Commentary on Article 69. Waiver of the Right to Defence Counsel of the Criminal Procedure Code of the Republic of Kazakhstan
1. A suspect, accused person or defendant shall have the right to waive defence counsel at any time during the proceedings in the case. Such a waiver shall be permitted only at the initiative of the suspect, accused person or defendant and in the presence of defence counsel participating in the criminal proceedings or defence counsel appointed in accordance with the procedure established by Part Three of Article 67 of this Code. A waiver of defence counsel on the grounds of a lack of funds to pay for legal assistance shall not be accepted. The waiver shall be formalised in writing or recorded in the minutes of the relevant investigative or judicial action.
2. In the cases provided for in subparagraphs 2), 3), 4) and 5) (where a person is suspected of committing a crime for which the death penalty or life imprisonment may be imposed as a punishment), and subparagraph 6) (where a suspect is compulsorily referred for an inpatient forensic psychiatric examination) of Part One of Article 67 of this Code, the refusal of a suspect or accused person to have defence counsel may not be accepted by the body conducting the criminal proceedings.
3. Waiver of defence counsel shall not deprive a person of the right to subsequently file a motion for the admission of defence counsel to participate in the criminal proceedings. The entry of defence counsel into the proceedings shall not entail the repetition of actions that have already been performed by that time during the investigation or trial.
The CPC attaches great importance to the legality and validity of a waiver of defence counsel, providing for the regulation of these matters in a separate article. This is no coincidence, since any improper formalisation of this action may result in the unconditional reversal of a judgment of the court of first instance by higher courts (Part 3 of Article 436 of the CPC). The same is confirmed by the provisions of Article 69 of the CPC, entitled “Waiver of Defence Counsel”.
The participation of defence counsel on the grounds specified in subparagraphs 2–6 of Part 1 of Article 67 of the CPC is always mandatory, regardless of whether the suspect, accused person or defendant wishes it or not. This is обусловлено by the age-related, physical and mental characteristics of the subject of the criminal offence, their lack of knowledge of the language of the proceedings, the nature of the crime and the punishment imposed for its commission (subparagraphs 2–5 of Part 1 of Article 67 of the CPC), as well as the psychological characteristics of the individual, the depth of which can only be established as a result of ordering and conducting a compulsory inpatient forensic psychiatric examination (subparagraph 6 of Part 1 of Article 67 of the CPC).
The law makes the mandatory participation of defence counsel on the grounds provided for in subparagraphs 1 and 7–11 of Part 1 of Article 67 of the CPC dependent on the wishes (motion) of the suspect, accused person or defendant. On these grounds, the subject of the criminal offence is permitted to waive defence counsel; however, such waiver must be definite and clearly expressed, and must also be recorded in the form of a written statement by the person being defended or in the minutes of the relevant investigative action or court hearing.
The law specifically stipulates that a waiver of defence counsel is permitted exclusively at the initiative of the subject of the criminal offence, in the presence of defence counsel participating in the case or defence counsel appointed as such, and that such a waiver is not permitted in the absence of the defence counsel themselves (Part 3 of Article 67, Part 1 of Article 69 of the CPC).
The body conducting the criminal proceedings must explain to the suspect, accused person or defendant their right to have defence counsel appointed regardless of whether they have the financial means to pay for such services. A waiver of defence counsel may take place at any stage of the proceedings and must not be associated with a lack of funds to pay for legal assistance. Where funds to pay for an advocate's services are actually unavailable, the waiver of defence counsel must be recognised as involuntary and must not be accepted. Pursuant to Part 6 of Article 99 of the CPC, the decision on a motion to waive defence counsel shall be formalised by a reasoned ruling, which shall immediately be brought to the attention of the defence counsel, suspect, accused person or defendant, who shall certify this by their signatures. The participation of defence counsel shall be confirmed by attaching to the materials of the criminal case the advocate's warrant or a copy of the relevant document of another person admitted as defence counsel (paragraph 14 of Regulatory Resolution No. 26 of the Supreme Court of the Republic of Kazakhstan dated 6 December 2002, “On the Practice of Applying Criminal Procedure Legislation Regulating the Right to Defence”).
In general, the decision on whether to accept a waiver of defence counsel falls within the competence of the body conducting the criminal proceedings (paragraph 14 of Regulatory Resolution No. 26 of the Supreme Court of the Republic of Kazakhstan dated 6 December 2002, “On the Practice of Applying Criminal Procedure Legislation Regulating the Right to Defence”). For example, a waiver of defence counsel may also be rejected due to certain circumstances of the case (a large volume of charges, a significant number of persons being held criminally liable, the presence in the case file of materials whose examination presents certain difficulties for the suspect, accused person or defendant, etc.).
The removal of defence counsel from participation in the proceedings on the grounds specified in Part 1 of Article 94 of the CPC shall not release the body conducting the criminal proceedings from its obligation to provide the suspect, accused person, defendant, convicted person or acquitted person with another defence counsel. Where defence counsel is removed from participation in the case, the body conducting the criminal proceedings shall issue a ruling, which may be appealed during pre-trial proceedings in accordance with the procedure established by Article 106 of the CPC, and during trial proceedings in accordance with the rules set out in Article 422 of the CPC (paragraph 15 of Regulatory Resolution No. 26 of the Supreme Court of the Republic of Kazakhstan dated 6 December 2002, “On the Practice of Applying Criminal Procedure Legislation Regulating the Right to Defence”).
Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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