Commentary on Article 6. Application of the Criminal Procedure Law to Foreigners and Stateless Persons of the Criminal Procedure Code of the Republic of Kazakhstan
1. Criminal proceedings against foreigners and stateless persons shall be conducted in accordance with this Code.
2. The specific features of criminal proceedings conducted against or involving persons enjoying diplomatic or other privileges and immunities established by international treaties of the Republic of Kazakhstan shall be determined in accordance with Chapter 57 of this Code.
- The institutions, rules and provisions of the Criminal Procedure Code characterizing the application of criminal procedure law to specific categories of persons are organically linked to the application of the Criminal Procedure Code in space and time. Within the territory of Kazakhstan, the Criminal Procedure Code applies to all its citizens in the event that they commit criminal offences provided for by the Criminal Code of the Republic of Kazakhstan.
At the same time, paragraph 1 of Article 2 of the International Covenant on Civil and Political Rights (ICCPR) establishes that each State undertakes to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognized therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 16 of the ICCPR further establishes that everyone shall have the right to recognition everywhere as a person before the law.
These international provisions are directly reflected in paragraph 4 of Article 12 of the Constitution, pursuant to which foreigners and stateless persons in the Republic enjoy the rights and freedoms and bear the obligations established for citizens, unless otherwise provided for by the Constitution, laws and international treaties.
- Article 15 of the Criminal Code of the Republic of Kazakhstan classifies as persons subject to criminal liability all sane natural persons who have attained the age at which this type of legal liability arises. Consequently, within the meaning of the provisions of this Article, such persons may include not only citizens of the Republic of Kazakhstan, but also foreigners and stateless persons.
- In accordance with Article 3 of the Law of the Republic of Kazakhstan dated 20 December 1991, “On Citizenship of the Republic of Kazakhstan”, citizens of the Republic of Kazakhstan are persons who permanently reside in the Republic of Kazakhstan on the date of entry into force of the aforementioned Law; persons born in the territory of the Republic of Kazakhstan who do not hold citizenship of a foreign State; and persons who have acquired citizenship of the Republic of Kazakhstan in accordance with the law. A national identity card or passport of a citizen of the Republic of Kazakhstan is a document confirming citizenship of the Republic of Kazakhstan. The citizenship of a child under the age of 16 is confirmed by the child's birth certificate and the passport of either parent (Article 4 of the Law).
Foreigners in the Republic of Kazakhstan are persons who are not citizens of the Republic of Kazakhstan and have evidence of their belonging to the citizenship of another State. Persons who are not citizens of the Republic of Kazakhstan and have no evidence of their belonging to the citizenship of another State are recognized as stateless persons (Article 2 of the Law of the Republic of Kazakhstan dated 19 June 1995, “On the Legal Status of Foreigners”).
The Law of the Republic of Kazakhstan dated 19 June 1995, “On the Legal Status of Foreigners”, provides that foreigners who commit criminal, administrative or other offences within the territory of the Republic of Kazakhstan shall be held liable on the same general grounds as citizens of the Republic of Kazakhstan, except in cases established by international treaties of the Republic of Kazakhstan (Article 25). The reason is that among foreign nationals there may be persons who enjoy immunity from the jurisdiction of the Republic of Kazakhstan in the field of criminal proceedings. Only such persons are subject to special international laws and the provisions of national criminal procedure legislation in this regard. A list of certain categories of the aforementioned foreign officials and citizens is provided in Chapter 57 of the Criminal Procedure Code and in treaties ratified by the Republic of Kazakhstan. Such privileges and immunities in the field of criminal proceedings are granted not for the personal benefit of individuals, but to ensure the effective and independent performance of the functions of diplomatic and other missions of international organizations as bodies representing the respective States within the territory of the receiving State.
In accordance with the United Nations Convention on Diplomatic Relations of 18 April 1961 (Resolution of the Supreme Council of the Republic of Kazakhstan dated 31 March 1993 (hereinafter referred to as the Resolution of the Supreme Council of the Republic of Kazakhstan)), the person of a diplomatic agent shall be inviolable. He or she shall not be liable to any form of arrest or detention. The receiving State shall treat the diplomatic agent with due respect and shall take all appropriate steps to prevent any attack on his or her person, freedom or dignity (Article 29). The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission. His or her papers and correspondence shall likewise be inviolable (Article 30). A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. A diplomatic agent shall not be obliged to give evidence as a witness. The immunity of a diplomatic agent from the jurisdiction of the receiving State shall not exempt him or her from the jurisdiction of the sending State (Article 31). The sending State may waive the immunity from jurisdiction of diplomatic agents and persons enjoying immunity. Such waiver must always be express (Article 32). The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles the import or export of which is prohibited by law or regulated by the quarantine regulations of the receiving State. Such inspection shall be carried out only in the presence of the diplomatic agent or his or her authorized representative (Article 36).
Members of the family of a diplomatic agent forming part of his or her household, members of the administrative and technical staff of the mission and members of their families forming part of their respective households shall also enjoy privileges and immunities, provided that they are not nationals of the receiving State. Members of the service staff of the mission who are not nationals of the receiving State or do not reside there permanently shall enjoy immunity in respect of acts performed in the course of their duties. Private servants of members of the mission, if they are not nationals of the receiving State or do not reside there permanently, may enjoy privileges and immunities only to the extent permitted by the receiving State (Article 37).
In addition to any additional privileges and immunities that may be granted by the receiving State, a diplomatic agent who is a national of the receiving State or permanently resident therein shall enjoy only immunity from jurisdiction and inviolability in respect of official acts performed in the exercise of his or her functions. Other members of the staff of the mission and private servants who are nationals of the receiving State or permanently resident therein shall enjoy privileges and immunities only to the extent permitted by the receiving State (Article 38).
Every person entitled to privileges and immunities shall enjoy them from the moment of entering the territory of the receiving State for the purpose of taking up his or her post or, if already within that territory, from the moment when his or her appointment is notified to the Ministry of Foreign Affairs or such other ministry as may have been agreed upon. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when that person leaves the country or upon the expiry of a reasonable period in which to do so, but shall subsist until that time, even in the event of armed conflict. However, immunity shall continue to exist in respect of acts performed by such a person in the exercise of his or her functions as a member of the mission. In the event of the death of a member of the mission, members of his or her family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the receiving country (Article 39).
If a diplomatic agent passes through or is in the territory of a third State which has granted him or her a visa, if such visa is required, while proceeding to take up or return to his or her post, or when returning to his or her own country, that third State shall accord the diplomatic agent inviolability and such other immunities as may be required to ensure his or her transit or return. This shall also apply to any members of his or her family enjoying privileges or immunities who accompany the diplomatic agent or travel separately to join him or her or return to their own country. In circumstances similar to those referred to above, third States shall not hinder the passage through their territory of members of the administrative and technical staff or service staff of the mission and members of their families. Third States shall accord to official correspondence and other official communications in transit, including coded or encrypted dispatches, the same freedom and protection as is accorded by the receiving State. They shall accord to diplomatic couriers who have been granted a visa, if such visa is required, and to diplomatic bags in transit the same inviolability and protection as the receiving State is obliged to provide. The obligations of third States provided for above shall also apply to persons, official communications and diplomatic bags whose presence in the territory of the third State is due to force majeure circumstances (Article 40).
A diplomatic courier, who must be provided with an official document indicating his or her status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his or her duties. He or she shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.
The sending State or the mission may appoint diplomatic couriers ad hoc. In such cases, the above provisions shall also apply, with the exception that the immunities referred to therein shall cease when the courier delivers the diplomatic bag entrusted to him or her to its destination.
A diplomatic bag may be entrusted to the captain of a civilian aircraft proceeding to an airport authorized for arrival. The captain must be provided with an official document indicating the number of packages constituting the bag, but he or she shall not be considered a diplomatic courier. The mission may send one of its staff members to take possession of the diplomatic bag directly and without hindrance from the captain of the aircraft (Article 27).
- According to the provisions of the United Nations Convention on Consular Relations of 24 April 1963 (Resolution of the Supreme Council of the Republic of Kazakhstan dated 31 March 1993), the personal inviolability of consular officers consists of the following:
“Consular officers shall not be liable to arrest or detention pending trial except in the case of a grave crime and pursuant to a decision by the competent judicial authorities (paragraph 1). Except in the cases specified in paragraph 1 of this Article, consular officers shall not be liable to imprisonment or any other form of restriction of their personal freedom, except in execution of judicial decisions that have entered into legal force (paragraph 2). If criminal proceedings are instituted against a consular officer, that person must appear before the competent authorities. Nevertheless, in the conduct of the proceedings, due respect shall be accorded to that person by reason of his or her official position and, except in the cases provided for in paragraph 1 of this Article, the proceedings shall be conducted in a manner that will cause the least possible interference with the exercise of consular functions. When it becomes necessary to detain a consular officer in accordance with paragraph 1 of this Article, proceedings against that person shall be instituted as soon as possible” (Article 41 of the United Nations Convention on Consular Relations).
In the event of the arrest or detention pending trial of any member of the consular staff or the institution of criminal proceedings against him or her, the receiving State shall immediately notify the head of the consular post. If the latter is himself or herself subject to such measures, the receiving State shall notify the represented State through diplomatic channels (Article 42 of the Convention on Consular Relations).
Consular officers and consular employees shall not be subject to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of their consular functions (paragraph 1 of Article 43 of the Convention on Consular Relations).
Members of the consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. A consular employee or a member of the service staff shall not be entitled to refuse to give evidence. If a consular officer refuses to give evidence, no coercive measures or penalties may be applied to him or her (paragraph 1 of Article 43 of the aforementioned Convention). The authority requiring the evidence of a consular officer shall avoid impeding the performance of that person's functions. It may, where possible, hear such evidence at the person's residence or at the consular post, or accept a written statement from that person (paragraph 2 of Article 43 of the Convention).
Members of the consular post shall not be obliged to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto. They shall also not be obliged to give evidence explaining the legislation of the represented State (paragraph 3 of Article 44 of the Convention). The represented State may waive any of the privileges and immunities of a member of the consular post provided for in Articles 41, 43 and 44 of the Convention.
Such waiver shall, as a rule, always be express and shall be communicated to the receiving State in writing (Article 45 of the Convention).
A consular courier shall be provided with an official document indicating his or her status and the number of packages constituting the consular bag. Except where the receiving State has given its consent, the courier may neither be a national of the receiving State nor, if he or she is not a national of the represented State, a person permanently resident in the receiving State. In the performance of his or her functions, the courier shall be protected by the receiving State. He or she shall enjoy personal inviolability and shall not be liable to any form of arrest or detention. The represented State, its diplomatic missions and consular posts may appoint consular couriers ad hoc. In such cases, the above provisions shall also apply, except that the immunities referred to therein shall cease when the courier delivers the consular bag entrusted to him or her to its destination. A consular bag may be entrusted to the captain of a ship or civilian aircraft proceeding to a port or airport authorized for arrival. The captain shall be provided with an official document indicating the number of packages constituting the bag, but shall not be considered a consular courier. By arrangement with the competent local authorities, the consular post may send one of its members to take possession of the bag directly and without hindrance from the captain of the ship or aircraft (Article 35 of the United Nations Convention on Consular Relations of 24 April 1963).
Privileges and immunities applicable in criminal procedure are also characteristic of the activities of the relevant persons of the Interparliamentary Assembly of the Member States of the Commonwealth of Independent States. In particular, in accordance with Article 15 of the Convention on the Interparliamentary Assembly of the Member States of the Commonwealth of Independent States of 26 May 1995, ratified by the Law of the Republic of Kazakhstan dated 10 June 1997, subject to the exceptions established in paragraphs 2 and 3 of Article 15 of this document, members of parliamentary delegations of the participating States, officials of the Interparliamentary Assembly and experts on missions for the Interparliamentary Assembly shall enjoy, in the territory of the participating States, a regime no less favourable, with regard to privileges, immunities and benefits, than that accorded respectively to representatives of the United Nations, officials of the United Nations and experts on missions for the United Nations under the Convention on the Privileges and Immunities of the United Nations of 13 February 1946 (adopted by Resolution 22 A of the UN General Assembly; Kazakhstan acceded to it on the basis of the Resolution of the Supreme Council of the Republic of Kazakhstan dated 20 February 1995) (paragraph 1). However, as the aforementioned document further states, the provision of this paragraph of Article 15 shall not apply to relations between a member of a parliamentary delegation and the State of which that person is a national (paragraph 2 of Article 15). Furthermore, the provisions of paragraphs (c), (d), (e), (f) and (g) of Section 18 of Article V of the Convention on the Privileges and Immunities of the United Nations shall not apply to officials of the Interparliamentary Assembly who are nationals of the State in whose territory the headquarters of the Interparliamentary Assembly or the body or bodies in which such persons work are located (paragraph 3 of Article 15). In general, privileges and immunities are granted to members of parliamentary delegations of the participating States, officials of the Interparliamentary Assembly and experts on missions for the Interparliamentary Assembly not for their personal benefit, but to ensure the independent performance of their functions related to their work in the Interparliamentary Assembly.
The parliament of a State Party to the Convention, acting in accordance with its internal rules and procedures, not only has the right but is also obliged to waive the immunity of its representative in every case where, in its opinion, immunity impedes the administration of justice, provided that such waiver does not prejudice the purpose for which the immunity was granted. The Secretary General shall have the right and the obligation to waive the immunity of any official of the Interparliamentary Assembly, as well as of any expert on a mission for the Interparliamentary Assembly, in cases where, in his or her opinion, immunity impedes the administration of justice and may be waived without prejudice to the interests of the Interparliamentary Assembly. With regard to the Secretary General, the right to waive immunity shall belong to the Council of the Assembly (paragraph 4 of Article 15). The Interparliamentary Assembly shall cooperate continuously with the relevant authorities of the participating States in order to facilitate the proper administration of justice, ensure the implementation of recommendations made by law enforcement authorities and prevent any abuse in connection with the privileges, immunities and benefits granted in accordance with the Convention (paragraph 5 of Article 15).
The provisions of the Convention on the Privileges and Immunities of the Shanghai Cooperation Organisation of 17 June 2004 (ratified by the Law of the Republic of Kazakhstan dated 15 December 2005) shall also be taken into account in criminal proceedings in a similar manner. In accordance with this Convention, officials within the territories of the Member States shall not be subject to criminal, civil or administrative liability for words spoken or written by them and for all acts performed by them in their official capacity, except for claims for compensation for damage arising from a traffic accident caused by a vehicle belonging to the Organisation or an official, or driven by such person; and claims for compensation for damage arising from death or bodily injury caused by an act of an official (Article 11). Officials and members of their families shall enjoy the privileges and immunities provided for by the Shanghai Convention from the moment they enter the territory of the receiving State while proceeding to their place of assignment or, if they are already within that territory, from the moment the officials commence the performance of their duties. Upon termination of the functions of an official, his or her privileges and immunities, as well as the privileges and immunities of members of his or her family who are not nationals of the receiving State, shall cease when that person leaves the receiving State or upon the expiry of a reasonable period for doing so. The privileges and immunities of family members shall cease when such persons cease to be family members, provided, however, that if such persons intend to leave the receiving State within a reasonable period, their privileges and immunities shall remain in force until their departure. In the event of the death of an official, members of his or her family shall continue to enjoy the privileges and immunities granted to them until they leave the receiving State or until the expiry of a reasonable period for leaving the receiving State (Article 14).
The privileges and immunities enjoyed by officials are granted to them not for their personal benefit, but to ensure the effective and independent performance of their official functions in the interests of the Shanghai Cooperation Organisation. The right to waive immunity in respect of the Executive Secretary shall belong to the Council of Heads of State of the Member States of the SCO, upon the recommendation of the Council of Ministers of Foreign Affairs of the Member States of the SCO. The right to waive immunity in respect of the Director and his or her deputies shall belong to the Council of Heads of State of the Member States of the SCO, upon the recommendation of the Council of the RATS. The right to waive immunity in respect of the Deputy Executive Secretaries shall belong to the Council of Ministers of Foreign Affairs of the Member States of the SCO, upon the recommendation of the Council of National Coordinators of the Member States of the SCO. The right to waive immunity in respect of other officials of the Secretariat shall belong to the Executive Secretary, with the consent of the Council of National Coordinators of the Member States of the SCO, while in respect of officials of the Executive Committee, it shall belong to the Director, with the consent of the Council of the RATS. The waiver of immunity must be express (Article 15).
- Experts performing assignments of the SCO, other than officials, shall enjoy, during their business trips, including the time spent travelling in connection with such business trips, the privileges and immunities necessary for the independent performance of their functions. In particular, they shall be granted immunity from personal arrest or detention and seizure of their personal baggage; immunity from criminal, civil and administrative liability in respect of words spoken or written and acts performed by them in the course of the performance of their official duties, such immunity continuing to apply even after the persons concerned have ceased to be on assignment on the Organization's business; inviolability of all their papers and documents; and the immunities and privileges granted to diplomatic representatives in respect of their personal baggage. Privileges and immunities are granted to experts performing assignments of the SCO not for their personal benefit, but in the interests of the SCO. The right to waive the immunity of experts performing assignments of the SCO shall belong, respectively, to the Executive Secretary, with the consent of the Council of National Coordinators, and to the Director, with the consent of the Council of the RATS. A waiver of immunity must be expressly stated (Article 17).
- Representatives of the Member States shall, in the performance of their official duties and when travelling to and from the venues of events organized by the SCO in the Member States, enjoy the following privileges and immunities: immunity from personal arrest or detention and seizure of their personal baggage, as well as immunity from criminal, civil and administrative liability in respect of all words spoken or written and all acts performed by them in their capacity as representatives; inviolability of all their papers and documents; and the immunities and privileges granted to diplomatic representatives in respect of their personal baggage, etc. In order to ensure fully their freedom of speech and independence in the performance of their official duties, representatives of the Member States of the Organization shall be immune from criminal, civil and administrative liability in respect of words spoken or written by them, as well as all acts performed by them in the course of the performance of their official duties. This immunity shall continue to apply even after the persons concerned have ceased to be representatives of the Member States. The privileges and immunities granted to representatives of the Member States of the Organization are intended not for the personal benefit of individual persons, but to ensure the independent performance of their functions related to the work of the SCO. A Member State of the Organization shall have not only the right, but also the obligation, to waive the immunity of its representative in every case where it considers that such immunity would impede the administration of justice, provided that such waiver does not prejudice the purpose for which the immunity was granted (Article 18). In addition, pursuant to Article 19 of the Convention, the Member States shall, in accordance with their internal rules and procedures, appoint their permanent representatives to the Secretariat from among the diplomatic personnel of the embassies of the Member States in the State where the Secretariat is located. Permanent representatives shall enjoy, in the host State, privileges and immunities to the extent provided for diplomatic agents.
- The Treaty on the Eurasian Economic Union of 29 May 2014 (ratified by the Law of the Republic of Kazakhstan of 14 October 2014) also contains provisions concerning certain privileges and immunities of the Union, members of the Board of the Commission, judges of the Court of the Union, officials and employees of the Union, and representatives of the Member States, which are applicable in criminal procedural activities. Their scope is established in the Regulation on Social Guarantees, Privileges and Immunities in the Eurasian Economic Union (Annex No. 32 to the Treaty).
- Privileges and immunities for the personnel of the United Nations Representation in Kazakhstan, as well as for the Representation itself, its employees, experts and auxiliary personnel, are provided not for their personal benefit, but in the interests of the United Nations (in accordance with the requirements of the above-mentioned Convention on the Privileges and Immunities of the United Nations), pursuant to Articles 7–9 of the Agreement between the United Nations and the Government of the Republic of Kazakhstan on the Establishment of the United Nations Representation in Kazakhstan dated 5 October 1992 (ratified by the Law of the Republic of Kazakhstan of 20 February 2012), etc.
- Thus, a partial analysis of the individual international instruments cited above demonstrates the existence of a body of provisions concerning privileges and immunities for persons directly involved in the field of criminal proceedings.
- In this regard, the bodies and officials conducting criminal proceedings must be familiar with these provisions and be guided by them in their criminal procedural activities in order to avoid undermining the reputation of Kazakhstan as a state governed by the rule of law.
- Commentary to the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishuly Kogamov, 2020. Doctor of Law, Honoured Lawyer of Kazakhstan, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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