Commentary on Article 64. Suspect of the Criminal Procedure Code of the Republic of Kazakhstan

1. A person shall be deemed a suspect if:

1) a resolution recognizing the person as a suspect has been issued in respect of that person;

2) the person has been detained in accordance with the procedure established by Article 131 of this Code;

3) a resolution on the qualification of the suspect’s act has been issued in respect of that person;

4) the person has been questioned in connection with the existence of suspicion of having committed a criminal misdemeanor.

2. At the moment of detention, the criminal prosecution authority shall immediately, before commencing any investigative actions involving the suspect, explain to the suspect the rights provided for by this Code, which shall be recorded in the detention report, the report of questioning the suspect, and the resolutions recognizing the person as a suspect and on the qualification of the suspect’s act.

3. In the event of the suspect’s detention, the suspect shall be questioned no later than twenty-four hours from the moment the detention report is drawn up, while ensuring the right to meet privately and confidentially with the defense counsel chosen or appointed by the suspect before the first questioning.

A detained suspect shall have the right to immediately notify, by telephone or by other means, persons at their place of residence or work of their detention and place of confinement.

If there are grounds to believe that notification of the detention may obstruct the pre-trial investigation, the official of the criminal prosecution authority carrying out the detention may independently notify the detained person’s adult family members and close relatives. Such notification shall be made without delay.

A record of such notification shall be made in the detention report, indicating the time and method of notification of the detention.

4. If the suspect evades appearing before the criminal prosecution authority, the suspect shall be questioned on the substance of the suspicion immediately after being brought in by force, and in other cases — no later than the completion of the pre-trial investigation, while observing the right to meet privately with the defense counsel.

5. The suspect shall be questioned regarding the existing suspicion against them, as well as other circumstances known to them that are relevant to the case and the evidence.

6. If the suspect has not exercised the right to refuse to give testimony before the commencement of the first questioning, the suspect shall be warned that their testimony may be used as evidence in criminal proceedings, including in the event of their subsequent refusal to give such testimony.

7. Having found the suspicion to be unfounded, the pre-trial investigation authority shall immediately take measures to revoke the procedural coercive measures applied against the suspect in accordance with the procedure established by this Code.

8. A person shall cease to hold the status of a suspect from the moment they acquire the status of an accused person or the pre-trial investigation against them is terminated.

9. A suspect shall have the right to:

1) receive an explanation of their rights from the person who carried out the detention;

2) know what they are suspected of;

3) invite a defense counsel independently or through their relatives or trusted persons. If the defense counsel has not been invited by the suspect, their relatives or trusted persons, the criminal prosecution authority shall be obliged to ensure the participation of a defense counsel in accordance with the procedure provided for in part three of Article 67 of this Code;

4) enjoy the rights of a civil defendant if recognized as such in connection with the filing of a civil claim in the case;

5) have a private and confidential meeting with the defense counsel chosen or appointed, including before the commencement of questioning;

6) give testimony only in the presence of a defense counsel, except in cases of refusal of such counsel;

7) receive copies of the resolutions recognizing the person as a suspect and civil defendant, the resolution on the qualification of the act, the detention report, the motion and resolution on the selection and extension of the term of a preventive measure, and the resolution terminating the criminal case;

8) refuse to give testimony;

9) receive from the person conducting the pre-trial investigation an explanation of the procedure and conditions for applying bail as a preventive measure and other measures not involving detention in custody;

10) present evidence;

11) submit motions, including motions for the adoption of security measures, and challenges;

12) give testimony in their native language or in a language they speak;

13) use the free assistance of an interpreter;

13-1) apply to the probation service for the conduct of pre-trial probation in respect of themselves;

14) with the permission of the criminal prosecution authority, participate in investigative actions conducted upon their own motion or upon the motion of their defense counsel or legal representative;

15) reconcile with the victim in cases provided for by law, including through mediation;

16) at any stage of the investigation, submit a motion to the prosecutor or express their consent to conclude a procedural agreement with the prosecutor, setting out their proposals regarding the type and measure of punishment, and conclude a procedural agreement;

16-1) submit a motion for the application of summary proceedings in a case involving a criminal misdemeanor or a minor-gravity crime;

17) familiarize themselves with the reports of investigative actions conducted with their participation and submit comments on such reports;

18) lodge complaints against the actions (inaction) and decisions of the investigator, inquiry officer, prosecutor and court;

19) defend their rights and legitimate interests by other means not contrary to the law;

20) when an expert examination is appointed and conducted, as well as when the expert’s report is presented to them, perform the actions provided for by Articles 274 and 286 of this Code;

21) in accordance with the procedure established by this Code, upon completion of the investigation, familiarize themselves with the case materials and make extracts of any information from them, as well as make copies using scientific and technical equipment, with the exception of information constituting state secrets or other secrets protected by law;

22) object to the termination of criminal prosecution;

23) be immediately notified by the body conducting the criminal proceedings of the adoption of procedural decisions affecting their rights and legitimate interests, except for matters relating to covert investigative actions, and receive copies of such decisions;

24) submit a motion for additional questioning of a witness testifying against them, for summoning and questioning persons indicated by them as witnesses, and for conducting confrontations with such persons.

10. The presence of a defense counsel or legal representative of the suspect may not serve as grounds for eliminating or restricting any right of the suspect.

Note. Article 64 was amended by the Laws of the Republic of Kazakhstan dated December 30, 2016 No. 39-VI (shall enter into force upon the expiration of ten calendar days after the day of its first official publication); and dated December 21, 2017 No. 8-VI (shall enter into force upon the expiration of ten calendar days after the day of its first official publication).

A suspect, that is, a person presumed to have committed a crime, is not yet an accused person. Within the meaning of the title of Chapter 9 of the Criminal Procedure Code, a suspect is a person defending their rights and interests (the defense side).

The figure of the suspect is characteristic of cases involving private-public and public prosecution and accusation.

As a rule, there are no suspects in private prosecution cases (Part 1 of Article 32, Part 1 of Article 64, Articles 407–413 of the CPC). The appearance of a suspect in a criminal case occurs on several grounds (Part 1 of Article 64 of the CPC).

In the cases specified in subparagraphs 1) and 3) of Part 1 of Article 64 of the CPC, a suspect appears as a result of the ADOPTION of a procedural decision based on the case materials; on the grounds provided for in subparagraphs 2) and 4) of Part 1 of Article 64 of the CPC, the suspect appears as a result of the use of evidence in a criminal case, but through the conduct of investigative actions, detention or questioning of the person as a suspect.

The differences are already apparent from the list itself, from which it follows that the grounds specified in subparagraphs 1)–3) of Part 1 of Article 64 of the CPC apply to a person in connection with the commission of a crime by that person, whereas the grounds specified in subparagraphs 2) and 4) of Part 1 of Article 64 of the CPC establish the appearance of a suspect in connection with the commission of a criminal misdemeanor by the person (Part 1 of Article 128 of the CPC).

The basis for these differences lies in the different forms of pre-trial investigation of a criminal case, which have their own impact on the emergence of the figure of the suspect.

For example, in criminal cases involving criminal misdemeanors, the person who committed them is generally not detained, within the meaning of Articles 526–529 of the CPC.

If this does occur, the person may be detained only in cases where they intend to abscond or commit a more serious act (Part 1 of Article 128 of the CPC). As a rule, a person whose case is being conducted under the procedure of summary proceedings is also not subject to detention; however, such a person may be detained on the grounds specified by law (Part 1 of Article 128, Part 6 of Article 629-1, Part 4 of Article 629-3 of the CPC).

“Any person shall, at the moment of arrest and at the beginning of detention or imprisonment, or shortly thereafter, be informed of their rights and of how to exercise those rights by the authority responsible for the arrest, detention or imprisonment, as applicable,” states Principle 13 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (adopted by the UN General Assembly Resolution of December 9, 1988).

“Factual data shall be recognized as inadmissible as evidence if they have been obtained ... through the use of a person's misconception regarding their rights and obligations arising as a result of failure to explain, incomplete explanation or incorrect explanation thereof,” continues subparagraph 2) of Part 1 of Article 112 of the CPC.

Therefore, attaching great importance to this circumstance, the CPC, having established the moment at which a person becomes a suspect, places primary importance on the immediate explanation of their rights, starting from the moment of actual detention at any location and continuing until the commencement of their participation in specific procedural or investigative actions (Part 2 of Article 64 of the CPC).

It would not be superfluous to repeat the scope of the suspect’s rights at the moment of their actual detention, which are announced only once and exclusively in this particular situation:

“When detaining a person on suspicion of committing a criminal offense, an official of the criminal prosecution authority shall orally inform the person of the criminal offense on suspicion of which they are being detained, explain their right to invite a defense counsel, their right to remain silent, and that anything they say may be used against them in court.

If the detained person does not speak Kazakh and (or) Russian, their rights shall be explained in the presence of an interpreter and a defense counsel before the commencement of questioning as a suspect, which shall be recorded in the questioning report” (Part 1 of Article 131 of the CPC).

It is important not merely to announce these rights to the suspect, but to explain their meaning and the consequences they may have for the suspect’s future (Part 6 of Article 64 of the CPC).

At the same time, any reduction of these rights during their oral announcement or any other interpretation of them is impermissible.

“An arrested or detained person shall be provided with adequate time and facilities for consultation with their legal counsel,” states paragraph 2 of Principle 18 of the aforementioned Body of Principles.

Moreover, “Meetings between a detained or imprisoned person and their legal counsel may take place within sight, but not within hearing, of a law enforcement official,” continues paragraph 4 of this Principle.

That is why, simultaneously with the explanation of the suspect’s rights, the CPC places among its priorities and regulates in detail the work with a person recognized as a suspect during the first twenty-four hours after their detention and the drawing up of the corresponding report: the immediate invitation of a defense counsel and the suspect’s communication with that counsel before the commencement of the first questioning in this capacity.

“An arrested or detained person shall have the right to notify, or to have the competent authority notify, members of their family or other appropriate persons of their choice of their arrest, detention or imprisonment, or of their transfer and of the place where they are being held” (paragraph 1);

“Any notification ... shall be sent or permitted to be sent by the competent authority without delay.

The competent authority may, however, delay a notification for a reasonable period where exceptional circumstances of the investigation so require” (paragraph 16), state the provisions of Principle 16 of the aforementioned Body of Principles.

“Notwithstanding the exceptions contained in paragraph 4 of Principle 16, an arrested or detained person may be denied communication with the outside world, and in particular with their family or legal counsel, for a period not exceeding several days,” specifies and establishes Principle 15 of the Body of Principles.

In this regard, Part 3 of Article 64 of the CPC obliges the body conducting the criminal proceedings to record in the detention report the time and method of notifying the suspect’s family members and close relatives of the fact of the detention.

The questioning of a suspect, the necessity of which is mandatory in all cases in a criminal case, serves as grounds for verifying the suspect’s arguments in their defense and for the further progress of the criminal case (Parts 4–6 of Article 64 of the CPC). Without questioning a person as a suspect, a criminal case cannot be transferred to the prosecutor.

Even if the suspect is absent from the place of investigation for various reasons, they shall in all cases be questioned once the circumstances that served as grounds for interrupting the period of the pre-trial investigation cease to exist (Parts 7–9 of Article 45 of the CPC). According to Part 1 of Article 128 of the CPC, the detention of a suspect in the commission of a criminal offense, as a measure of procedural coercion, is applied by the criminal prosecution authority for the purpose of preventing the crime and resolving the issue of applying detention in custody as a preventive measure against the person, or for ensuring proceedings in respect of a criminal misdemeanor where there are grounds to believe that the person may abscond or commit a more serious act.

This circumstance makes it possible to assume that detention in custody and other measures of procedural coercion may be applied to the detained person, and that, if the suspicion is not confirmed, such measures shall be immediately revoked by the means provided for by the CPC (Part 7 of Article 64, Articles 133 and 139).

The change in the procedural status of a suspect to that of an accused person occurs in five cases, including upon the prosecutor’s approval of: the indictment (subparagraph 1) of Part 1 of Article 302 of the CPC); the resolution on the application of summary proceedings in cases involving minor-gravity crimes (subparagraph 1) of Part 4 of Article 629-3 of the CPC); the resolution terminating the criminal case (Part 8 of Article 64, subparagraphs 1) and 3) of Article 290 of the CPC); as well as upon the conclusion of a procedural agreement (Part 1 of Article 65 of the CPC); and upon approval by the head of the inquiry body of the resolution on the application of summary proceedings in a case involving a criminal misdemeanor (the relevant subparagraph of Part 1 of Article 629-3 of the CPC).

The interpretation of the rights of a suspect provided for in Part 9 of Article 64 of the CPC requires the utmost attention from the bodies conducting criminal proceedings.

It should be noted that the law imposes no obligations on a suspect, except in cases where certain measures of procedural coercion are applied to them that entail the imposition of specific obligations, for example, within the framework of selecting a written undertaking not to leave the place of residence and to maintain proper conduct, bail, house arrest, an obligation to appear, or a restraining order (Section 4 of the CPC).

The explanation of the suspect’s rights, within the meaning of subparagraph 1) of Part 9 of Article 64 of the CPC, encompasses all their rights specified in Part 9 of Article 64 and Articles 131 and 216 of the CPC:

it takes place from the moment of the person’s actual detention, with this action being recorded in the detention report; before the commencement of questioning as a suspect;

before the announcement of the resolution recognizing the person as a suspect;

before the announcement of the resolution on the qualification of the suspect’s act and when other procedural or investigative actions involving the suspect are conducted.

The explanation of the substance of the suspicion (subparagraph 2) of Part 9 of Article 64 of the CPC) takes place:

— before the commencement of the first questioning of the person as a suspect and after the suspect has been informed of the criminally punishable act of which they are suspected, as well as after being explained their rights provided for in Part 9 of Article 64 of the CPC, including the right to refuse to give testimony (Parts 1–2 of Article 216 of the CPC).

— after the person conducting the pre-trial investigation has verified the identity of the suspect and the assignment authorizing the defence counsel to conduct the defence, the person announces the ruling on the legal classification of the suspect’s act to the suspect and their defence counsel (Parts 3–4 of Article 206 of the CPC).

The clarification of the suspicion includes: announcing the legal classification of the criminal offence, indicating the number and title of the article, its part and subparagraph; providing an understandable explanation of the objective and subjective elements of the offence, as well as the types and amounts of punishment prescribed for its commission.

The status of a suspect is closely connected with cases involving the mandatory participation of defence counsel, as provided for in Part 1 of Article 67 of the CPC (Subparagraph 3 of Paragraph 9 of Article 64 of the CPC).

Therefore, recognition of a person as a suspect on the grounds specified in Part 1 of Article 64 of the CPC generally presupposes the mandatory participation of defence counsel, who is brought into the proceedings at the initiative of the parties to the pre-trial investigation.

Quite often, a suspect simultaneously participates in the case as a civil defendant (Subparagraph 4 of Paragraph 9 of Article 64 of the CPC), and in this regard possesses the full range of rights and obligations of a civil defendant provided for in Article 74 of the CPC, which they exercise independently or with the participation of a representative.

The rule contained in Subparagraph 5 of Paragraph 9 of Article 64 of the CPC is a classical provision and reproduces the rule of Part 3 of Article 64 of the CPC concerning the suspect’s regular confidential communication with their defence counsel for the purpose of obtaining legal advice on the case.

The suspect has the right to waive the participation of defence counsel, except in the cases specified in Article 69 of the CPC.

If the suspect does not waive the participation of defence counsel in the case, this means that the defence counsel must be present not only during the questioning of the suspect but also during all other procedural and investigative actions conducted with their participation (Subparagraph 6 of Paragraph 9 of Article 64 of the CPC).

The rule contained in Subparagraph 7 of Paragraph 9 of Article 64 of the CPC lists the nine principal procedural documents, copies of which must be served on the suspect for the purpose of exercising their defence during the pre-trial investigation.

Upon the suspect’s motion, they may receive copies of other procedural and investigative documents during the investigation, and during the period of familiarisation with the case materials, they may also make copies of documents, including by means of scientific and technical equipment, with the exception of information containing state secrets or other secrets protected by law (Part 2 of Article 296 of the CPC).

Refusal to give testimony (Subparagraph 8 of Paragraph 9 of Article 64 of the CPC) effectively also means the suspect’s refusal to participate in other investigative actions requiring their presence.

However, this does not apply to cases involving the compulsory collection of samples from a suspect (Part 1 of Article 268 of the CPC), or cases involving the compulsory referral of a suspect who is not held in custody to a medical organisation for the purpose of conducting forensic psychiatric and/or forensic medical examinations, which is permitted only pursuant to a court decision (Part 2 of Article 14, Part 2 of Article 279 of the CPC).

Where a suspect refuses to give testimony, they must be informed of the significance of testimony for the proper resolution of the criminal case.

In this regard, it is important not to confuse the provisions of Part 2 of Article 216 of the CPC with a suspect’s refusal to give testimony.

Part 2 of Article 216 of the CPC provides:

“Having explained the substance of the suspicion to the suspect, the person conducting the pre-trial investigation shall ascertain whether the suspect admits their guilt, in whole or in part, or denies their guilt in committing the criminal offence.

The suspect’s refusal to answer shall be regarded as a denial of their guilt.”

That is, by not giving a direct answer during questioning, the suspect may present arguments concerning the suspicion brought against them as set out in the ruling on the legal classification of their act.

The rule contained in Subparagraph 9 of Paragraph 9 of Article 64 of the CPC concerns procedural coercive measures that do not involve deprivation of liberty before trial. Therefore, prior to the application of detention as a preventive measure, it is the obligation of the criminal prosecution authority to explain the conditions, grounds, sequence and procedure for applying these measures in all cases.

The rule contained in Subparagraph 10 of Paragraph 9 of Article 64 of the CPC does not contradict the operation of the principle of the presumption of innocence, the process of proving the circumstances subject to determination in the case, or the rules governing the collection of evidence (Articles 19 and 121, Part 4 of Article 122 of the CPC).

Despite the provisions of the law stating that no one is obliged to prove their innocence and that the burden of proving the grounds for criminal liability and the guilt of the suspect or accused rests with the prosecution, the suspect has the right to provide information, both orally and in writing, as well as objects and documents, for their inclusion in the criminal case as evidence (Part 4 of Article 122 of the CPC).

The rules contained in Subparagraph 11 of Paragraph 9 of Article 64 of the CPC apply from the moment a suspect appears in the case and throughout the entire pre-trial investigation.

This applies to motions submitted by the suspect concerning various matters relating to the investigated case, including motions for the application of security measures in respect of the suspect.

Some of these are already reflected in the provisions of Paragraph 9 of Article 64 of the CPC. Subsequently, these and other motions may be submitted by the accused or defendant at any stage of the criminal proceedings (Article 86 of the CPC).

Security measures occupy a significant place in criminal proceedings, and their disclosure is punishable under criminal law (Articles 95–97 of the CPC, Article 424 of the Criminal Code). The right to challenge an investigating judge, prosecutor, inquiry officer or investigator is a direct right of the suspect, and such challenges must be substantiated (Part 1 of Article 87, Articles 88–89 of the CPC).

The rules contained in Subparagraphs 12–13 of Paragraph 9 of Article 64 of the CPC express the operation of the principle governing the language of judicial proceedings, which we discussed above (see Article 30 of the CPC).

Failure to comply with the language of judicial proceedings is regarded by all courts as a substantial violation of the provisions of the CPC and constitutes grounds for the unconditional reversal of a judgment (Subparagraph 5 of Paragraph 3 of Article 436 of the CPC, etc.).

The rules contained in Subparagraph 13-1 of Paragraph 9 of Article 64 of the CPC implement the suspect’s right to undergo pre-trial probation on a voluntary basis, as provided for by the Law of the Republic of Kazakhstan dated 30 December 2016 “On Probation”.

According to the Law, pre-trial probation is carried out upon the written application of a person specified in Paragraph 1 of Article 13 of that Law, starting from the moment the person submits the application. Social and legal assistance within the framework of pre-trial probation consists of the measures listed in Article 6 of the aforementioned Law.

The probation service draws up an individual programme for the provision of social and legal assistance in respect of the person and ensures its implementation.

Based on the results of the implementation of the said programme, as well as on the basis of information obtained in accordance with the procedure provided for in Subparagraph 9 of Paragraph 2 of Article 9 of the aforementioned Law, the probation service prepares a pre-trial report, which is submitted to the person subject to pre-trial probation before the commencement of the trial.

The said person may participate in the preparation of the pre-trial report and express their opinion regarding its content, which must be reflected in the pre-trial report. If the criminal case is terminated at the pre-trial investigation stage, the probation service terminates pre-trial probation.

At the same time, the provision of social and legal assistance to the person continues in accordance with the individual programme for the provision of social and legal assistance (Paragraphs 2–5 of Article 13 and Article 14 of the Law “On Probation”).

A suspect has the right to participate only in those investigative actions initiated by the defence, provided that permission has been granted by the criminal prosecution authority (Subparagraphs 14 and 17 of Paragraph 9 of Article 64 of the CPC). The course, content and results of the investigative action, as well as statements and comments made by its participants, including the suspect, shall be recorded in the protocol before it is signed (Article 199 of the CPC).

The importance of the protocol of an investigative action is indisputable, since it constitutes a source of evidence in a criminal case (Part 2 of Article 11 of the CPC).

Therefore, the requirements for drawing up a protocol of an investigative action are set out in a separate article of the CPC, which establishes the rules that must be followed when preparing its introductory, descriptive and concluding parts (Article 199 of the CPC).

The conditions, grounds, sequence and procedure for reconciliation between a suspect and a victim, including through mediation, are governed by Article 68 of the Criminal Code (Subparagraph 15 of Paragraph 9 of Article 64 of the CPC).

Reconciliation, including through mediation, does not apply to persons who have committed crimes through negligence resulting in the death of a person or the death of two or more persons, corruption crimes, terrorist crimes, extremist crimes, crimes committed as part of a criminal group, or crimes against the sexual inviolability of minors under the age of fourteen (Part 4 of Article 68 of the Criminal Code).

The rule contained in Subparagraph 16 of Paragraph 9 of Article 64 of the CPC concerns the conclusion of an agreement in the form of a plea bargain or a cooperation agreement, which are governed by Articles 612–629 of the CPC. We will examine these institutions of criminal procedure in greater detail when commenting on the provisions of Section 13 of the CPC.

Briefly, the investigation of criminal cases within the framework of a concluded procedural agreement is conducted:

in the form of a plea bargain — in cases involving criminal offences of minor gravity, medium gravity or serious crimes, provided that the suspect or accused agrees with the suspicion or accusation;

in the form of a cooperation agreement — in cases involving all categories of crimes, where assistance is provided in the detection and investigation of crimes committed by a criminal group, particularly serious crimes committed by other persons, as well as extremist and terrorist crimes.

A procedural agreement may not be concluded with persons who committed an act prohibited by criminal law while legally insane or who developed a mental disorder after committing the crime.

The conclusion of a procedural agreement does not constitute grounds for releasing a person from civil liability towards persons recognised as victims and the civil claimant (Article 612 of the CPC).

A suspect, accused, defendant or prosecutor has the right to submit a motion for the conclusion of a procedural agreement in the form of a plea bargain at any time during the pre-trial or judicial proceedings in a criminal case, but before the court retires to the deliberation room to deliver its judgment (Article 622 of the CPC).

The rules contained in Subparagraph 16-1 of Paragraph 9 of Article 64 of the CPC are organically connected with the provisions stipulating that criminal cases involving criminal misdemeanours and crimes of minor gravity are subject to consideration under summary proceedings if the suspect has submitted a motion and the victim, as well as the civil claimant and civil defendant (where they participate in the case), have consented to the consideration of the case under summary proceedings without examination of the evidence, without summoning them and without their participation in the court hearing (Subparagraph 4 of Paragraph 2 of Article 629-1 of the CPC).

The freedom to appeal against actions and decisions of bodies conducting criminal proceedings is a principle of criminal procedure and one of the methods for correcting investigative and judicial errors in a criminal case (Article 31 of the CPC).

Therefore, during the pre-trial investigation, any actions and decisions of bodies conducting criminal proceedings may be appealed in various procedural forms, including through judicial review of actions and decisions of a prosecutor or an investigating judge (Subparagraph 18 of Paragraph 9 of Article 64, Articles 100–107 of the CPC).

The rule contained in Subparagraph 19 of Paragraph 9 of Article 64 of the CPC has, in general, been characterised in the course of analysing the other rights of the suspect, while its specific application takes place in virtually every procedural or investigative action involving the suspect.

Articles 274 and 286 of the CPC, respectively, establish the rights of the suspect during the pre-trial investigation when an expert examination is appointed and conducted, as well as following the mandatory familiarisation of the suspect with the expert’s report, the protocol of the expert’s questioning and the notification stating that it is impossible to provide such a report (Subparagraph 20 of Paragraph 9 of Article 64 of the CPC).

The rules contained in Subparagraph 21 of Paragraph 9 of Article 64 of the CPC reflect the rights of the suspect during the familiarisation of the suspect and their defence counsel with all the case materials, as well as during the consideration and resolution of motions submitted upon completion of familiarisation with the case materials (Articles 296–297 of the CPC).

The rule contained in Subparagraph 22 of Paragraph 9 of Article 64 of the CPC concerns one of the fundamental rights of the suspect, which they are entitled to exercise before the termination of a criminal case on non-exonerating grounds. By expressing disagreement with such grounds, the suspect may thereby continue the criminal proceedings until their final conclusion (Part 4 of Article 35, Parts 1 and 5 of Article 36 of the CPC).

The rules contained in Subparagraph 23 of Paragraph 9 of Article 64 of the CPC constitute an objective legal provision obliging bodies conducting criminal proceedings, in all cases and subject to the exceptions provided for by law, to notify the suspect of procedural decisions affecting their legal status.

Otherwise, actions performed within the framework of such decisions, as well as the decisions themselves, may be reversed or declared legally invalid both during the pre-trial investigation and at the judicial stages on the grounds of a substantial violation of criminal procedural law.

The rules contained in Subparagraph 24 of Paragraph 9 of Article 64 of the CPC should be regarded as a particular instance of the application of the rules contained in Subparagraph 14 of Paragraph 9 of Article 64 of the CPC and of the collection of evidence through the granting of the suspect’s motions (Part 2 of Article 122 of the CPC). Furthermore, these rules are consistent with the requirements of the CPC concerning additional questioning (Article 211), the questioning of certain persons as witnesses (Article 214), and confrontations between participants in the pre-trial investigation who have previously been questioned (Article 218).

The rule contained in Part 10 of Article 64 of the CPC, in a concentrated form, prohibits any arbitrary interpretation, weakening or diminution of the rights of a suspect listed in Paragraph 9 of Article 64 of the CPC solely on the grounds that the suspect is accompanied in the proceedings by defence counsel or legal representatives.

Even they are prohibited by law from taking actions contrary to the interests of the person they represent (Part 5 of Article 70, Article 537 of the CPC).

In the context of the foregoing, the legislator’s remark is important that testimony given by a suspect during their preliminary questioning as a witness may not be recognised as evidence or form the basis of an accusation (Part 3 of Article 112 of the CPC).

It follows from this that if there are no grounds specified in Part 1 of Article 64 of the CPC for recognising a particular person as a suspect, that person may under no circumstances be questioned as a suspect.

An ordinary witness, provided that they are not a witness entitled to the right to defence (Parts 5–6 of Article 78 of the CPC), must be questioned as a witness, without being asked incriminating or accusatory questions.

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan, authored by Marat Chekishuly Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, and Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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