Commentary on Article 7 of the Criminal Procedure Code of the Republic of Kazakhstan. Interpretation of Certain Concepts Contained in This Code

Unless otherwise specifically provided by law, the concepts contained in this Code shall have the following meanings:

1) surrender of a person (extradition) — the surrender to a State of a person who is being sought for the purpose of bringing that person to criminal liability or enforcing a sentence;

2) prosecution — the criminal prosecution authorities, as well as the victim (private prosecutor),

3) civil claimant, their legal representatives and representatives;

4) juror — a citizen of the Republic of Kazakhstan summoned, in accordance with the procedure established by this Code, to participate in the judicial consideration of a criminal case and who has taken an oath;

5) appellate instance — a court that considers a case on its merits on the basis of appellate complaints and prosecutors' appellate petitions against judgments and rulings of a court of first instance that have not entered into legal force;

6) special knowledge — knowledge that is not generally known in criminal proceedings, acquired by a person in the course of professional education or as a result of practical activities and used to resolve the tasks of criminal proceedings;

7) special scientific knowledge — a field of special knowledge, the content of which consists of scientific knowledge implemented in forensic examination methodologies;

8) applicant — a person who has reported a criminal offence or who has applied to a court or criminal prosecution authorities, in accordance with the procedure for criminal proceedings, to protect their actual or alleged rights or the rights of a person whom they represent;

9) main court hearing — consideration of a criminal case on its merits by a court of first instance;

10) court of first instance — district and equivalent courts (city courts, specialized interdistrict courts, military courts of garrisons) that consider criminal cases received after the completion of pre-trial investigation in accordance with their jurisdiction, or following the setting aside of a judicial act by a higher court, or on the basis of a complaint by a private prosecutor; specialized investigative courts and specialized interdistrict investigative courts, which consider complaints against decisions and actions (inaction) of persons conducting pre-trial investigations, operational investigative activities, and prosecutors supervising the legality of pre-trial investigations, authorize procedural actions in cases provided for by this Code, and exercise other powers provided for by this Code;

11) scientific and technical means — instruments, special devices and materials lawfully used to identify, record, seize and examine evidence;

12) close relatives — parents, children, adoptive parents (adoptive father or mother), adopted children, full and half brothers and sisters, grandfather, grandmother and grandchildren;

13) covert investigative action — an action conducted in the course of pre-trial proceedings, in accordance with the procedure and under the conditions provided for by this Code, without prior notification of the persons whose interests are affected;

14) legal representatives — the parents, adoptive parents, guardians and trustees of a suspect, accused person, victim or civil claimant, as well as representatives of organizations and persons under whose guardianship or care the suspect, accused person or victim is placed;

15) cassation instance — a panel of the Supreme Court of the Republic of Kazakhstan that considers cases on the basis of petitions, submissions and protests concerning judgments and rulings of courts of first and appellate instances;

16) electronic document — a document in which information is presented in electronic digital form and certified by an electronic digital signature;

17) ruling — any decision of a court other than a judgment, as well as a decision made by an inquirer, body of inquiry, investigator or prosecutor in the course of proceedings in a criminal case;

18) defence — procedural activities carried out by the defence party to ensure the rights and interests of persons suspected or accused of committing a criminal offence, to refute or mitigate the suspicion or accusation, and also to acquit persons who have been unlawfully subjected to criminal prosecution;

19) defence party — the suspect, accused person, defendant, convicted person, acquitted person, their legal representatives, defence counsel, civil defendant and their representative;

20) final decision — any decision of the body conducting criminal proceedings that precludes the commencement or continuation of proceedings in a case, or resolves the case on its merits, even if such decision is not final;

21) competent authority — a body conducting criminal proceedings that, in accordance with Section 12 of this Code, submits a request (commission, petition) or ensures the execution of a request (commission, petition) for the provision of legal assistance;

22) legal assistance — the performance of procedural actions by the competent authorities of one State, at the request (commission, petition) of the competent authorities of another State or international judicial institutions, which are necessary for pre-trial investigation, judicial consideration of a case or enforcement of a judicial act;

23) criminal prosecution (accusation) — procedural activities carried out by the prosecution party for the purpose of establishing an act prohibited by criminal law and the person who committed it, establishing the guilt of the latter in committing a criminal offence, and ensuring the application of punishment or other measures of criminal-law influence to such person;

24) criminal prosecution authorities (officials) — the prosecutor (public prosecutor), investigator, body of inquiry and inquirer;

25) other persons participating in criminal proceedings — the court hearing secretary, interpreter, witness, witness entitled to the right to defence, attesting witness, expert, specialist, court bailiff and mediator;

26) participants in criminal proceedings — bodies and persons carrying out criminal prosecution and supporting the accusation in court, as well as persons protecting their own rights and interests or the rights and interests of persons whom they represent during proceedings in a criminal case: the prosecutor (public prosecutor), investigator, body of inquiry, inquirer, suspect, accused person, their legal representatives, defence counsel, civil defendant, victim, private prosecutor, civil claimant, and their legal representatives and representatives;

27) body conducting criminal proceedings — a court, as well as, during pre-trial investigation, a prosecutor, investigator, body of inquiry or inquirer;

28) criminal case — separate proceedings conducted by a criminal prosecution authority and/or a court in connection with one or more criminal offences;

29) public prosecution — procedural activities carried out by a prosecutor in courts of first and appellate instances, consisting of proving the accusation for the purpose of bringing a person who has committed a criminal offence to criminal liability;

30) actual apprehension — restriction of the freedom of a detained person, including freedom of movement, compulsory detention in a particular place, forced delivery to bodies of inquiry and investigation (detention, confinement in premises, compelling a person to go to or remain in a particular place, and other similar actions), as well as any other actions that substantially restrict a person's personal liberty; such restriction shall be calculated with minute-level precision from the moment it actually begins and shall be determined irrespective of whether the detained person has been assigned any procedural status or whether any other formal procedures have been completed;

31) prosecutor's protest, petition — an act of prosecutorial supervision and a prosecutor's response measure, respectively, submitted in relation to a decision of a court or investigating judge in a criminal case, in accordance with the procedure provided for by this Code and within the scope of the prosecutor's authority;

32) central authority — a body authorized to consider, on behalf of the State, a request (commission, petition) from the competent authority of a foreign State or an international judicial institution in accordance with the procedure provided for by this Code and to take measures to organize its execution, or to send to a foreign State a request (commission, petition) from a competent authority for the provision of legal assistance;

33) representatives — persons authorized by law or agreement to represent the legitimate interests of a victim, civil claimant, private prosecutor or civil defendant;

34) petition — a request by a party or applicant to the body conducting criminal proceedings to perform a procedural action or adopt a procedural decision, and, at the cassation instance, a request for review of a judicial act that has entered into legal force under the cassation procedure;

35) head of a prosecution authority — the Prosecutor General of the Republic of Kazakhstan, prosecutors of regions and prosecutors equated to them and their deputies, as well as prosecutors of districts and cities and prosecutors equated to them and their deputies, and officials acting within the scope of their authority;

36) procedural prosecutor — a prosecutor assigned by the head of a prosecution authority, in accordance with this Code, to supervise the application of laws in a criminal case;

37) procedural actions — actions performed in accordance with this Code in the course of criminal proceedings;

38) procedural agreement — an agreement concluded between a prosecutor and a suspect, accused person or defendant at any stage of criminal proceedings, or with a convicted person, in accordance with the procedure and on the grounds provided for by this Code;

39) procedural decisions — acts issued by bodies conducting criminal proceedings in connection with the conduct of proceedings in a criminal case;

39-1) authorization — permission granted by a court to a criminal prosecution authority to perform a procedural action in the course of pre-trial proceedings;

40) court — a judicial authority that is legally established in the Republic of Kazakhstan and forms part of the judicial system, and that considers cases collectively or individually;

40-1) pre-trial proceedings — proceedings from the commencement of pre-trial investigation until the prosecutor sends the criminal case to court for consideration on its merits or until proceedings in the case are terminated, as well as the preparation of materials in a criminal case by a private prosecutor and the defence party;

41) judge — a holder of judicial power; a professional judge (chairperson of a court, chairperson of a judicial panel, judge of the relevant court) appointed or elected to this position in accordance with the procedure established by law;

42) requesting party — a State or international judicial institution whose competent authority submits a request (commission, petition);

43) requested party — a State to whose competent authority a request (commission, petition) is sent;

44) parties — bodies and persons that carry out the accusation (criminal prosecution) and the defence against the accusation in court proceedings on the basis of adversarial proceedings and equality of rights;

45) investigative jurisdiction — the set of criteria established by this Code according to which the investigation of a given criminal offence falls within the competence of a particular criminal prosecution authority;

46) investigating judge — a judge of a court of first instance who exercises the powers provided for by this Code in the course of pre-trial proceedings;

47) presiding judge — a judge who presides over the collective consideration of a criminal case or considers the case individually;

48) dwelling — premises or a structure intended for the temporary or permanent residence of one or more persons, including: an owned or rented apartment, house, summer house, hotel room, cabin, compartment; verandas, terraces, galleries, balconies, attic structures, basements and attics directly adjoining them, except in the case of an apartment building, as well as a river or sea vessel and other similar places;

49) relatives — persons related by kinship who share common ancestors up to and including their great-grandfather and great-grandmother;

50) nighttime — the period of time from twenty-two hundred to six hundred hours local time;

51) judgment — a decision of a court of first or appellate instance concerning the guilt or innocence of an accused person and the imposition or non-imposition of punishment on that person;

Repealed by Law No. 248-V of the Republic of Kazakhstan dated 7 November 2014 (entered into force on 1 January 2015);

51) record — a procedural document drawn up by the body conducting criminal proceedings, in which a procedural action is recorded;

52) complaint — an act of response by participants in proceedings to actions (inaction) and decisions of bodies of inquiry, preliminary investigation authorities, prosecutors or courts, as well as a person's demand to carry out criminal prosecution under the private or private-public prosecution procedure;

53) search measures (activities) — actions taken by a body of inquiry, on the instructions of the body conducting criminal proceedings, aimed at establishing the whereabouts of persons who have concealed themselves from the body conducting criminal proceedings and/or are evading criminal liability, missing persons, objects and documents relevant to the case, as well as identifying persons who have committed criminal offences;

54) proceedings in a case — the totality of procedural actions and decisions carried out in a particular criminal case during its pre-trial and judicial consideration;

55) extradition arrest — a measure ensuring the execution of a decision of the competent authority of a foreign State on the detention of a person in custody, applied by a court to a person being sought for the purpose of their surrender (extradition) to a foreign State.

In accordance with paragraph 7 of Article 23 of the Law of the Republic of Kazakhstan “On Legal Acts”, where it is necessary to clarify the terms and definitions used in a regulatory legal act, an article explaining their meaning shall be included therein. In a regulatory legal act in the state language, terms and definitions shall be arranged in an orderly manner, and in the Criminal Procedure Code (CPC), the interpretation of certain concepts contained therein is provided for in Article 7. This article contains 58 concepts (terms, phrases, words and word combinations) relating to a wide range of criminal procedural matters, knowledge of which ensures effective work with the specific provisions, rules and institutions of the CPC. When performing procedural actions or adopting procedural decisions, the body conducting criminal proceedings is obliged to use and refer to these concepts, since Article 7 of the CPC is a general provision in relation to the provisions of its Special Part. I consider my task to be the clarification of the meaning of the concepts used in Article 7 of the CPC on the basis of the requirements of the current criminal procedural legislation (law).

Surrender of a person or extradition (subparagraph 1) of Article 7 of the CPC) is an independent institution of the criminal procedural law of the Republic of Kazakhstan, the rules of which may apply both to a person who has committed a crime in the territory of Kazakhstan and subsequently left the country, and to a person who has committed a crime in the territory of a foreign State and is present in Kazakhstan. Given the relevance of this institution in the fight against crime, Chapter 60 of the CPC, entitled “Surrender of Persons (Extradition)”, is devoted to it. In order to apply its provisions in criminal proceedings, the provisions of the CPC alone are insufficient. An international treaty must be concluded between the Republic of Kazakhstan and the foreign State on this matter, or the matter under consideration must form part of a general treaty on legal assistance in criminal cases and the surrender of persons (see also the commentary to subparagraph 58) of Article 7 of the CPC). It follows from this that, regardless of the conditions for applying the institution of surrender of a person (extradition), the surrender (extradition) of any person may be carried out only in the absence of circumstances provided for by an international treaty of the Republic of Kazakhstan that may prevent the surrender (extradition) of that person. The coordinating authority for the process of surrendering a person (extradition) is the Prosecutor General's Office of the Republic of Kazakhstan, which, under the CPC, is entrusted with the functions of exercising supervision in this area and ensuring the interaction of other competent state authorities of the Republic of Kazakhstan with other States on matters concerning the surrender of relevant persons (Articles 579, 580 and 590 of the CPC).

The prosecution (subparagraph 2) of Article 7 of the CPC) is one of the parties to criminal proceedings. It is represented by the bodies of inquiry, preliminary investigation authorities and the prosecutor, which perform the tasks of criminal proceedings, as well as by other participants in criminal proceedings who protect their own rights and interests or the rights and interests of persons whom they represent.

Inquiry is one of the forms of pre-trial investigation in a criminal case and is carried out in the following forms: inquiry in cases in which preliminary investigation is mandatory (Article 196 of the CPC); inquiry in cases in which preliminary investigation is not mandatory, whereby the inquiry materials, formalized by the drawing up of an indictment, serve as the basis for consideration of the case in court (Article 191 of the CPC); expedited pre-trial investigation carried out by bodies of inquiry in cases falling within their investigative jurisdiction (Article 190 of the CPC); pre-trial investigation in the form of a protocol in cases involving criminal misdemeanours (Articles 525–528 of the CPC); as well as proceedings under the order-based procedure in cases involving criminal misdemeanours and minor offences (Articles 629-1–629-8 of the CPC). In addition to their criminal procedural powers, bodies of inquiry are entrusted with conducting search activities exclusively in the course of pre-trial criminal proceedings for the purpose of identifying signs of criminal offences and the persons who committed them, preventing criminal offences and suppressing them (paragraph 1 of Article 61, Articles 231–251 of the CPC). The main range of bodies of inquiry is specified in paragraphs 2 and 3 of Article 61 of the CPC. In addition, where, due to objective reasons, it is impossible to postpone pre-trial proceedings and investigative actions, the rights and obligations of a body of inquiry to conduct such actions, irrespective of investigative jurisdiction, are vested in the captains of sea vessels on long-distance voyages, the heads of geological exploration expeditions, and the heads of other state organizations and their subdivisions located far from bodies of inquiry, during periods when there is no transport connection.

Preliminary investigation is the principal and leading form of pre-trial investigation in criminal cases, which is conducted before trial in the overwhelming majority of criminal cases. As a rule, serious and especially serious criminal offences are investigated by way of preliminary investigation (Article 11 of the Criminal Code, Article 187 of the CPC). Preliminary investigation may also be completed under the expedited procedure (Article 190 of the CPC) or under the order-based procedure in cases involving minor offences (Articles 629-2–629-3 of the CPC). Preliminary investigations in criminal cases are conducted by investigators of the national security authorities, investigators of the internal affairs authorities, investigators of the anti-corruption service and investigators of the economic investigation service (Articles 60 and 187 of the CPC). Where grounds exist, bodies of inquiry also conduct preliminary investigations in cases falling within their investigative jurisdiction (subparagraph 6) of paragraph 1 of Article 61, paragraphs 3 and 5 of Article 189 of the CPC). In cases provided for by the CPC, preliminary investigation may be carried out by a prosecutor (paragraph 1 of Article 60, subparagraph 12) of paragraph 1 of Article 193, paragraph 3 of Article 194 and paragraph 5 of Article 195 of the CPC). On the instructions of a prosecutor, investigators are entitled to investigate, by way of preliminary investigation, criminal cases falling within the investigative jurisdiction of bodies of inquiry (subparagraph 12) of paragraph 1 and subparagraph 3) of paragraph 2 of Article 193 of the CPC).

It is precisely the prosecution party that the law imposes the obligation to prove a person's guilt in committing a criminal offence and to refute the arguments put forward by that person in their defence. In court, a public prosecutor and a private prosecutor may carry out criminal prosecution against a particular person or, in cases provided for by law, refuse to pursue the criminal prosecution (Article 23 of the CPC). A private prosecutor is a person who has filed a complaint with the court in a private prosecution case and supports the accusation in court, as well as a victim in public and private-public prosecution cases who independently supports the accusation in court where the public prosecutor has refused to pursue the accusation (Articles 32, 71, 72 and 337 of the CPC). Representatives of a victim (private prosecutor) and civil claimant may be advocates, as well as other persons providing legal assistance who are entitled, on a legal basis, to represent the legitimate interests of the aforementioned persons during proceedings in a criminal case and who have been admitted to participate in the case by a decision of the body conducting criminal proceedings (Article 76 of the CPC).

• Since January 2007, pursuant to paragraph 2 of Article 75 of the Constitution, the Law of 16 January 2006 “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the Introduction of Criminal Proceedings with the Participation of Jurors”, and the Law of 16 January 2006 “On Jurors”, courts with the participation of jurors began operating in the territory of Kazakhstan (subparagraph 3 of Article 7 of the CPC).
• Section 14 of the CPC regulates the procedural form of criminal proceedings conducted with the participation of jurors (Articles 630–666).
• The Law “On Jurors” regulates public relations associated with the participation of jurors in criminal proceedings and determines the legal status, guarantees of independence, and the legal, economic and organizational foundations for ensuring the activities of jurors. In accordance with this Law, a juror is, first and foremost, a citizen of the Republic of Kazakhstan. The required number of candidates for jurors shall be summoned to court to participate in the consideration of a case by the secretary of the court session, in accordance with an instruction issued by the judge (the presiding judge in the case) of the court hearing the criminal case with the participation of jurors. Citizens shall be called upon to perform the duties of jurors in court no more than once during a calendar year, for the entire period of consideration of the criminal case. Persons summoned to court but not selected for the jury panel may be engaged to participate as jurors in another court hearing (Article 15 of the aforementioned Law). A person selected in accordance with the procedure established by the CPC to participate in criminal proceedings as a juror shall take the following oath: “Upon commencing the performance of my duties as a juror, I solemnly swear to perform my duties honestly and impartially, to take into consideration all evidence, arguments and circumstances of the case examined in court, and to decide the case according to my inner conviction and conscience, as befits a free citizen and a just person.” The juror confirms the taking of the oath by pronouncing the phrase “I swear” (Article 14 of the aforementioned Law).
• It should be noted that Chapter 28 of the Civil Procedure Code of the Republic of Kazakhstan (dated 31 October 2015) regulates the procedure for considering citizens’ applications challenging decisions, actions (inaction) of local executive bodies that violate citizens’ rights to participate in the selection procedure for performing the functions of jurors in criminal proceedings (Articles 289–291 of the CPC).
• According to the CPC, the appellate instance (subparagraph 4 of Article 7 of the CPC) is an independent judicial instance that operates exclusively within the composition of a regional or equivalent court, as well as the Military Court (Articles 310–311). In a regional or equivalent court, it is represented by the Criminal Cases Judicial Chamber of Appeal, which considers cases based on appellate (private) complaints and protests against judgments and rulings of district and equivalent courts, specialized interdistrict criminal courts, and specialized interdistrict juvenile courts that have not entered into legal force (Article 11 of the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan”, Part 1 of Article 416 of the CPC). Appellate (private) complaints and protests against judgments and rulings of garrison military courts and specialized interdistrict military criminal courts that have not entered into legal force shall be considered by the Military Court (Part 2 of Article 416 of the CPC). Criminal cases are considered on appeal by a single judge, whereas complaints and protests against judgments and rulings of courts in cases involving particularly serious crimes, as well as cases considered with the participation of jurors, are considered collegially by a panel consisting of the presiding judge and at least two judges of the chamber. If the Chairperson of the Appellate Chamber is absent due to a business trip, leave or illness, the judge of the chamber upon whom the chairperson of the court has imposed the duties of the Chairperson of the Appellate Chamber shall preside over the collegial consideration of the aforementioned cases (Part 2 of Article 52 of the CPC). From the perspective of the subject matter of appellate review, the appellate court essentially conducts a new judicial hearing based on the materials already contained in the case file, as well as additional materials submitted and examined during the appellate court hearing; it verifies the correctness of the establishment of the factual circumstances of the case and the application of criminal law, compliance with the rules of criminal procedure law during the proceedings, and the fairness, legality and validity of the judgment or ruling of the court of first instance within the relevant limits (Article 424 of the CPC). This review concludes with the issuance of an appellate judgment or ruling (Articles 431, 443–445 of the CPC). This is, in a sense, a “court on the case” (this expression was first used in the fundamental work by Doctor of Law and Professor M. A. Cheltsov-Bebutov, “Course of Criminal Procedure Law” (Moscow, 1957), with reference to the work by Hélie E., “Traité de l'instruction criminelle: ou Théorie du Code d'instruction criminelle”, 2nd ed., Paris, 1867 (the Course was republished in St. Petersburg, Ravena, Alfa, 1995, p. 509). I would supplement this expression with the words “and above the court”, in view of the powers vested in this judicial instance.
• Specialists possessing a body of specialized knowledge (subparagraph 5 of Article 7 of the CPC), acquired through specialized education or in the course of practical work in a particular field of specialization, play an important role in accomplishing the objectives of criminal proceedings. Cases in which the participation of a specialist in investigative and judicial actions is mandatory are expressly provided for by the CPC. Within the framework of an investigative or judicial action, a specialist is entitled to conduct an examination of case materials that does not result in the complete or partial destruction of objects or changes to their external appearance or principal properties, with the exception of comparative examination, and to record the course and results of such examination in a protocol or official document attached to the criminal case. In addition, a specialist from an authorized unit of a law enforcement or special state body of the Republic of Kazakhstan, with the permission of the body conducting the criminal proceedings, is entitled to conduct comparative examinations that result in the partial destruction of objects, provided that the extent of such destruction does not preclude the possibility of conducting a forensic examination of those objects, with the course and results of such examination recorded in a specialist's report prepared in accordance with the requirements of the CPC (Part 3 of Article 80, Part 2 of Article 111, Article 117 of the CPC). A specialist's report is not binding on the body conducting the criminal proceedings; however, any disagreement with the report must be substantiated (Part 7 of Article 117 of the CPC). At the initiative of the parties, including where they disagree with the specialist's report, the body conducting the criminal proceedings is entitled to order an expert examination (Article 272 of the CPC). Unlike an examination conducted by a specialist within the framework of a specific investigative or judicial action, an expert examination is ordered in cases where circumstances relevant to the case can be established only as a result of an expert examination of the materials of the criminal case based on specialized scientific knowledge. An expert's report is also an independent source of evidence in a criminal case (Part 2 of Article 111, Articles 270–271 and 283 of the CPC).
• The concept of “specialized scientific knowledge” (subparagraph 6 of Article 7 of the CPC) and the underlying principles thereof are set out in the Law of the Republic of Kazakhstan “On Forensic Expert Activities” dated 10 February 2017. This Law establishes that an expert's report must necessarily include, among other required information, the content and results of the examinations, indicating the methodologies used (subparagraphs 1, 4 and 6 of Article 1, paragraph 1 of Article 39 of the Law, Part 2 of Article 283 of the CPC). The development, testing and implementation of forensic examination methodologies shall be carried out in accordance with the procedure established by the Ministry of Justice of the Republic of Kazakhstan or the authorized body in the field of healthcare (see “On Approval of the Rules for the Development, Testing and Implementation of Forensic Examination Methodologies”: Order No. 330 of the Minister of Justice of the Republic of Kazakhstan dated 30 March 2017) (subparagraph 10 of Article 12, Article 10 of the Law). Information on forensic examination methodologies shall be entered into the State Register of Forensic Examination Methodologies of the Republic of Kazakhstan, the purposes, rules for the formation and procedures for the use of which are established by Order No. 331 of the Minister of Justice of the Republic of Kazakhstan dated 30 March 2017 “On Approval of the Rules for the Formation, Maintenance and Use of the State Register of Forensic Examination Methodologies of the Republic of Kazakhstan” (Article 55 of the Law).
• According to the CPC, applicants (subparagraph 7 of Article 7 of the CPC) include victims in cases of private, private-public and public prosecution and accusation (Articles 32, 187 and 191); the head, founder (participant) or authorized body of a commercial or other organization that is not a state enterprise (Article 33); participants in criminal proceedings who have filed motions on various matters with the bodies conducting criminal proceedings during the pre-trial stage, in court, or after the trial, as well as those who have filed complaints against their decisions and actions at any stage of criminal proceedings (Articles 99–108); and persons who are not participants in criminal proceedings but who, where grounds exist, request that they be recognized as such (Article 109 of the CPC).
• The central stage of criminal proceedings remains the main court hearing (subparagraph 8 of Article 7 of the CPC), during which all the principles of criminal justice are implemented to the fullest extent. At this stage, the criminal case is resolved on its merits: based on the direct examination of the evidence presented by the parties (by conducting the relevant judicial actions), the court of first instance finds the person guilty or not guilty of committing a criminal offence and, accordingly, imposes or does not impose a punishment. The essence of the methods of the main court hearing is most fully revealed through the principle of conducting proceedings on the basis of adversarial proceedings and equality of the parties (Article 23 of the CPC). In particular, Article 23 of the CPC establishes that the court is not a body of criminal prosecution, does not act on the side of the prosecution or the defence, and does not represent any interests other than the interests of law (Part 5); while maintaining objectivity and impartiality, the court is obliged to create the necessary conditions for the parties to perform their procedural duties and exercise the rights granted to them (Part 6). It is of fundamental importance that, during the main court hearing, the court is obliged to be guided by the requirements governing the general conditions of the main court hearing. Although, in terms of their significance, these conditions do not reach the level of the principles of criminal procedure, they nevertheless contribute to their most effective implementation at this stage of criminal proceedings (Articles 331–349 of the CPC). In order to ensure the orderly and uninterrupted conduct of the main court hearing, its commencement is preceded by the stage of preparation of the criminal case for trial by the court (Articles 319–330 of the CPC). Overall, the main court hearing, as a stage of criminal proceedings, comprises five successive stages in the progression of the criminal case: the preparatory part, the judicial investigation, the closing arguments, the defendant's final statement, and the rendering of the judgment (Articles 350–406 of the CPC).
• In Kazakhstan, courts of first instance (subparagraph 9 of Article 7 of the CPC) are district and equivalent courts, specialized interdistrict juvenile courts, specialized interdistrict criminal courts, specialized interdistrict military criminal courts, and garrison military courts. They resolve on the merits all criminal cases in the country, except for cases falling within the jurisdiction of regional and equivalent courts (Article 8 of the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan”, Articles 306–309 of the CPC). All criminal cases in courts of first instance are considered by a single judge, whereas cases involving crimes for which the criminal law provides for the death penalty or life imprisonment, as well as cases involving certain other particularly serious crimes, shall, upon the application of the accused, be considered by a court consisting of one judge and ten jurors, with the exception of cases involving murders committed under a state of emergency and during mass riots, cases involving military crimes committed during wartime or in a combat situation, and cases involving certain other crimes (Part 1 of Article 52 of the CPC). Figuratively speaking, a court of first instance is the initial, determining and principal “court on the case”. Following consideration of the case, this court issues decisions in the form of judgments and rulings, which enter into legal force upon the expiry of the period prescribed by law — 15 days from the date of pronouncement of the judgment, and, for convicted persons held in custody, within the same period from the date on which they receive a copy of the court decision (Part 1 of Article 415 of the CPC). Regional and equivalent courts, the Military Court and the Supreme Court are not courts of first instance (Article 81 of the Constitution, Articles 11, 17 and 18 of the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan”, Articles 310–311 and 318 of the CPC).
• Subparagraph 9 of Article 7 of the CPC also classifies specialized investigative courts and specialized interdistrict investigative courts as courts of first instance (see “On the Establishment of Specialized Investigative Courts of the Republic of Kazakhstan and Certain Personnel Matters of the Courts of the Republic of Kazakhstan”: Decree No. 620 of the President of the Republic of Kazakhstan dated 10 January 2018). The jurisdiction of the investigating judges of these courts is determined by Articles 54 (Part 3), 55, 56, 232, 234, 240, 306, 547, 549, 550, 551, 588 and 589 of the CPC (Part 3). At the same time, if specialized investigative courts or specialized interdistrict investigative courts have not been established within the territory of the relevant administrative-territorial unit, the materials assigned to their jurisdiction may be considered by district and equivalent courts (investigating judges), except in the cases provided for by Articles 232, 234 and 240 of the CPC. The investigating judge (judges) of a district or equivalent court shall be appointed from among the judges by the chairperson of that court. Where replacement of an investigating judge is necessary, the judge may be reappointed (Note to Article 306 of the CPC).
• Unlike specialized investigative courts, specialized interdistrict investigative courts are intended to exercise judicial oversight over the observance of the rights, freedoms and legitimate interests of persons in criminal proceedings, that is, over the legality and validity of the actions and decisions of pre-trial investigation bodies in criminal cases falling within the jurisdiction of specialized interdistrict criminal courts, as well as specialized interdistrict military criminal courts (Articles 308–309 of the CPC).
• In the process of proving, for the purpose of establishing circumstances relevant to the lawful, substantiated and fair resolution of a case, the bodies conducting criminal proceedings are entitled, when carrying out procedural actions (including investigative and judicial actions), to use scientific and technical means independently or with the involvement of an appropriate specialist (subparagraph 10 of Article 7 of the CPC). Scientific and technical means may also be used in the process of proving in a criminal case by an expert and a specialist in the performance of their procedural duties provided for by the CPC. When conducting investigative actions, with the exception of the investigative actions specified in Part 6 of Article 197 of the CPC (during which the participation of attesting witnesses is mandatory), the CPC requires the use of scientific and technical means to record the course and results of such actions. However, if scientific and technical means are unavailable or cannot be used during investigative actions, attesting witnesses shall be involved (Part 6 of Article 197 of the CPC). The use of scientific and technical means shall be deemed admissible if they are expressly provided for by law or do not contradict its provisions and principles; are scientifically sound; ensure the effectiveness of criminal proceedings; and are safe (Part 3 of Article 126 of the CPC).
• Close relatives (subparagraph 11 of Article 7 of the CPC) (see also the explanation of the concept of “legal representatives”, subparagraph 13) may, subject to compliance with the procedural form, act during criminal proceedings as defence counsel for suspects and accused persons, as legal representatives of minor victims, suspects and accused persons, as well as persons who, due to their physical or mental condition, are unable to independently protect their rights and legitimate interests. According to the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family” dated 26 December 2011, close relatives are parents (a parent), children, adoptive parents, adopted children, full and half-brothers and sisters, grandfathers, grandmothers and grandchildren (subparagraph 13 of paragraph 1 of Article 1). The participation of close relatives substantially enriches criminal proceedings, strengthens their educational and preventive foundations, and contributes to a comprehensive, complete and objective examination of the circumstances of a criminal case.
• Alongside investigative and judicial actions, the CPC regulates so-called covert investigative actions (Articles 231–251) (subparagraph 12 of Article 7 of the CPC). The specific feature of covert investigative actions is that they are conducted before trial, exclusively at the stage of pre-trial investigation of a criminal case. Furthermore, as a general rule, they are not conducted by the pre-trial investigation body itself in its capacity as the body conducting criminal proceedings. Their implementation, with the exception of covert monitoring of postal and other items (which may be conducted personally by an investigator or inquiry officer), is carried out, upon the instruction of the pre-trial investigation body, by an authorized unit of a law enforcement or special state body using the forms and methods of operational-search activities.
• The suspension of the time limits for pre-trial investigation precludes the conduct of investigative actions in the case but does not prevent the continuation of covert investigative actions.
• For the purpose of protecting the rights and legitimate interests of a minor victim, a civil claimant, a victim who, due to their physical or mental condition, is deprived of the ability to independently protect their rights and legitimate interests, as well as a minor suspect or accused person, their legal representatives (subparagraph 13 of Article 7 of the CPC) shall be mandatorily involved in the case. They shall submit to the bodies conducting criminal proceedings documents certifying their family relationship or authority (Articles 17, 22–24, 26–27 and 164 of the Civil Code (General Part), Articles 64–65, 71–75, 537 and 542 of the CPC). Thus, this concerns ensuring the rights and legitimate interests of legally incapacitated participants in proceedings, persons who do not possess full legal capacity, or persons recognized as having limited legal capacity. In criminal proceedings, such persons are represented by their parents (parent), adoptive parents, guardian or custodian, foster caregiver, and other persons replacing them who, in accordance with the legislation of the Republic of Kazakhstan, provide care, education and upbringing for the child and protect the child's rights and interests (subparagraph 12 of paragraph 1 of Article 1 of the Code “On Marriage (Matrimony) and Family”).
• Note: Obvious spelling errors, typographical errors and distortions resulting from text recognition have been corrected. Where the original statutory references or text fragments were incomplete or damaged, I have not presented speculative corrections as reliable information. For example, the references “paragraph ... of Article 39 of the Law”, “Part ... of Article 52 of the CPC” and “Part ... of Article 415 of the CPC” require verification against the original.
• The cassation instance (subparagraph 14 of Article 7 of the CPC) is an independent judicial instance, figuratively speaking, a “court above the court” (this expression was also first used in the fundamental work by M. A. Cheltsov-Bebutov, “Course of Criminal Procedure Law” (Moscow, 1957), with reference to the work by E. Hélie, “Traité de l'instruction criminelle: ou Théorie du Code d'instruction criminelle”, 2nd ed., Paris, 1867 (the Course was republished in St. Petersburg, Ravena, Alfa, 1995, p. 509). It does not resolve a criminal case on its merits and operates within the Supreme Court of the Republic of Kazakhstan at the level of the relevant Judicial Chamber for Criminal Cases (paragraph 1 of Article 17, subparagraph 4 of paragraph 3 of Article 18 of the Constitutional Law of the Republic of Kazakhstan “On the Judicial System and Status of Judges of the Republic of Kazakhstan”). Where grounds exist, referral of a case to this instance is a right of participants in criminal proceedings. Its functions include reviewing judgments and rulings of district and equivalent courts (including specialized interdistrict courts) upon complaints only after they have been considered by the appellate instance, upon protests, as well as judgments and rulings of the appellate instance that have entered into legal force. Judicial acts rendered in cases involving criminal misdemeanors and minor-gravity crimes; court rulings issued during judicial proceedings concerning the recognition of a law or other regulatory legal act applicable in the case as unconstitutional (Part 2 of Article 10 of the CPC); rulings concerning the procedure and method of examining evidence, motions of participants in the proceedings, maintenance of order in the courtroom, refusal of the public and private prosecutors to pursue the accusation, as well as rulings falling within the jurisdiction of the investigating judge (Articles 55–56, Parts 1–2 of Article 484 of the CPC) shall not be subject to review under cassation proceedings. The subject matter of cassation review is the activity of the relevant court in verifying whether the court that rendered the judgment or ruling complied with the provisions of criminal law and criminal procedure law and, on that basis, whether the judgment or ruling is lawful, substantiated and fair. As a result of consideration of the case, the cassation instance issues an appropriate decision in the form of a ruling, which enters into legal force from the moment of its pronouncement (Article 443, Part 19 of Article 494, Article 496 of the CPC).

 - In exceptional cases, the Supreme Court shall also be entitled to review, in the Judicial Collegium for Criminal Cases, judicial acts of local and other courts that have entered into legal force where the appellate procedure for appealing them has not been complied with, as well as judicial acts in cases involving criminal misdemeanors and minor-gravity crimes, upon a submission by the Chairperson of the Supreme Court of the Republic of Kazakhstan on the grounds specified in Part 2 of Article 485 of the Criminal Procedure Code, or upon a protest by the Prosecutor General of the Republic of Kazakhstan where the grounds provided for in Article 485 of the Criminal Procedure Code exist.

- In addition, on the grounds specified in Part 2 of Article 485 of the Criminal Procedure Code, the Supreme Court shall also be entitled to conduct a repeated review, by way of cassation, of judicial acts of its own Collegium that have entered into legal force, upon a submission by the Chairperson of the Supreme Court of the Republic of Kazakhstan or a protest by the Prosecutor General of the Republic of Kazakhstan (Part 4 of Article 484 of the Criminal Procedure Code).

- It is also important to note that, in all the above-mentioned cases, when conducting a court hearing, the Judicial Collegium for Criminal Cases of the Supreme Court is guided by the rules set forth in Part 18 of Article 494 of the Criminal Procedure Code, which are analogous to the subject matter of appellate review of a case (Article 424 of the Criminal Procedure Code).

- It should also be noted that the Criminal Procedure Code does not vest the Plenary Session of the Supreme Court with procedural powers. At the same time, the features of criminal proceedings in the activities of this body of the Supreme Court are directly set out in the Constitutional Law of the Republic of Kazakhstan “On the Judicial System and Status of Judges of the Republic of Kazakhstan” and are expressed in the fact that it provides the Chambers of the Parliament of the Republic of Kazakhstan with an opinion in the case provided for in paragraph 2 of Article 47 of the Constitution of the Republic of Kazakhstan (regarding the validity of the accusation of the President of the Republic of high treason).

- An electronic document and an electronic digital signature (subparagraph 15 of Article 7 of the Criminal Procedure Code) are concepts regulated by the Law of the Republic of Kazakhstan dated January 7, 2003, “On Electronic Documents and Electronic Digital Signatures” (subparagraphs 12 and 16 of Article 1). An electronic document is a document in which information is presented in electronic-digital form and certified by means of an electronic digital signature (subparagraph 12 of Article 1); an electronic digital signature is a set of electronic digital symbols created by means of electronic digital signature tools and confirming the authenticity of an electronic document, its ownership and the invariability of its contents (subparagraph 16 of Article 1). In turn, electronic digital signature tools constitute a set of software and technical means used to create and verify the authenticity of an electronic signature (subparagraph 17 of Article 1 of the Law). An electronic document may be created, transmitted, stored and submitted by electronic means. An electronic document that complies with the requirements of the Law “On Electronic Documents and Electronic Digital Signatures” is equivalent to a document on paper (paragraph 1 of Article 7 of the Law). An electronic digital signature is equivalent to the handwritten signature of the person signing the document and entails the same legal consequences provided that the following conditions are met: 1) the authenticity of the electronic digital signature has been certified using a public key that has a registration certificate; 2) the person who signed the electronic document lawfully possesses the private key of the electronic digital signature; 3) the electronic digital signature is used in accordance with the information specified in the registration certificate, etc. (paragraph 1 of Article 10 of the Law).

- Examples of electronic documents include transactions of individuals and legal entities, equivalent to transactions made in writing, aimed at establishing, changing or terminating civil rights and obligations and executed in the form of an electronic document (Article 147 and paragraph 3 of Article 152 of the Civil Code); the results of the provision of public services through the “electronic government” web portal www.e.gov.kz, which are sent to the service recipient’s “personal account” in the form of an electronic document signed with the electronic digital signature of an authorized person of the service provider; an application by an individual or legal entity concerning a criminal offense; a statement of claim by a civil claimant; an application for the return of a statement of claim or for withdrawal of a claim; comments on the audio and video recording and the brief record of the main court hearing, etc.

- In general, the procedure for electronic document management is regulated by the relevant Rules approved by Resolution No. 430 of the Government of the Republic of Kazakhstan dated April 17, 2004.

- A resolution of the body conducting criminal proceedings (subparagraph 16 of Article 7 of the Criminal Procedure Code) is an act of state authority and has either a final nature (for example, a resolution terminating a criminal case) or constitutes an interim result of procedural activity (for example, a prosecutor’s resolution committing the accused for trial and referring the criminal case to court). In certain cases, it precedes the commencement of a procedural action (for example, a resolution authorizing a search) or constitutes the form in which such action is completed (for example, a resolution recognizing an item or document as physical evidence and attaching it to the case file). As a procedural act, a resolution has a specific structure and consists of introductory, descriptive and reasoning, and operative parts (Article 198 of the Criminal Procedure Code). During the main court hearing, resolutions issued by the court are either drawn up as separate documents or entered into the record of the court hearing (Article 344 of the Criminal Procedure Code). A type of judicial resolution is a special resolution issued pursuant to Article 405 of the Criminal Procedure Code, as well as resolutions issued in appellate and cassation proceedings (Articles 443 and 496 of the Criminal Procedure Code), etc.

- 18. Defense, within the meaning of subparagraph 17 of Article 7 of the Criminal Procedure Code, should be understood as a set of techniques and methods established by the Criminal Procedure Code which defense counsel (a lawyer) is obliged to use when providing legal assistance to suspects and accused persons (Part 2 of Article 70 and Part 3 of Article 122 of the Criminal Procedure Code). Issues concerning compensation for harm caused by unlawful actions of the body conducting criminal proceedings occupy an important place within the scope of the defense provided (Articles 37–42 of the Criminal Procedure Code).

- The existence of the prosecution party objectively presupposes the existence of a defense party against the suspicion or accusation brought (subparagraph 18 of Article 7 of the Criminal Procedure Code). The central figure of the defense party undoubtedly remains defense counsel, primarily a lawyer (Part 2 of Article 66, Articles 202, 203–204 and 340 of the Criminal Procedure Code). In accordance with paragraph 3 of Article 13 of the Constitution, everyone has the right to receive qualified legal assistance, which is associated with lawyers, as well as persons providing legal assistance as representatives of one or another participant in the proceedings (Article 76 of the Criminal Procedure Code). Where a lawyer participates in criminal proceedings as defense counsel, the defense of the person concerned may also be carried out, alongside the lawyer, upon the written application of a witness entitled to defense, a suspect, an accused person, a defendant, a convicted person or an acquitted person, by one of the following persons: their spouse or close relative, guardian, custodian, or a representative of an organization under whose care or maintenance the person being defended is placed (Part 2 of Article 66 of the Criminal Procedure Code). These persons supplement the activities of professional defense counsel, which is consistent with the constitutional requirements concerning everyone's right to protect their rights and freedoms by all means not contrary to the law (paragraph 1 of Article 13 of the Constitution, Articles 2–3 of the Law dated July 5, 2018, “On Advocacy and Legal Assistance”, and paragraph 4 of Regulatory Resolution No. 26 of the Supreme Court dated December 6, 2002, “On the Practice of Applying Criminal Procedure Legislation Governing the Right to Defense”). Foreign lawyers are permitted to participate in a case as defense counsel if this is provided for, on a reciprocal basis, by an international treaty between the Republic of Kazakhstan and the relevant state, in accordance with the procedure determined by law (Part 2 of Article 66 of the Criminal Procedure Code; see also Article 4 of the Criminal Procedure Code).

- The final decisions of the body conducting criminal proceedings (subparagraph 19 of Article 7 of the Criminal Procedure Code), at the pre-trial investigation stage and at the judicial stages, provided that they have entered into legal force, include: a resolution terminating a criminal case; a judgment; and resolutions of the appellate and cassation courts. In turn, decisions that resolve a case on its merits, albeit not finally, may include a protocol on a criminal misdemeanor, a resolution on the application of summary proceedings, an indictment, a resolution committing the accused for trial, a resolution scheduling the main court hearing, etc.

- The procedure for international cooperation in the field of criminal proceedings is regulated by Section 12, Chapters 58–61 of the Criminal Procedure Code, as well as by international treaties of the Republic of Kazakhstan on legal and other assistance in criminal cases. The national authority referred to in subparagraph 20 of Article 7 of the Criminal Procedure Code is the national authority conducting criminal proceedings from which requests (instructions, petitions) for legal assistance may be sent to the competent authorities of foreign states, or the national authority conducting criminal proceedings that executes such requests received from those states. In this regard, the Criminal Procedure Code distinguishes between the central authorities of the Republic of Kazakhstan (the General Prosecutor’s Office and the Supreme Court), the authority authorized to conduct communications, and the competent authority of a foreign state. In any event, when dealing with requests, national authorities conducting criminal proceedings must be guided by international treaties of the Republic of Kazakhstan concerning legal and other assistance in criminal cases, which must specify the Kazakhstani and foreign central and other competent state authorities responsible for the procedure governing such cooperation (see also Resolution No. 1453 of the Government of the Republic of Kazakhstan dated December 31, 2004, “On Measures to Implement the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993, and the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of October 7, 2002”).

- As a rule, legal assistance (subparagraph 21 of Article 7 of the Criminal Procedure Code) includes only those types of legal assistance that fall within its scope and the types set out in international treaties of the Republic of Kazakhstan with other countries on these matters, as well as any other legal assistance provided for by the legislation of the parties to the treaty and not contrary to such treaties. For example, the search for persons, items, property, funds and proceeds; service of documents; provision of guarantees; obtaining testimony or statements; hearing persons by videoconference; establishing banking and financial information; searches and inspections of persons, items and premises; return of items; implementation of confiscation; voluntary exchange of information on various matters, etc. In this regard, anything that falls outside the scope and types of legal assistance established by the treaty cannot be carried out by either party to the request.

- This concept also implies the provision of legal assistance to the relevant international judicial institutions, for example, the International Criminal Court, etc. (see “On Ratification of the Agreement between the Republic of Kazakhstan and the United States of America on the Surrender of Persons to the International Criminal Court” dated September 22, 2003: Law of the Republic of Kazakhstan No. 598 dated October 4, 2004; Advisory Opinion of the Economic Court of the Commonwealth of Independent States No. С-1/19-96 dated May 15, 1997, on the question of which specific international judicial bodies the member states of the Commonwealth of Independent States may apply to, etc.).

- Criminal prosecution (accusation) (subparagraph 22 of Article 7 of the Criminal Procedure Code) at the pre-trial stages is assigned to criminal prosecution authorities and is formulated in such procedural decisions as: a resolution terminating a criminal case on grounds that do not rehabilitate the person (Articles 35–36 and 288–290 of the Criminal Procedure Code); an indictment (Part 1 of Article 65, Articles 298–300 and 302 of the Criminal Procedure Code); a protocol on a criminal misdemeanor (Articles 525–528 of the Criminal Procedure Code); a resolution on the application of summary proceedings (Article 629-2 of the Criminal Procedure Code); a resolution committing the accused for trial and referring the criminal case to court (Part 1 of Article 305 of the Criminal Procedure Code); and a procedural agreement in the form of a plea agreement (Part 4 of Article 617 of the Criminal Procedure Code). During court proceedings, the duty to prove a person's guilt in committing a criminal offense and to refute the arguments put forward by that person in their defense becomes the function of public and private prosecutors (Articles 337, 366, 383 and 407–413 of the Criminal Procedure Code).

- Law enforcement in the field of criminal proceedings, carried out in procedural form by criminal prosecution authorities (officials) (subparagraph 23 of Article 7 of the Criminal Procedure Code), ensures the fulfillment of the tasks and objectives of criminal proceedings. Unlike other criminal prosecution authorities (officials), the prosecutor has competence and powers that other criminal prosecution authorities do not possess (Articles 58, 193 and 337 of the Criminal Procedure Code): this is an organic combination of supervisory functions with the function of criminal prosecution. The prosecutor carries out criminal prosecution at all stages of criminal proceedings. Undoubtedly, the scope of the prosecutor’s procedural powers is expanded by their constitutional duty to represent the interests of the state in court (paragraph 6 of the operative part of Regulatory Resolution No. 3 of the Constitutional Council of the Republic of Kazakhstan dated March 6, 1997). Alongside prosecutors, the Criminal Procedure Code assigns criminal prosecution to investigators — officials authorized to conduct pre-trial investigations in criminal cases within their competence: investigators of internal affairs bodies, investigators of national security bodies, investigators of the anti-corruption service, and investigators of the economic investigation service (Part 1 of Article 60, Article 187, and subparagraph 12 of Part 1 of Article 193 of the Criminal Procedure Code); inquiry bodies — internal affairs bodies, national security bodies, the anti-corruption service, the economic investigation service, military police bodies, military police bodies of the National Security Committee, border service bodies, commanders of military units and formations, heads of military institutions and garrisons in the absence of a military police body, heads of diplomatic missions, consular institutions and authorized representative offices of the Republic of Kazakhstan, and the State Security Service of the Republic of Kazakhstan (Article 61 of the Criminal Procedure Code); and inquiry officers — officials authorized by an inquiry body to conduct a pre-trial investigation in a case within their competence (Articles 63 and 191 of the Criminal Procedure Code). Undoubtedly, an important role in criminal prosecution is played by heads of investigative departments and heads of inquiry bodies (Articles 59 and 62 of the Criminal Procedure Code), as the persons directing the investigation in a criminal case, as well as prosecutors and procedural prosecutors who supervise the criminal case from the commencement of the pre-trial investigation and participate in the court of first instance as public prosecutors (Article 193 of the Criminal Procedure Code).

• Other persons participating in criminal proceedings (subparagraph 24 of Article 7 of the CPC) contribute to the proper resolution of a criminal case by virtue of the procedural functions they perform at various stages of criminal proceedings. These are persons whose assistance is sought by the bodies conducting criminal proceedings in order to ensure the proper progress of a criminal case when carrying out procedural (investigative and judicial) actions at the stages of criminal proceedings. For example, the participation of an attesting witness in criminal proceedings is more characteristic of the pre-trial investigation stage (Article 82 of the CPC); the participation of a court hearing secretary and a court bailiff is characteristic of the main court hearing (Articles 83–84 of the CPC); the participation of a witness, expert, specialist, interpreter, and mediator is characteristic of all stages of criminal proceedings (Articles 78, 79, 80, 81, 85 of the CPC).
• 26. Participants in criminal proceedings (subparagraph 25 of Article 7 of the CPC) are participants in criminal procedural legal relations that arise, develop, and terminate in the course of criminal proceedings on the basis of the rules and in accordance with the procedure prescribed by the CPC, and who possess procedural rights and obligations (legal capacity). In accordance with the classification established by the CPC, all participants in criminal proceedings are divided into four groups: the court, as an organ of judicial power administering justice in criminal cases (Articles 51–57); state bodies and officials performing the functions of criminal prosecution (the prosecutor, the head of the investigative department, the investigator, the body of inquiry, the head of the body of inquiry, and the interrogating officer (Articles 58–63)); participants in proceedings who protect their own rights and interests or those of the persons they represent (the suspect, accused, defense counsel, victim, private prosecutor, civil claimant, civil defendant, legal representatives of a minor suspect, accused, defendant, or convicted person, representatives of the victim, civil claimant and private prosecutor, and representatives of the civil defendant (Articles 64–77)); and other persons participating in criminal proceedings (witness, expert, specialist, interpreter, attesting witness, court hearing secretary, court bailiff, and mediator) (Articles 78–85).
• Criminal procedural activities are carried out by specially authorized state bodies and officials and constitute a complex, sequential activity that passes through several stages in its development. No one else in the state is permitted to apply the rules of criminal procedural law, which constitutes a special legal form of combating crime and administering criminal justice. Legal relations arising in the course of criminal proceedings are, in essence, relations of authority and subordination and are characterized by an authoritative nature, since they are carried out through the competence and powers of criminal prosecution bodies (officials) and the court, without which criminal procedural activities would simply be impossible. It is precisely for this reason that these bodies and officials are classified by the CPC as bodies conducting criminal proceedings (subparagraph 26 of Article 7 of the CPC).
• A criminal case (subparagraph 27 of Article 7 of the CPC) arises from the moment an application or report concerning a criminal offense is registered in the Unified Register of Pre-Trial Investigations, or from the moment the first urgent investigative action is carried out prior to such registration (Articles 179 and 180 of the CPC). A criminal case may be maintained in electronic format (Article 42-1 of the CPC).
• The Unified Register of Pre-Trial Investigations is an automated database into which information concerning the grounds for initiating a pre-trial investigation listed in paragraph 1 of Article 180 of the CPC, procedural decisions adopted in relation thereto, actions performed, the progress of criminal proceedings, applicants and participants in criminal proceedings is entered, and in which criminal proceedings are also maintained in electronic format at the pre-trial investigation stage (see subparagraph 14 of paragraph 2 of Order No. 89 of the Prosecutor General dated September 19, 2014, “On Approval of the Rules for Receiving and Registering Applications, Reports or Official Reports concerning Criminal Offenses, as well as for Maintaining the Unified Register of Pre-Trial Investigations”).
• Where grounds for initiating a pre-trial investigation exist, the interrogating officer, investigator, head of the body of inquiry, head of the investigative department, and prosecutor, within the limits of their competence and in accordance with the procedure established by the CPC, accept the criminal case for their proceedings by issuing a resolution and commence the pre-trial investigation (paragraph 1 of Article 180 of the CPC). A criminal case involving a private prosecution is initiated by one or several persons through the submission to the court of a complaint requesting that a person be held criminally liable (paragraph 1 of Article 408 of the CPC). A criminal case reflects all procedural activities of the body conducting criminal proceedings, expressed through the aggregate of procedural documents and official papers prepared by it and containing information about the procedural actions performed and procedural decisions adopted in the criminal case. The CPC also requires that documents identifying the accused be attached to the criminal case (Article 300). The importance of properly preparing the materials of a criminal case is demonstrated by Article 112 of the CPC. In accordance with this Article, the testimony of a suspect, accused, victim or witness, the opinion of an expert or specialist, physical evidence, records of investigative and judicial actions, and other documents may not form the basis of the accusation if they have not been included in the inventory of the criminal case materials (paragraph 3 of Article 112 of the CPC). Case materials constitute the source and original basis of any proceedings in a case and of the criminal case itself; they include procedural and non-procedural documents, as well as items recognized by a resolution of the body conducting criminal proceedings as physical evidence and attached to the case (Articles 111–120 of the CPC). Case documents also include explanations, inventory and audit reports, certificates, tax inspection reports, conclusions of tax authorities, as well as materials containing computer information, photographs and film recordings, audio and video recordings (paragraph 3 of Article 120 of the CPC).
• The CPC regulates the procedure for restoring a lost criminal case or its materials (Article 293 of the CPC).
• A prosecutor participating in the judicial examination of a criminal case represents the interests of the state by maintaining the public prosecution (subparagraph 28 of Article 7 of the CPC) and acts as a public prosecutor (paragraph 1 of Article 58 of the CPC), which significantly increases the scope of his procedural powers (see Regulatory Resolution No. 3 of the Constitutional Council dated March 6, 1997, “On Official Interpretation of Paragraph 1 of Article 4, Paragraph 1 of Article 14, Subparagraph 3 of Paragraph 3 of Article 77, Article 79 and Paragraph 1 of Article 83 of the Constitution of the Republic of Kazakhstan”).
• By virtue of this circumstance, alongside the heads of pre-trial investigation bodies (inquiry and investigation), the prosecutor has historically, and continues today, to direct the course of the investigation of a criminal case by issuing binding written instructions, etc., while remaining an official with a higher level of competence and authority in pre-trial criminal proceedings.
• The participation of a prosecutor as a public prosecutor in the main court hearing, and of a prosecutor in the courts of appeal and cassation in a particular criminal case involving public, private-public prosecution and criminal prosecution, is mandatory, except in cases involving private prosecution. In complex and particularly complex cases, the public prosecution may be maintained by several prosecutors. The procedural activities of the prosecutor in these judicial instances consist of presenting evidence and participating in its examination, expressing an opinion to the court on the merits of the accusation, as well as on other issues arising during the trial, and making proposals to the court concerning the application of criminal law and the imposition of punishment on the defendant. The prosecutor may amend the accusation. The prosecutor is obliged to withdraw the accusation, in whole or in part, if he concludes that it has not been confirmed during the judicial examination. The prosecutor is also entitled, before the commencement of the main court hearing, to withdraw the case from the court and terminate it on the grounds provided for by the CPC. Following the withdrawal of a case from the court by the prosecutor for its termination, conducting new pre-trial proceedings in that case and resubmitting it to the court are not permitted. In cases provided for by the CPC, the prosecutor is entitled to conclude a procedural agreement with the defendant (paragraphs 6–7 of Article 35, Article 337, paragraph 6 of Article 428, Article 622 of the CPC).
• The concept of “actual detention” (subparagraph 29 of Article 7 of the CPC) was first developed in the course of constitutional proceedings by the Constitutional Council in connection with an application by the Prime Minister of the Republic of Kazakhstan seeking an official interpretation of the provisions of the Constitution of the Republic of Kazakhstan concerning the calculation of constitutional time limits, and was subsequently enshrined in its Regulatory Resolution No. 2 dated April 13, 2012: “... The beginning of the detention period is the hour, calculated to the exact minute, at which the restriction of the detained person's liberty, including freedom of movement — namely, forcible detention at a particular location, forcible delivery to the bodies of inquiry and investigation (apprehension, confinement in premises, compelling a person to go somewhere or remain in a particular place, etc.), as well as any other actions substantially restricting a person's personal liberty — becomes actual, regardless of whether the detained person has been assigned any procedural status or whether any other formal procedures have been completed. The end of this period shall be the expiration of seventy-two hours, calculated continuously from the time of actual detention” (paragraph 1). When a person is detained on suspicion of committing a criminal offense, the period shall be calculated from the moment (the hour, accurate to the minute) when this measure is actually applied, as provided in paragraph 5 of Article 48 of the CPC. The detention record must indicate who detained the suspect, the grounds and motives for detention, the place of detention, the time of actual detention and delivery (specifying the hour and minute), and other information (subparagraph 2 of paragraph 2 of Article 131 of the CPC).
• A protest (subparagraph 30 of Article 7 of the CPC) is classified within the system of legal acts of the prosecution service as an act of prosecutorial supervision, whereas a motion is classified as an act of prosecutorial response (Articles 23–24 and 29 of the Law “On the Prosecutor's Office” dated June 30, 2017). At the judicial stages, where grounds exist, a protest is lodged by a prosecutor by way of cassation against court judgments and rulings that have entered into legal force. The right to lodge a protest at this stage belongs to a prosecutor authorized under the CPC, including the Prosecutor General (Articles 58, 414, 486, etc. of the CPC).
• At the pre-trial investigation stage, the prosecutor is entitled to submit motions concerning resolutions of the investigating judge on the matters specified in paragraph 1 of Article 107 of the CPC; when preparing a case for hearing by the court and during the main court hearing in the court of first instance, the prosecutor is also entitled to submit various motions (paragraph 1 of Article 321, Article 337 of the CPC). Proceedings before the court of appeal may be initiated on the basis of the prosecutor's reasoned appellate motion (Articles 414–416 of the CPC).
• The concept of “central authority” (subparagraph 31 of Article 7 of the CPC) is governed by the provisions of the CPC (Section 12 of the CPC) and by international treaties, agreements and conventions of the Republic of Kazakhstan concerning legal and other assistance in criminal cases. Thus, paragraph 1 of Article 559 of the CPC (Article 16 and subparagraph 7 of paragraph 2 of Article 38 of the Law “On the Prosecutor's Office”) designates the Prosecutor General's Office of the Republic of Kazakhstan or an authorized prosecutor as central authorities responsible for submitting requests (instructions, motions) for legal assistance in conducting pre-trial investigations, carrying out criminal prosecution, extraditing persons, temporarily extraditing persons or transporting them in transit, temporarily transferring persons, transferring convicted persons and persons suffering from mental disorders in respect of whom compulsory medical measures have been applied, recognizing and enforcing judgments, and considering corresponding requests from competent authorities of foreign states.
• In accordance with paragraph 2 of Article 559 of the CPC, the Supreme Court of the Republic of Kazakhstan is also designated as a central authority and is vested with the right to submit requests (instructions, motions) on behalf of courts for legal assistance during judicial proceedings and to consider corresponding requests from courts of foreign states. As a rule, these state bodies of the Republic of Kazakhstan are designated as central authorities in the international treaties, agreements and conventions of the Republic of Kazakhstan concerning legal and other assistance in criminal cases. This is particularly characteristic of Kazakhstan's treaties in the field of criminal procedure concluded in recent years.
• The list of central and other state bodies authorized to implement the provisions of the Minsk and Chisinau Conventions, established by Resolution No. 1453 of the Government of the Republic of Kazakhstan dated December 31, 2004, “On Measures to Implement the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters dated January 22, 1993, and the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters dated October 7, 2002,” serves to explain the purpose of the expression under consideration.
• Participants in proceedings are entitled to conduct their cases in criminal proceedings personally, as well as to have a representative (subparagraph 32 of Article 7 of the CPC). The personal participation of a participant in proceedings in a case does not deprive that person of the right to have a representative in that case. For example, a victim (a natural or legal person), civil claimant, private prosecutor, civil defendant, legal representative, or witness is entitled to have a representative, such as a lawyer. A representative is admitted to participate in a case on the basis of a resolution issued by the body conducting criminal proceedings (Articles 71, 72, 73, 74, 76 and 77 of the CPC). A representative shall be removed from participation in proceedings in a criminal case where the circumstances specified in Article 94 of the CPC exist. The powers of a representative in criminal proceedings are formalized by analogy with the powers of a representative in civil proceedings (see Articles 60–61 of the Civil Procedure Code).
• A motion (request) (subparagraph 33 of Article 7 of the CPC) for the performance of procedural actions or the adoption of procedural decisions for the purpose of establishing circumstances relevant to the case and ensuring the rights and legitimate interests of the person submitting the motion or the person represented by that person may be submitted at any stage of criminal proceedings and by any participant therein (Article 99 of the CPC). Motions are subject to mandatory consideration by the bodies conducting criminal proceedings, and decisions adopted in response to them may be appealed in accordance with the general rules governing the submission and consideration of complaints (Articles 100–108 of the CPC).
• The provisions of subparagraph 33 of Article 7 of the CPC also classify as motions applications that may be submitted by persons entitled to do so in relation to judicial acts that have entered into legal force, in cassation proceedings (Article 486 of the CPC). Unlike these participants in proceedings, the Chairperson of the Supreme Court submits a representation by way of cassation, while the Prosecutor General and supervising prosecutors lodge protests with the cassation court.
• The concept of “head of a prosecution authority” (subparagraph 34 of Article 7 of the CPC) is regulated due to the introduction into the CPC of provisions concerning the special powers of such a person in pre-trial criminal proceedings. The interpretation of this provision is based on the unified system of prosecution authorities of the Republic of Kazakhstan, which comprises the Prosecutor General's Office, regional prosecutor's offices and equivalent prosecutor's offices (the prosecutor's offices of cities of republican significance and the capital of the Republic of Kazakhstan, the Main Military Prosecutor's Office and the Main Transport Prosecutor's Office), district and equivalent city, interdistrict, as well as specialized prosecutor's offices (military, environmental, transport and special facilities prosecutor's offices) (paragraph 1 of Article 35 of the Law of the Republic of Kazakhstan “On the Prosecutor's Office”). Prosecutors heading the respective levels within the system of prosecution authorities of the Republic of Kazakhstan are simultaneously heads of prosecution authorities. Pursuant to paragraph 2 of Article 193 of the CPC, the division of powers among prosecutors at the pre-trial investigation stage is determined by the Prosecutor General. The exclusive powers of the head of a prosecution authority include: 1) concluding a procedural cooperation agreement; 2) revoking unlawful resolutions of an investigator, interrogating officer or body of inquiry, as well as resolutions and instructions of heads of investigative departments and bodies of inquiry and of a lower-ranking (subordinate) prosecutor; 3) withdrawing a criminal case from the person or body conducting the pre-trial investigation and transferring it to another person or body for the purpose of conducting the pre-trial investigation; 4) submitting a representation to obtain consent to deprive persons enjoying privileges against criminal prosecution of their immunity and to bring them to criminal liability; 5) extending the time limits for investigating criminal cases; 6) considering complaints against the actions and decisions of an investigator, interrogating officer, body of inquiry, heads of investigative departments and bodies of inquiry, as well as a lower-ranking prosecutor; 7) where violations of legality occur, removing an investigator or interrogating officer from conducting the pre-trial investigation in a criminal case; 8) approving the resolution of the procedural prosecutor on returning a criminal case for additional investigation (paragraph 2).
• The concept of “procedural prosecutor” (subparagraph 35 of Article 7 of the CPC) is intrinsically connected with the concept of “head of a prosecution authority”, since it is precisely this official of the prosecution authority who appoints the procedural prosecutor responsible for supervising a criminal case at the pre-trial stages. The procedural prosecutor exercises supervision over a criminal case from the moment the pre-trial investigation begins, within the powers established by paragraph 1 of Article 193 of the CPC, and participates in the court of first instance as a public prosecutor. The procedural prosecutor is not subject to replacement; however, where grounds provided for by regulatory legal acts of the Prosecutor General exist, the head of the prosecutor's office may decide to replace the procedural prosecutor with another procedural prosecutor (paragraph 3 of Article 193 of the CPC). The main powers of the procedural prosecutor (their list) are established in paragraph 1 of Article 193 of the CPC and are exercised primarily in the course of pre-trial investigations in individual criminal cases.
• For the purpose of properly organizing prosecutorial supervision over the legality of pre-trial investigations and maintaining the public prosecution in the court of first instance, Order No. 30 of the Prosecutor General of the Republic of Kazakhstan dated February 27, 2018 approved the List of Cases in Which a Procedural Prosecutor in a Criminal Case May Be Replaced.
• Procedural actions (subparagraph 36 of Article 7 of the CPC) are performed on the basis of and in accordance with the rules, provisions and institutions of the CPC and often result from the adoption of procedural decisions by the body conducting criminal proceedings. However, not all procedural actions are preceded by the adoption of a procedural decision. Procedural actions must be distinguished from investigative and judicial actions. Investigative and judicial actions, as the principal procedural actions of the body conducting criminal proceedings, constitute the driving force behind the process of proving the circumstances of a committed crime and serve as a means of collecting, examining, evaluating and using evidence (Articles 111–113, 121–127, and Articles 364–379 of the CPC). The general rules governing the conduct of investigative actions and the requirements for the record of an investigative action are established in Articles 197 and 199 of the CPC. At the same time, not all procedural actions are simultaneously investigative or judicial actions.
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• The concept of “procedural actions” is much broader and also encompasses organizational, administrative and supporting actions performed by the body conducting criminal proceedings in relation to a criminal case (for example, the application of measures of criminal procedural coercion, the investigator's issuance of instructions to bodies of inquiry to conduct investigative and operational-search measures in criminal cases under their jurisdiction, the investigator's submission of a representation to eliminate circumstances that contributed to the commission of a criminal offense, the court's issuance of a separate ruling, etc.). The performance of procedural actions, arising from the subject matter of procedural activities, generally constitutes the main content of cassation proceedings in a case.
• The expression “procedural agreement” (subparagraph 37 of Article 7 of the CPC) means a special procedural form of activity of the head of a prosecution authority aimed at resolving the tasks and achieving the objectives of criminal proceedings (the prompt and complete disclosure and investigation of criminal offenses, their prevention, the exposure of persons who committed them and their prosecution), with the active assistance of the person who committed the criminal offense. In this regard, the CPC provides for an entire system of rules (subparagraph 1 of paragraph 2 of Article 193, Articles 612–629 of the CPC). In the context of the foregoing, it is necessary to distinguish between the conditions, grounds, sequence and procedure for concluding a procedural agreement in the form of a plea bargain with a suspect, accused or defendant, and a procedural cooperation agreement with such persons and with a person who has already been convicted, since these are not the same.
• Criminal proceedings at any of their stages may be interpreted as an aggregate of procedural actions and procedural decisions of the body conducting criminal proceedings that ensure the fulfillment of the tasks and objectives of this type of state activity. At the same time, the nature of the procedural decisions adopted (subparagraph 38 of Article 7 of the CPC) depends on the body (official) conducting criminal proceedings, the stage of criminal proceedings, and the procedural actions being performed (including investigative and judicial actions). Thus, a judgment is issued exclusively by a court; resolutions are issued by bodies conducting criminal proceedings within the limits of their competence at all stages of criminal proceedings; an indictment is drawn up by a pre-trial investigation body; a representation is submitted by an investigator, a body of inquiry or a prosecutor; and authorization for decisions of a pre-trial investigation body specified by law is granted exclusively by a prosecutor or an investigating judge. Procedural decisions also include the prosecutor's approval of an indictment, a protocol on a criminal misdemeanor, and a resolution on the application of summary proceedings (subparagraph ... of paragraph 1 of Article 302, subparagraph ... of paragraph 3 of Article 528, paragraph 4 of Article 629-3 of the CPC); a protocol on a criminal misdemeanor drawn up upon completion of an inquiry (Articles 526–528); and an investigator's instruction to bodies of inquiry to conduct investigative actions, covert investigative actions and search measures (paragraph 3 of Article 196 of the CPC).
• The right to grant authorization (permission) (subparagraph 39 of Article 7 of the CPC) is vested by criminal procedural law exclusively in an investigating judge of a court of first instance, specialized investigating courts and specialized interdistrict investigating courts (subparagraph 9 of Article 7, Article 55 of the CPC). This also ensures a high level of effectiveness, substantiation and objectivity in implementing the key principles of criminal proceedings and the general conditions of pre-trial investigation. The investigating judge's granting of authorization (permission) is formalized by an appropriate resolution (paragraph 3 of Article 55 of the CPC).
• In addition to the investigating judge, the prosecutor's procedural activities during the pre-trial investigation of a criminal case also include the power to authorize certain procedural actions in the form of approval (see paragraph 3 of Article 147, Article 151, paragraph 3 of Article 153, paragraph 1 of Article 161 of the CPC; see also Article 12 of the Law “On Operational-Search Activities” and Article 50 of the Law “On Banks and Banking Activities in the Republic of Kazakhstan” dated August 31, 1995). Authorization (consent), as an act of prosecutorial supervision, or refusal to grant it is formalized by the prosecutor's endorsement and signature on the resolution of the official after examining the materials on the basis of which authorization is requested (subparagraphs 1–2 of Article 25 of the Law “On the Prosecutor's Office”).
• In commenting on subparagraph 40 of Article 7 of the CPC, it should be noted that the Constitution contains a special chapter regulating the fundamental principles governing the organization and activities of the court and the administration of justice in the Republic of Kazakhstan. In accordance with paragraph 4 of Article 3 of the Constitution, judicial power is a branch of state power and, pursuant to paragraph 2 of Article 75 of the Constitution, is exercised through civil, criminal and other forms of judicial proceedings established by law. The judicial system of the Republic is established by the Constitution of the Republic and by constitutional law. The establishment of special and extraordinary courts under any name is prohibited (paragraph 4 of Article 75 of the Constitution). Judicial power is directly exercised by courts through permanent judges, as well as jurors involved in criminal proceedings in the cases and in accordance with the procedure prescribed by law (paragraph 1 of Article 1 of the Constitutional Law of the Republic of Kazakhstan “On the Judicial System and Status of Judges”). The courts of the Republic of Kazakhstan are the Supreme Court of the Republic, local courts and other courts of the Republic established by law (paragraph 3 of Article 75 of the Constitution). The powers of the Supreme Court, as well as regional, district and equivalent courts, are established by the Constitutional Law (Articles 8, 12 and 17), and in the field of criminal proceedings by the CPC (Chapters 40–49, 51–53), which differ primarily in the categories of criminal cases they hear. Paragraph 1 of Article 1 of the Constitutional Law “On the Judicial System and Status of Judges” additionally establishes the fundamental provisions prohibiting the adoption of legislative acts providing for the transfer of the exclusive powers of courts to other bodies, as well as stipulating that no other bodies or persons are entitled to assume the powers of a judge or the functions of judicial power. Furthermore, paragraph 3 of Article 1 of the Law also prohibits the adoption of laws or other regulatory legal acts that diminish the status and independence of judges.
• The Supreme Court is the highest judicial body in civil, criminal and other cases falling within the jurisdiction of local and other courts, exercises supervision over their activities in the procedural forms prescribed by law, and provides explanations on matters of judicial practice (Article 81 of the Constitution). The above-mentioned Constitutional Law classifies as local courts regional courts and courts equivalent thereto (the city court of the capital of the Republic and the city courts of cities of republican significance); district courts and courts equivalent thereto (city and interdistrict courts); as well as specialized courts (military, financial, economic, administrative, juvenile and other courts) having the status of a regional or district court (subparagraphs 1, 2, 3 and 3-1 of Article 3). All the aforementioned levels of the unified judicial system differ in their jurisdiction, which depends on the categories of cases heard by them.

 The concept of the composition of the court when criminal cases are heard in the relevant judicial instances collegially by judges, by a judge with the participation of jurors, or by a single judge is provided for in Article 52 of the CPC.

• The procedural activities of the criminal prosecution body in cases of public and private-public prosecution and accusation, as well as those of the victim (private prosecutor) and the defence in private prosecution cases before the criminal case is submitted to the court, are generally considered pre-trial proceedings in a criminal case (subparagraph 41 of Article 7 of the CPC). The commencement of a pre-trial investigation is the registration of an application or report concerning a criminal offence in the Unified Register of Pre-Trial Investigations or the performance of the first urgent investigative action (Part 1 of Article 179 of the CPC), while its completion is the issuance by the prosecutor of a resolution committing the accused for trial and forwarding the criminal case to the court having jurisdiction over it (Part 1 of Article 305 of the CPC), approval by the prosecutor of a resolution on the application of summary proceedings in cases involving minor offences and forwarding the criminal case to the court (paragraph 1 of Part 4 of Article 629-3 of the CPC), approval by the head of the inquiry body of a resolution on the application of summary proceedings and forwarding the criminal case to the court for consideration (paragraph 2 of Part 4 of Article 629-3 of the CPC), etc. In private prosecution cases, pre-trial proceedings generally commence when a complaint seeking to bring a person to criminal liability is submitted to the court in compliance with the rules on jurisdiction, and are completed when the judge accepts the complaint for his or her proceedings by issuing a resolution (Part 1 of Article 408, paragraph 1 of Part 2 of Article 409 of the CPC).
• By virtue of the place of judicial power in the system of state power of the Republic, Section 7 of the Constitution of the Republic of Kazakhstan is devoted entirely to courts, judges and justice, and provides for substantial guarantees of judicial activity in legal proceedings (subparagraph 42 of Article 7 of the CPC). The list of principles of justice that judges are obliged to follow when administering justice, the requirements applicable to prospective judges, and the legal status of serving judges are specifically set out in Articles 77–79 of the Constitution. Thus, the Chairperson and judges of the Supreme Court are elected by the Senate upon the proposal of the President of the Republic, based on the recommendation of the High Judicial Council (paragraph 1 of Article 55, paragraph 1 of Article 82 of the Constitution, Articles 24, 30–31 of the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan”). The chairpersons and judges of local and other courts are appointed by the President of the Republic upon the recommendation of the High Judicial Council (paragraph 2 of Article 82 of the Constitution, Articles 24, 30–31 of the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan”). The procedure for the organisation and activities of the High Judicial Council is regulated by the Law of the Republic of Kazakhstan dated 17 November 2008 “On the High Judicial Council of the Republic of Kazakhstan”. The powers of the chairperson of the relevant level of the judicial system or the relevant judicial instance are regulated by Articles 9, 14, 15, 18–22, 25–27 of the Constitutional Law “On the Judicial System and Status of Judges of the Republic of Kazakhstan”. The powers of a judge of the relevant court are regulated by the provisions of the CPC when criminal cases are considered in the relevant judicial instances (Articles 51–54, 57, etc.). In accordance with Part 1 of Article 54 of the CPC, a judge who considers a case individually within the limits of his or her competence, etc., shall have the powers of a court. Judges who consider a case collegially (on appeal, in cassation proceedings or on the basis of newly discovered circumstances) enjoy equal rights with the presiding judge and other judges when deciding all matters arising in connection with the case under consideration (Article 52, Part 2 of Article 54 of the CPC).
• The expression “requesting Party”, within the meaning of subparagraph 43 of Article 7 of the CPC, means both Kazakhstan and a foreign state with which the relevant international treaty on the provision of legal and other assistance in criminal cases has been concluded, whose competent authority submits the corresponding request. This concept also includes the relevant international judicial institution (see the commentary to subparagraph 21 of Article 7 and Article 611 of the CPC).
• The expression “requested Party”, within the meaning of subparagraph 44 of Article 7 of the CPC, means both Kazakhstan and a foreign state with which the relevant international treaty on the provision of legal and other assistance in criminal cases has been concluded, to whose competent authority the corresponding request is sent.
• The proper resolution of a criminal case by a court that is not a party to the criminal proceedings is possible only on the basis of strict observance by all participants in the criminal proceedings of the principle of adversarial proceedings and equality of the prosecution and defence parties (subparagraph 45 of Article 7 of the CPC). The existence of parties in criminal proceedings is necessitated by the need for an objective and impartial resolution of a criminal case, with the full exercise of the legal capacity (powers) of each of them. In the course of criminal proceedings, the parties independently and separately from the court, other bodies and persons choose their position, as well as the methods and means of defending it. At the request of a party, the court assists it in obtaining the necessary materials in accordance with the procedure provided for by the CPC (Part 8 of Article 23, Articles 56, 70 of the CPC). Truth is born in debate.
• The CPC determines the competence of each principal body of inquiry and preliminary investigation with regard to the investigation of criminal cases. The investigative jurisdiction (subparagraph 46 of Article 7 of the CPC), which determines the competence of a particular preliminary investigation body in the sphere of pre-trial criminal proceedings, is one of the conceptual general conditions for conducting a preliminary investigation and has important practical significance. It eliminates duplication in the work of preliminary investigation bodies and disputes over the investigative jurisdiction of a criminal case. The following types of investigative jurisdiction of criminal cases are distinguished: territorial (depends on the place where the criminal offence was committed) (Article 188 of the CPC); subject-matter (depends on the classification of the criminal offence and is closely related to territorial jurisdiction) (Articles 187, 191 of the CPC); subject-matter and purpose-based (depends on the existence of the relevant element of the objective side of the corpus delicti) (Part 4-1 of Article 187 of the CPC); personal (depends on the subject of the criminal offence) (Part 3 of Article 189, Article 510, Articles 547–551 of the CPC); alternative (the body that identifies the offence and commences the pre-trial investigation is the one that conducts the investigation) (Parts 4–7 of Article 187, Parts 8–11 of Article 191 of the CPC); jurisdiction based on the connection between cases (requires the investigation of all other cases arising in the course of investigating the principal case) (Part 3 of Article 187); mixed (where different types of investigative jurisdiction apply to a criminal case, the jurisdiction is determined by the prosecutor) (Part 8 of Article 187, paragraph 12 of Part 1 of Article 193 of the CPC).
• A judicial investigating judge is also included among the judges of a court of first instance (subparagraph 47 of Article 7 of the CPC; see the commentary to subparagraph 42 of Article 7 of the CPC). A judicial investigating judge (judges) is appointed from among the judges by the chairperson of the court of first instance. If it becomes necessary to replace a judicial investigating judge, another judge may be appointed. A judicial investigating judge does not perform the functions of a judge of a court of first instance in criminal cases in which he or she participated as a judicial investigating judge. His or her competence is limited exclusively to exercising judicial control over the observance of the rights, freedoms and legitimate interests of persons during the pre-trial investigation of a criminal case (Part 3 of Article 54, Articles 55–56, paragraph 2 of Part 1 of Article 87 of the CPC). Judicial investigating judges are also members of the investigating courts established in the regional centres of Kazakhstan and of the specialised inter-district investigating courts of the cities of Astana and Almaty. It should be borne in mind that, pursuant to Decree of the President of the Republic of Kazakhstan No. 702 dated 19 June 2018 “On Certain Issues of the Administrative-Territorial Structure of the Republic of Kazakhstan”, the city of Shymkent was classified as a city of republican significance (paragraph 1), while South Kazakhstan Region was renamed Turkestan Region (paragraph 3), with its administrative centre transferred from the city of Shymkent to the city of Turkestan (paragraph 2).
• Judging by the provisions of the CPC, the powers of judicial investigating judges of district and equivalent courts differ substantially from those of judicial investigating judges of the relevant specialised investigating courts (see subparagraph 9 of Article 7 of the CPC).
• Among the general conditions of the main court hearing, special provisions are established that regulate the powers of the presiding judge during the main court hearing (Articles 334, 345, 346, 347, 350–386, 402 of the CPC) (subparagraph 48 of Article 7 of the CPC). The powers of the presiding judge in the appellate court are established by Article 429 of the CPC, and in the cassation court by Article 494 of the CPC. When a criminal case is considered by a panel of judges, the chairperson of the court, the chairperson of the court panel, or one of the judges authorised to do so in accordance with the procedure prescribed by the CPC presides over the hearing. A judge who considers a case individually is deemed to be the presiding judge (Part 1 of Article 54, Article 334 of the CPC).
• Under the Constitution, the home (subparagraph 49 of Article 7 of the CPC) is inviolable. Entry into a home, its inspection and search are permitted only in the cases and in accordance with the procedure established by law (paragraph 1 of Article 25). This constitutional provision has become one of the key principles of criminal procedure (Article 17 of the CPC). The procedural form of inspection, covert entry into and/or examination of, and search of residential premises is regulated by Articles 220, 224, 247, 254, 256 of the CPC. Unlike the Law “On Housing Relations” dated 16 April 1997 (paragraph 28 of Article 2), subparagraph 49 of Article 7 of the CPC defines the concept of “home” much more broadly. This is consistent with the constitutional provisions on equality before the law, excludes discrimination and arbitrariness on the part of criminal prosecution bodies when making decisions on conducting inspections and searches of premises on the grounds of place of residence (domicile), and is also dictated by the legislator’s heightened concern for protecting the rights and legitimate interests of individuals and citizens in criminal proceedings (Article 14 of the Constitution, Article 21 of the CPC).
• In certain cases, relatives of a particular participant in the proceedings may be involved in criminal proceedings in the interests of the parties (subparagraph 50 of Article 7 of the CPC). For example, in the event of the death of a person who was subjected to unlawful criminal prosecution, his or her relatives are entitled, where there are grounds, to demand from the relevant mass media, as well as from the body conducting the criminal proceedings, the elimination of the consequences of moral harm (Article 41 of the CPC). A notification explaining the procedure for compensation for harm caused by unlawful actions of the body conducting the criminal proceedings may also be sent to the relatives of a deceased person who is entitled to compensation for damage (Part 1 of Article 39 of the CPC). Information, objects and documents that may become evidence in a criminal case may also be submitted by relatives of a particular participant in the criminal proceedings (Part 4 of Article 122 of the CPC). Relatives of a suspect or accused, provided that they are trustworthy and have submitted a corresponding application, may act as guarantors when personal surety is applied as a preventive measure (Article 142 of the CPC). Supervision over a minor suspect or accused may be entrusted to his or her relatives who are trustworthy and have submitted an application to that effect (Article 144 of the CPC). Bail as a preventive measure may be deposited by a relative of the suspect on his or her behalf (Article 145 of the CPC). When property is seized, it may be transferred to the relatives of the suspect or accused for safekeeping (Article 163 of the CPC). Statements by citizens concerning a criminal offence may also originate from relatives of the victim of the criminal offence (Article 181 of the CPC), etc.
• The expression “night-time” (subparagraph 51 of Article 7 of the CPC), meaning the period from twenty-two hundred hours to six hundred hours local time, also corresponds to the concept of “night-time” regulated by the Labour Code dated 23 November 2015 (paragraph 1 of Article 76), and generally means a prohibition on conducting investigative actions at night (Part 2 of Article 197 of the CPC). In general, the purpose of most investigative actions excludes their performance at night. However, in the course of criminal proceedings, circumstances may arise that necessitate the urgent performance of investigative actions at night, for example, where a criminal offence is committed at night; conducting a search or seizure at night in order to prevent the destruction of objects or documents relevant to the case, etc. This depends on the investigative situation developing during the proceedings. In certain cases, the CPC permits investigative actions to be conducted at night. For example, pursuant to Part 2 of Article 209 of the CPC, questioning of a victim, witness or suspect is conducted during the daytime, except in cases that cannot be delayed. This rule does not apply when a minor is being questioned. Questioning of a minor is permitted only during the daytime in all cases (Part 2 of Article 535 of the CPC).
• As a rule, the principal outcome of the main court hearing and the procedural activities of the court of first instance is its judgment (subparagraph 52 of Article 7 of the CPC), which may be a conviction (on five grounds) or an acquittal (on three grounds) (Articles 392–394 of the CPC). Decisions adopted by the appellate judicial instance to quash a judgment issued by a court of first instance are initially formalised in a ruling and subsequently by the issuance of an appellate judgment of that court (Article 431, Part 7 of Article 443 of the CPC). Unlike a ruling of the appellate court, which is announced in the courtroom (Part 3 of Article 444 of the CPC), judgments of the courts of first and appellate instances are pronounced (Part 1 of Article 402 of the CPC), and all persons present in the courtroom, including the judges, listen to the judgment while standing.
• Subparagraph 53 of Article 7 of the CPC was excluded by Law of the Republic of Kazakhstan No. 248-V dated 7 November 2014 (enters into force on 1 January 2015).
• A record (subparagraph 54 of Article 7 of the CPC), as a procedural document, records the fact, course and results of procedural actions (including investigative and judicial actions) that took place in a criminal case. For example, the record of accepting an oral statement concerning a committed criminal offence (Part 2 of Article 181 of the CPC), the record of accepting an oral statement of voluntary surrender (Part 2 of Article 182 of the CPC), and the record of an investigative action (Article 199 of the CPC). Particular attention should be paid to the record (including the abbreviated record) of the main court hearing, which records all judicial decisions and judicial actions in the criminal case under consideration (Articles 347, 347-1 of the CPC), etc. Every record consists of an introductory, descriptive and concluding part, which make it possible to assess the legality and validity of the procedural actions performed and the procedural decisions adopted.
• The term “complaint” (subparagraph 55 of Article 7 of the CPC) in criminal proceedings is understood as an act of response (a demand) by a participant in criminal proceedings for the restoration or protection of the violated rights, freedoms or legitimate interests of a participant in criminal proceedings, for the elimination of unlawful actions or omissions by bodies (officials) conducting criminal proceedings, as well as for the annulment of their unlawful procedural decisions. Decisions and actions of a person conducting a pre-trial investigation, a prosecutor, a court or a judge may be appealed in accordance with the procedure established by the CPC by participants in the proceedings, as well as by individuals and legal entities if the procedural actions being conducted affect their interests (Part 1 of Article 100 of the CPC). Complaints against the actions and decisions of an inquirer, an inquiry body, an investigator, a prosecutor, a judge or a court may be submitted throughout the entire pre-trial investigation and court proceedings. Complaints against a decision to terminate a criminal case at the pre-trial stage may be submitted within one year from the date of issuance of the relevant resolution by the criminal prosecution body or its approval by the prosecutor. Complaints against judicial acts issued by courts of first, appellate or cassation instances shall be submitted within the time limits established by the CPC (Article 102 of the CPC).
• Search measures (activities), search (subparagraph 56 of Article 7 of the CPC) constitute a system of organisational, procedural and operational-search measures aimed at establishing the whereabouts of persons who have absconded from investigation, inquiry or court, who evade criminal liability, serving a sentence or probation supervision, persons who have gone missing, and other persons in cases provided for by law, as well as lost documents and items containing information constituting state secrets, as established by paragraph 24 of Article 1 of the Law of the Republic of Kazakhstan “On Operational-Search Activities”. Let us explain this with the following example. Thus, in the event of the unlawful taking of a motor vehicle, the internal affairs bodies carry out a set of search measures ranging from the activation of special plans involving the use of all forces and resources of the law enforcement agency to search for the vehicle and conduct the investigation, to the active use of general and special operational-search methods in this process.
• Proceedings in a case (subparagraph 57 of Article 7 of the CPC) include the activities of the body conducting criminal proceedings in a criminal case at all stages of its progress, both during the pre-trial investigation and before the judicial instances. Consequently, the concept of “proceedings in a case” is broader than the concept of “pre-trial proceedings in a criminal case”, which begins with the registration of an application or report concerning a criminal offence in the Unified Register of Pre-Trial Investigations or the performance of the first urgent investigative action, and in cases involving preliminary investigation and inquiry concludes with the commitment of the accused for trial and the forwarding of the criminal case to the court having jurisdiction over it (Part 1 of Article 179, Part 1 of Article 305 of the CPC; see also the explanation of this concept in subparagraph 41 of Article 7 of the CPC).
• The term “extradition arrest” (subparagraph 58 of Article 7 of the CPC) means an institution of criminal procedure whose application is provided for both by the provisions of the CPC (Article 589) and by international treaties of the Republic of Kazakhstan concerning legal and other assistance in criminal cases, as well as the extradition of persons who have committed crimes. This arrest constitutes part of the process of extraditing (surrendering) a person who has committed a crime by Kazakhstan to another state or by another state to Kazakhstan for the purpose of conducting criminal prosecution, judicial proceedings or enforcing a judgment. The application of extradition (provisional) arrest may form part of a general international treaty on legal assistance in criminal cases and extradition of persons, or may be the subject of a separate treaty with a specific foreign state dealing exclusively with the extradition of a person.

Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishuly 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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