “Bulletin of the National Bank of the Republic of Kazakhstan” (paragraph 1 of Article 37 of the Law). In law enforcement practice, the Law of the Republic of Kazakhstan “On Legal Acts” specifically stipulates that official publications of normative legal acts must be used (paragraph 5 of Article 37 of the Law).

Let us explain the above by the following example from the constitutional practice of the Constitutional Council. Having considered the submission of the Chairperson of the Saryarka District Court of Astana concerning the recognition of Article 36 of the Law of the Republic “On Normative Legal Acts” dated March 24, 1998, as unconstitutional in connection with the criminal case concerning the accusation of K. of committing a crime предусмотренное under Part 1 of Article 259 of the Criminal Code of the Republic of Kazakhstan, the Constitutional Council stated the following in the reasoning of its decision: “The Law of the Republic of Kazakhstan ‘On Amnesty in Connection with the Year of Unity and Continuity of Generations’ entered into force, pursuant to paragraph 2 of Article 62 of the Constitution of the Republic of Kazakhstan, after it was signed by the President of the Republic on July 13, 1999. This means that the present Law passed all legislative procedures and acquired legal force. Thus, it established the temporal limits for taking into account crimes committed by individuals that fall within the scope of the amnesty act, that is, up to and including July 13, 1999. The commencement of operation of the Law of the Republic of Kazakhstan ‘On Amnesty in Connection with the Year of Unity and Continuity of Generations’ begins upon the expiration of ten calendar days after its first official publication (August 8, 1999), since no other time limits are specified therein. These temporal parameters for putting into effect a law that has already acquired legal force are necessary for the adoption and implementation of appropriate organizational and legal measures by all departments and State bodies responsible for enforcing this law” (Normative Resolution of the Constitutional Council dated October 29, 1999, No. 20/2, paragraph 4, descriptive and reasoning part).

When examining the norms, provisions, and institutions of the Criminal Procedure Code in terms of their operation in time, it is also important to take into account the principle that a law does not have retroactive effect, meaning that it does not extend to legal relations that took place, existed, or arose before the law entered into legal force. Retroactive effect may be granted to a law in two cases: where this is expressly provided for in the law itself, and where the law mitigates or completely eliminates liability for an offense that was previously established (Article 43 of the Law “On Legal Acts”). These provisions are relevant to criminal proceedings not only because of the close relationship between its provisions and those of the Criminal Code, but also because of direct constitutional requirements. Thus, subparagraph 5) of paragraph 3 of Article 77 of the Constitution stipulates that laws establishing or increasing liability, imposing new obligations on citizens, or worsening their legal status shall not have retroactive effect. Furthermore, the second paragraph of this subparagraph states that if, after the commission of an offense, liability for it is abolished or mitigated, the new law shall apply (emphasis added by the author — M. K.) (see in greater detail “On Judicial Practice in the Application of Article 6 of the Criminal Code of the Republic of Kazakhstan”: Normative Resolution of the Supreme Court dated December 22, 2016, No. 15). These constitutional requirements, as applied to the meaning of the provision of Part 1 of Article 5 of the Criminal Procedure Code, also mean that a criminal procedure law imposing new obligations, abolishing or diminishing the rights belonging to participants in proceedings, or restricting the exercise of such rights by introducing additional conditions, shall not have retroactive effect.

The admissibility of evidence referred to in Part 2 of Article 5 shall be determined in accordance with the criminal procedure law that was in force at the time the evidence was obtained. Admissibility is one of the four characteristics of evidence provided for in Article 125 of the Criminal Procedure Code, “Assessment of Evidence” (along with relevance, reliability, and sufficiency), and, pursuant to Part 4 of the said provision, is understood as evidence obtained in the manner prescribed by the Criminal Procedure Code, that is, under the criminal procedure law in force at the time of its collection, examination, assessment, and use. Evidence obtained in compliance with the requirements of the Criminal Procedure Code in force may be actively used by the bodies conducting criminal proceedings in the process of establishing any of the circumstances subject to proof in each criminal case, for the purpose of its proper resolution (Article 113 of the Criminal Procedure Code). Ensuring the legality of evidence collection and preventing the obtaining of evidence in violation of the requirements of the Criminal Procedure Code are fundamental requirements of the Criminal Procedure Code (Articles 111–112).

Issues of evidentiary law have been comprehensively addressed in the special Normative Resolutions of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Assessment of Evidence in Criminal Cases”, “On Forensic Examination in Criminal Cases”, and others. “Evidence shall be recognized as inadmissible where the human and civil rights guaranteed by the Constitution of the Republic of Kazakhstan have been violated or the circumstances specified in Article 112 of the Criminal Procedure Code have been established,” the Supreme Court rules in the first of the aforementioned normative resolutions (paragraph 4). “Material violations of criminal procedure law committed during the discovery, seizure, and recording of objects of expert examination, as well as during the appointment and conduct of an expert examination, may result in the expert's report being recognized as inadmissible evidence,” the Supreme Court further clarifies in another normative resolution, using forensic examination as an example (paragraph 14 of the Normative Resolution of the Supreme Court “On Forensic Examination in Criminal Cases” dated November 26, 2004, No. 16).

The procedural inadmissibility of evidence obtained unlawfully is unequivocally recognized by international instruments. In order for criminal proceedings to be recognized as lawful, well-founded, and fair, evidence obtained through the use of torture must be excluded by the court as evidence of a person's guilt. Article 7 and subparagraph “d” of paragraph 3 of Article 14 of the International Covenant on Civil and Political Rights prohibit torture or cruel, inhuman, or degrading treatment or punishment. Compelling a person to testify against themselves or to confess guilt constitutes a serious violation of the legal safeguards of human rights in criminal proceedings. Article 15 of the Convention against Torture directly requires the court to exclude from judicial proceedings statements obtained through the use of torture, establishing that any statement which is established to have been made as a result of torture shall not be used as evidence, except where it is used against a person accused of committing torture as evidence that the statement was made.

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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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