Commentary on Article 67. Mandatory Participation of Defence Counsel of the Criminal Procedure Code of the Republic of Kazakhstan
1. The participation of defence counsel in criminal proceedings shall be mandatory in the following cases:
1) where a request to that effect is made by the suspect, accused, defendant, convicted person or acquitted person;
2) where the suspect, accused, defendant, convicted person or acquitted person has not attained the age of majority;
3) where the suspect, accused, defendant, convicted person or acquitted person is unable to independently exercise their right to defence due to physical or mental disabilities;
4) where the suspect, accused, defendant, convicted person or acquitted person does not speak the language in which the proceedings are conducted;
5) where a person is suspected or accused of committing a crime for which a penalty of imprisonment for a term exceeding ten years, life imprisonment or the death penalty may be imposed;
6) where detention has been applied to the suspect, accused, defendant or convicted person as a preventive measure, or where they have been forcibly placed in an inpatient facility for a forensic psychiatric examination;
7) where there are conflicts of interest between suspects, accused persons, defendants, convicted persons or acquitted persons, one of whom has defence counsel;
8) where a representative of the victim (private prosecutor) or civil claimant participates in the criminal proceedings;
9) where a prosecutor supporting the public prosecution (public prosecutor) participates in the consideration of the case by the court;
10) where the suspect, accused, defendant, convicted person or acquitted person is outside the territory of the Republic of Kazakhstan and evades appearing before the criminal prosecution authorities or the court;
11) where a motion for a procedural agreement and its conclusion has been filed.
2. In the cases provided for in paragraphs 1)—6) and 10) of part one of this Article, the participation of defence counsel shall be ensured from the moment the person is recognised as a suspect, accused, defendant, convicted person or acquitted person; under paragraph 7) — from the moment a conflict of interest between suspects, accused persons, defendants, convicted persons or acquitted persons is identified; under paragraphs 8) and 9) — from the moment the victim's representative or prosecutor participates in the case; and under paragraph 11) — from the moment the suspect, accused, defendant or convicted person files a motion for the conclusion of a procedural agreement.
3. Where the circumstances provided for in part one of this Article exist, and defence counsel has not been invited by the suspect, accused, defendant, convicted person or acquitted person themselves, their legal representatives, or other persons acting on their instructions, the body conducting the criminal proceedings shall be obliged to ensure the participation of defence counsel at the relevant stage of the proceedings. To this end, it shall issue a resolution binding upon the professional organisation of advocates.
The title of the Article itself makes it clear that it establishes a group of rules providing for the mandatory participation of defence counsel in the cases specified therein. In other words, these are grounds that alert the body conducting the criminal proceedings to the need to comply with the statutory requirement concerning the mandatory participation of defence counsel in the case, taking into account the opinion of the person receiving legal defence. After a person has been informed of their rights in the relevant procedural status, including the right to invite defence counsel, that person is entitled to invite defence counsel personally or through other persons; where this is impossible, to request the body conducting the criminal proceedings to do so; or to waive the participation of defence counsel in the case entirely, even where the law expressly requires such participation.
A waiver of the services of defence counsel may also occur after defence counsel has been introduced into the proceedings.
However, the law does not permit a waiver of defence counsel to be accepted on the grounds of a lack of funds to pay for legal assistance, or in the cases provided for in paragraphs 2—6 of part 1 of Article 67 of the CPC. The substance of these grounds is determined by the need to comply with the constitutional provision guaranteeing everyone's right to receive qualified legal assistance, including free of charge (paragraph 3 of Article 13 of the Constitution, Article 14 of the Law “On Advocacy and Legal Assistance”), the category of the crime committed, its punishability, as well as the age, mental and other characteristics of the person receiving legal defence. In this regard, a waiver of defence counsel by a suspect or accused person in the cases provided for in parts 1—2 of Article 69 of the CPC may not be accepted by the body conducting the criminal proceedings.
The provisions of part 1 of Article 67 of the CPC regulate 11 mandatory grounds for the participation of defence counsel in a case, that is, grounds that must be complied with whenever they arise, without reference to a shortage of advocates or other defence counsel capable of providing legal assistance. Let us examine them.
The rule set out in paragraph 1 of part 1 of Article 67 of the CPC begins to apply from the moment a person appears in the case in the status of a suspect, accused, defendant, convicted person, acquitted person or witness entitled to the right to defence. In this regard, I recommend referring to the commentary on paragraphs 1—4 of part 1 of Article 65 of the CPC.
The right to have a lawyer, among other rights, is one of the fundamental procedural guarantees of the rights of a minor at all stages of judicial proceedings, — as stated in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules, adopted by UN General Assembly Resolution 40/33 of 29 November 1985, Section 7, paragraph 7.1) and subparagraph “iii” of paragraph 2 of Article 40 of the Convention on the Rights of the Child, adopted by UN General Assembly Resolution 44/25 of 20 November 1989 and ratified by Resolution of the Supreme Council of the Republic of Kazakhstan of 8 June 1994. Therefore, the rule set out in paragraph 2 of part 1 of Article 67 of the CPC takes into account the age-related and associated emotional, spiritual and intellectual characteristics of a minor subject of a criminal offence or an acquitted person, that is, a person who has not attained the age of eighteen (see the commentary on paragraph 2 of part 1 of Article 35 of the CPC).
The rule set out in paragraph 3 of part 1 of Article 67 of the CPC refers to physical and mental disabilities of a person, which are confirmed by various sources: case materials, medical indications, an expert opinion, and information provided by the legal representative of a minor, and which require the mandatory participation of defence counsel. In this regard, the Supreme Court, in its Regulatory Resolution of 6 December 2002 “On the Practice of Applying Criminal Procedure Legislation Governing the Right to Defence”, provided the following clarification: “Since the law does not specify a list of physical and mental disabilities serving as grounds for the mandatory participation of defence counsel, in each particular case it is necessary to determine whether a witness entitled to the right to defence, suspect, accused, defendant, convicted person or acquitted person has a genuine ability, in view of their disabilities, to fully exercise the right to defence independently, or whether the degree of their disabilities is such that it significantly impedes the exercise of the rights granted to them by law. Persons who, due to physical or mental disabilities, are unable to exercise their right to defence independently shall also include persons suffering from mental disorders that do not exclude criminal responsibility, as well as those having a significant speech, visual or hearing impairment or another serious illness. Where doubts arise as to a person's ability to independently defend their rights and legitimate interests due to physical or mental disabilities, the appointment and conduct of an examination shall be mandatory in accordance with paragraph 4 of part 1 of Article 271 of the CPC” (paragraph 10).
Depending on their prevalence in forensic psychiatric practice (in descending order), certain authors identify the following mental abnormalities that do not exclude criminal responsibility: a) alcoholism; b) drug addiction; c) substance abuse; d) all types of borderline conditions; e) residual effects of traumatic brain injuries; f) mental disorders arising in the remote period of a brain disease (organic dementia); g) oligophrenia at the stage of debility; h) epilepsy; i) vascular diseases; j) schizophrenia in its initial stage or during remission, schizotypal disorders (sluggish schizophrenia); k) manic-depressive psychosis in the form of cyclothymia; l) certain mental disorders resulting from syphilitic damage to the brain; m) progressive paralysis at its initial stage or during therapeutic remission (See: Sirozhidinov D.V. Limited Criminal Responsibility: Dissertation for the Degree of Candidate of Legal Sciences: 12.00.08 / Sirozhidinov D.V. — Yekaterinburg, 1998. 199 pages).
The rule set out in paragraph 4 of part 1 of Article 67 of the CPC reflects compliance with the requirements of the principle governing the language of judicial proceedings. A failure to speak that language significantly weakens the position of the person receiving legal defence in a criminal case and therefore constitutes an independent ground for the mandatory participation of defence counsel in the criminal case (see the commentary on Article 30 of the CPC).
The rule set out in paragraph 5 of part 1 of Article 67 of the CPC is обусловлено the category of the crime (serious or particularly serious) and the penalty that may be imposed for its commission (imprisonment for a term exceeding ten years, life imprisonment or the death penalty).
The rule set out in paragraph 6 of part 1 of Article 67 of the CPC is обусловлено the nature of the preventive measure selected or the type of examination, which in practice restrict the person's liberty and substantially affect their rights.
The rule set out in paragraph 7 of part 1 of Article 67 of the CPC concerns accomplices in a criminal offence or acquitted persons, between whose interests disagreements may arise on a wide range of issues during the investigation, trial proceedings, serving of a sentence or following the delivery of an acquittal (concerning the legal classification of the act, the form of complicity, the selection of a preventive measure, the type and amount of punishment, the grounds for acquittal, the nature and amount of damage subject to compensation, etc.).
The rule set out in paragraph 8 of part 1 of Article 67 of the CPC covers cases in which the interests of the prosecution side (the victim, private prosecutor or civil claimant) in criminal cases are represented by advocates and other persons authorised by law to represent their interests in criminal proceedings (Article 76 of the CPC). Qualified legal assistance, within the meaning of the provisions of paragraph 3 of Article 13 of the Constitution, is legal assistance guaranteed by the State not only to a person who has committed a criminal offence, an acquitted person or a witness entitled to the right to defence, but also to the party that has suffered as a result of a criminal offence.
The rule set out in paragraph 9 of part 1 of Article 67 of the CPC, even in its wording, indicates the need for defence counsel to participate in the case due to the participation of a professional lawyer in the person of the prosecutor — the public prosecutor, who is legally entrusted with the duty to prove the elements of the criminal offence and the person's guilt in committing it (Article 19 and part 2 of Article 121 of the CPC). In this case, the law seeks to balance the positions of the prosecution and defence. This is particularly evident in the activities of the prosecutor and defence counsel in proving the circumstances to be established in a criminal case during the judicial investigation and the parties' closing arguments in the main court hearing.
The rule set out in paragraph 10 of part 1 of Article 67 of the CPC arises from the need to ensure full protection of the rights of the person receiving legal defence at all stages of criminal proceedings where that person is absent without valid reasons from the place of investigation, trial proceedings or serving of a sentence. In this regard, the law regulates the procedure for the participation of defence counsel in a case in the absence of the subject of the criminal offence (part 8 of Article 206, parts 2—3 of Article 304, Article 335, etc.).
The rules set out in paragraph 11 of part 1 of Article 67 of the CPC concern the rights of the subject of a criminal offence in the context of compliance with the principle of the presumption of innocence (Article 19 of the CPC) and the principle of ensuring the suspect's and accused person's right to defence (Article 26 of the CPC). The introduction of this ground for the mandatory participation of defence counsel is обусловлено the legislator's intention to ensure the legality and validity of the procedural form for concluding a plea agreement or a cooperation agreement (Articles 612—613 and 618—619 of the CPC), and to exclude any unlawful or questionable actions and decisions by the bodies conducting criminal proceedings in the settlement procedures initiated either by the subject of the criminal offence or by the prosecutor.
- Alongside the grounds for the mandatory participation of defence counsel, the law requires strict compliance with the rules governing their admission to the case, as specified in part 2 of Article 67 of the CPC. These are certain legal facts based primarily on the materials of the criminal case.
Thus, the fact that a person is recognised as a suspect, accused, defendant, convicted person or acquitted person is regulated by parts 1—4 of Article 65 of the CPC and serves as a signal for the introduction of defence counsel into the case in the prescribed manner (paragraphs 1—6 and 10 of part 1 of Article 67 of the CPC).
Conflicts between the interests of the subjects of a criminal offence and acquitted persons involved in the case, as grounds for introducing defence counsel into the case (paragraph 7 of part 1 of Article 67 of the CPC), may be identified during investigative and judicial actions. An indication of the existence of a conflict between them is the appearance of defence counsel for one of them.
The body conducting the criminal proceedings shall notify the participants in the proceedings of the appearance of a representative of the victim in the case (paragraph 8 of part 1 of Article 67 of the CPC). The participation of a prosecutor in the main court hearing is mandatory in all cases involving private-public and public prosecution and accusation (paragraph 9 of part 1 of Article 67 of the CPC). These circumstances in themselves make it necessary to introduce defence counsel into the proceedings on the initiative of, or with the consent of, the person receiving legal defence, but at the initiative of the body conducting the criminal proceedings (Articles 23 and 337 of the CPC).
A motion to conclude a procedural agreement in the form of a plea agreement or a cooperation agreement, initiated by the subject of a criminal offence in any of its forms, may be concluded by that person from the commencement of the pre-trial investigation until the court retires to the deliberation room to deliver its judgment. A convicted person may also file a motion to conclude a procedural agreement in the form of a cooperation agreement during the period of serving their sentence. Therefore, filing such a motion constitutes a substantial ground for the appearance and participation of defence counsel in this procedure in order to ensure its legality and validity (paragraph 11 of part 1 of Article 67 of the CPC).
Within the meaning of part 3 of Article 67 of the CPC, in cases where the participation of defence counsel in the case is mandatory, defence counsel may be invited: by the defence party; by the body conducting the criminal proceedings, if the defence party is unable to do so independently and requests assistance from the criminal prosecution body; or appointed on the initiative of the body conducting the criminal proceedings where, despite the explanation of this right, the persons concerned have not invited defence counsel, or a waiver has been declared, and the matter concerns certain cases in which the participation of defence counsel is mandatory, as noted above (see the commentary on paragraph 1 of this Article).
A violation of the procedure for admitting defence counsel to participate in the case or of the procedure governing their participation in the case (for example, where defence counsel is introduced later than required, or, through the fault of the pre-trial investigation body, does not participate in procedural actions conducted at their request or with the participation of their client, etc.) entails the recognition of investigative actions and decisions of the investigator related to the collection of evidence as invalid and having no legal force. Furthermore, factual data obtained in violation of the procedure requiring the mandatory participation of defence counsel may be used as evidence of the relevant violations and of the guilt of the persons who committed them (parts 4—5 of Article 112 of the CPC).
The legislator's strongly negative attitude towards failures to ensure the right to defence against suspicion and accusation is demonstrated, for example, by the statutory provision that a judgment must be set aside by the appellate court in any event where the case was considered without the participation of defence counsel when such participation is mandatory by law, or where the defendant's right to defence was otherwise violated (part 3 of Article 436 of the CPC).
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, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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