Commentary on Article 70. Powers of the Defence Counsel of the Criminal Procedure Code of the Republic of Kazakhstan

1. The defence counsel shall use all lawful means and methods of defence in order to identify circumstances that refute the suspicion or accusation or mitigate the liability of the suspect or accused, and shall provide them with the necessary qualified legal assistance.

2. The defence counsel shall have the right to:

1) have private and confidential meetings with the suspect or accused without any restrictions on their number or duration;

2) collect and submit, in accordance with the procedure established by this Code, items, documents, information, as well as other data necessary for the provision of legal assistance, which shall be subject to mandatory inclusion in the materials of the criminal case;

3) participate in the questioning of the suspect or accused, as well as in other investigative and procedural actions, including inspections, searches and seizures, carried out with their participation or at their request or at the request of the defence counsel himself;

4) file motions for disqualification;

5) examine the record of detention, the resolution on the application of a preventive measure and the extension of the period of detention, house arrest, the notification of the suspension of time limits in the case, and the records of investigative actions conducted with the participation of the suspect or the defence counsel himself, which were presented or should have been presented to the suspect or accused, and, upon completion of the pre-trial investigation, examine all the case materials, make extracts from them containing any information in any amount, make copies using scientific and technical means, except for information constituting state secrets and the list of prosecution witnesses, and be present when the resolution recognising a person as a suspect and the resolution on the qualification of the suspect's act are announced to the suspect;

6) file motions, including motions for the adoption of security measures;

7) participate in the preliminary hearing of the case and in court proceedings before a court of any instance, make submissions during court debates, participate in court hearings when a case is reopened on newly discovered circumstances, when a motion for authorisation of a preventive measure is considered by the court, when a motion for extension of the period of detention or house arrest is considered, when complaints and motions of the defence are considered by an investigating judge, and when testimony is preserved;

8) examine the minutes of the court hearing, while having the right to place their signatures at the end of the minutes and, when examining part of the minutes of the court hearing, to place their signatures at the end of that part, and submit comments thereon;

9) receive copies of procedural documents that are to be served on the defence counsel and the person under their defence;

*10) object to unlawful actions (inaction) of the person conducting the criminal proceedings and other persons participating in the criminal proceedings, and demand that such objections be entered into procedural documents;

file complaints against the actions (inaction) and decisions of the person conducting the inquiry, the investigator, the prosecutor and the court, and participate in their consideration;*

11) use any other means and methods of defence that do not contradict the law;

12) be notified in advance by the body conducting the criminal proceedings of the time and place of procedural actions involving the person under their defence, as well as of all court hearings related to the consideration of complaints filed by the defence, motions for the application of a preventive measure, extension of the period of detention, and preservation of testimony.

3. A lawyer participating in a case as defence counsel shall, in addition to the rights provided for in part two of this Article, also have the right to:

1) file a motion before the investigating judge for the preservation of testimony of a witness and a victim;

2) file a motion before the investigating judge for the retrieval of any information, documents or items necessary for the provision of qualified legal assistance and the protection of the interests of a suspect, accused or witness entitled to defence, with the exception of information constituting state secrets, in cases where the request has been refused or no decision has been made on it within three days;

3) file a motion before the investigating judge for the appointment of an expert examination or the conduct of an investigative action by the pre-trial investigation body, with the exception of a covert investigative action, including where the criminal prosecution body has unreasonably refused to grant such a motion or has failed to make a decision on it within three days;

4) interview persons who may possess information concerning the circumstances of the case, including through the use of scientific and technical means, and file a motion for the inclusion of factual data obtained in this manner in the case materials;

5) obtain, on a contractual basis, opinions of an expert or specialist in the case and file a motion for the inclusion of such opinions in the case materials;

6) file a motion before the investigating judge for the compulsory appearance before the body conducting the criminal proceedings of a witness previously interviewed by the defence counsel, whose appearance for giving testimony is difficult to secure.

4. A defence counsel participating in an investigative action shall have the right to ask questions to persons being questioned after the questioning by the person conducting the pre-trial investigation has been completed. The person conducting the pre-trial investigation may reject questions asked by the defence counsel but shall be obliged to enter all questions asked into the record. In the record of the investigative action, the defence counsel shall have the right to make written comments regarding the accuracy and completeness of its recording.

5. The defence counsel shall not have the right to: perform any actions contrary to the interests of the person under their defence or obstruct the exercise of rights belonging to that person; contrary to the position of the person under their defence, admit their involvement in a criminal offence and guilt in its commission, or declare that the person under their defence has reconciled with the victim; admit a civil claim; withdraw complaints and motions submitted by the person under their defence; disclose information that became known to them in connection with the application for legal assistance and the provision thereof.

6. The defence counsel shall also have other rights and bear other duties provided for by this Code.

Footnote. Article 70 was amended by the Laws of the Republic of Kazakhstan dated 31 October 2015 No. 378-V (put into effect on 1 January 2016); and dated 21 December 2017 No. 118-VI (put into effect upon the expiration of ten calendar days after the date of its first official publication).

The title of Article 70 of the CPC, “Powers of the Defence Counsel”, clearly distinguishes the defence counsel from among other participants in criminal proceedings who do not belong to the bodies conducting criminal proceedings. This circumstance places responsibility for the fate of the person under their defence on the defence counsel and imposes an obligation to make maximum use of the potential of the current legislation of the Republic of Kazakhstan in terms of providing effective defence in a criminal case against the suspicion or accusation brought forward. It is precisely the defence counsel's profound and accurate knowledge of the provisions of the current legislation of the Republic of Kazakhstan that the law associates with the provision of qualified legal assistance in the case (Part 1 of Article 70 of the CPC).

The powers of the defence counsel are, first and foremost, their rights, without which they are unable to perform the function of defending against the suspicion or accusation brought against the person under their defence. In general terms, the rights of the defence counsel are addressed in Part 2 of Article 70 of the CPC, which should be examined in detail, subject to one important reservation. Part 2 of Article 70 of the CPC sets out the rights of a defence counsel in general, whereas Part 3 of the Article provides additional rights specifically for a lawyer. This is the fundamental distinction between them and, accordingly, between the rights of a defence counsel in general and those of a lawyer in particular.

Thus, the rule set out in subparagraph 1) of Part 2 of Article 70 of the CPC begins to apply from the moment the figure of a suspect or accused first appears in a criminal case. We have examined these issues in our commentary on Part 1 of Article 64, subparagraph 5) of Part 9 of Article 64, and Parts 1 and 5 of Article 65 of the CPC.

The rules of subparagraph 2) of Part 2 of Article 70 of the CPC are governed by Part 3 of Article 122 of the CPC: a defence counsel and a representative of the victim admitted to participate in a pre-trial investigation or court proceedings shall have the right, subject to compliance with the procedure established by the legislative acts of the Republic of Kazakhstan concerning the non-disclosure of information constituting commercial and other legally protected secrets, to obtain information necessary for the exercise of the defence and the representation of the victim's interests by means of:

requesting certificates, references and other documents from legal entities. Certificates, references and other documents may be requested by the defence counsel or the representative of the victim from state bodies, public associations, as well as other legal entities. The said persons shall be obliged to provide the defence counsel or the representative of the victim with the requested documents or certified copies thereof within ten days. When considering the issue of authorisation of a preventive measure in the form of detention, the requested certificates, references and other documents shall be provided to the defence counsel within twenty-four hours;

initiating the conduct of a forensic examination on a contractual basis;

sending a request to an expert institution to conduct the relevant examination on a contractual basis;

engaging a specialist on a contractual basis;

interviewing, with their consent, persons presumed to possess information relevant to the criminal case, including through the use of scientific and technical means.

In addition, the defence counsel shall have the right to submit items and documents in accordance with the rules of Article 259 of the CPC: the parties, as well as other persons, heads and other officials of enterprises, institutions and organisations shall have the right to provide the person conducting the pre-trial investigation with items and documents which, in their opinion, may be relevant to the case. The person conducting the pre-trial investigation shall be obliged to inspect the item or document provided and accept it if there are grounds to believe that the item or document is or may subsequently become relevant to the case. Items and documents that are not relevant to the case but have been withdrawn from circulation shall also be accepted. Where an item or document that is not relevant to the case and has not been withdrawn from circulation is provided, the person conducting the pre-trial investigation shall immediately return the item or document to its owner after inspection.

The rules of subparagraph 3) of Part 2 of Article 70 of the CPC imply the mandatory participation of the defence counsel in all procedural or investigative actions involving the person under their defence, regardless of the grounds for conducting such actions, since these actions are intrinsically connected with the process of proving the elements of a criminal offence and the guilt of the subject of the criminal offence. Consequently, failure to participate in such actions would result in a substantial violation of the procedure for conducting the procedural action and the recognition of the factual data obtained as inadmissible evidence (subparagraph 5) of Part 1 of Article 112 of the CPC).

In this regard, the law draws the attention of the bodies conducting criminal proceedings to the exercise of this right by the defence counsel, particularly during the questioning of the person under their defence, as well as during inspections, searches and seizures conducted with the participation of the suspect or accused, or at their request or at the request of the defence counsel himself.

The rule set out in subparagraph 4) of Part 2 of Article 70 of the CPC concerns the broad range of persons against whom the defence counsel may file motions for disqualification if there are grounds to believe that they have a personal, direct or indirect interest in the outcome of the case (Articles 86–93 of the CPC).

The rules of subparagraph 5) of Part 2 of Article 70 of the CPC, subject to the exceptions specified therein, define a group of important procedural documents that substantially restrict the rights of the suspect or otherwise affect their interests, which the defence counsel is entitled to examine during the pre-trial investigation and upon its completion. The extraction of information and the making of copies of case documents containing state secrets are prohibited. In the interests of the case, the defence counsel is not permitted to access the list of prosecution witnesses for examination. Moreover, the law specifically emphasises the mandatory presence of the defence counsel when the resolution recognising a person as a suspect and the resolution on the qualification of the suspect's act are announced to the suspect. This is understandable, since, in addition to the explanations provided by the body conducting the criminal proceedings, the suspect may also require an explanation of the suspicion from the defence counsel.

The rules of subparagraph 6) of Part 1 of Article 70 of the CPC are governed by Articles 95–99 of the CPC. Like any participant in criminal proceedings, the defence counsel is under the protection of the state during proceedings in the case and, where grounds exist, security measures may be adopted in respect of the defence counsel upon their motion. Motions concerning a broad range of issues relating to the criminal case may be submitted at the initiative of the person under defence or may be initiated by the defence counsel himself, and they should be regarded as an important method of their work in relations with the bodies conducting criminal proceedings.

The rules of subparagraph 7) of Part 2 of Article 70 of the CPC contain a set of rights exercised by the defence counsel primarily before judicial instances, as well as in their interactions with the investigating judge when considering issues falling within the latter's competence, arising in connection with the criminal case and substantially restricting the rights of the person under defence. The law separately emphasises the mandatory participation of a lawyer when the investigating judge, at the lawyer's request, preserves the testimony of a witness or victim in accordance with the procedure set out in Article 217 of the CPC.

The rules of subparagraph 8) of Part 2 of Article 70 of the CPC enable the defence counsel to assess the entire course, content and results of the court hearing on the basis of examining the minutes of the court hearing, which record all judicial actions performed during the court hearing. The form and content of these minutes, as well as comments thereon and the procedure for their consideration, are regulated in detail by law (Article 347 and Part 8 of Article 429 of the CPC).

The rules of subparagraph 9) of Part 2 of Article 70 of the CPC must be understood in conjunction with the similar rights of persons under defence to receive copies of the principal procedural documents affecting their interests, the list of which is provided in subparagraph 7) of Part 9 of Article 64, subparagraph 2) of Part 5 of Article 65, and other articles of the CPC governing the legal status of an accused, defendant, convicted person and acquitted person.

The provisions of paragraphs 10 and 11 of part 2 of Article 70 of the CPC concern two further methods of a defence counsel’s work in a criminal case: submitting reasoned objections to unlawful actions of the body conducting the criminal proceedings and other participants therein, with such objections being recorded in procedural documents; and filing reasoned written complaints against unlawful actions and decisions of the body conducting the criminal proceedings, where grounds exist, with the prosecutor, a superior prosecutor, the investigating judge, or the court of the appropriate instance, and participating in their consideration.

The provisions of paragraph 12 of part 2 of Article 70 of the CPC must be understood in conjunction with the provision of part 6 of Article 70 of the CPC, which allows defence counsel to use the entire range of applicable legislation of the Republic of Kazakhstan in their activities. This is entirely understandable, since the defence function must not be restricted in the lawful means and methods of defence used to establish the circumstances of a criminal case for the purpose of ensuring that the criminal case is properly resolved.

The provisions of paragraph 13 of part 2 of Article 70 of the CPC constitute the legislator’s response to the need to exclude any instances of unlawful restriction by bodies conducting criminal proceedings of the defence counsel’s right to participate in all procedural actions involving their client or in all court hearings concerning issues related to complaints and motions submitted by the defence, particularly issues involving the application of preventive measures, extensions of detention periods, and the deposition of testimony by witnesses and victims. Therefore, the mandatory participation of defence counsel in proceedings in a case, as well as in procedural or investigative actions involving their client, is clearly stipulated by the provisions of the CPC.

Alongside the general rights of defence counsel, the specific rights of an advocate are separately set out. These supplement the rights of defence counsel but may be exercised exclusively by an advocate. There are six such key rights.

The provision of paragraph 1 of part 3 of Article 70 of the CPC enables an advocate to ensure the collection of evidence in a criminal case by submitting motions to the investigating judge for the deposition of testimony by a witness or victim in the case. An advocate may resort to this procedure in circumstances where, according to the information available to them, subsequent questioning of such persons during pre-trial investigation or at a court hearing may prove impossible for objective reasons (permanent residence outside the Republic of Kazakhstan, departure abroad, serious health condition, or the application of security measures), as well as for the purpose of excluding subsequent questioning of juvenile witnesses and victims in order to prevent psychological trauma (part 1 of Article 217 of the CPC).

The provisions of paragraphs 2 and 3 of part 3 of Article 70 of the CPC arise from the failure of criminal prosecution authorities to respond appropriately to an advocate’s motion concerning the collection of evidence in a case, including through the appointment of a forensic examination, thereby compelling the advocate to submit a similar motion to the investigating judge. Failure by criminal prosecution authorities to comply with an advocate’s motion may take the form of either refusing to grant it by issuing a ruling or failing to make a decision on it within three days. This right of the advocate corresponds to the obligation of the investigating judge to consider the motion on its merits and make a decision (paragraphs 6 and 7 of part 2 of Article 55, part 6 of Article 272 of the CPC).

Before considering the advocate’s motion, the investigating judge must establish that the advocate previously submitted a motion to the criminal prosecution authority. In general, following consideration of the advocate’s motions on the issues specified in paragraphs 2–3 of part 3 of Article 70 of the CPC, the investigating judge is also entitled, where grounds exist, to grant them by exercising their own powers or to instruct the criminal prosecution authority to carry out the relevant procedural actions, as necessary for the advocate to provide qualified legal assistance and protect the interests of their client, and to monitor the proper execution of such instructions (paragraphs 6–7 of part 2 of Article 55, part 4 of Article 56 of the CPC).

The investigating judge may issue similar instructions to the criminal prosecution authority where it is necessary to comply with the provision of paragraph 6 of part 3 of Article 70.

The provision of paragraph 4 of part 3 of Article 70 of the CPC demonstrates another aspect of an advocate’s activities in a case, namely, conducting interviews with individuals for the purpose of obtaining information relevant to the case. It should be noted that the CPC does not establish the procedural form for an advocate’s interview of a particular person, that is, the conditions, grounds, sequence of conducting the interview, or the procedure for documenting it: whether an explanation is obtained, an oral statement is made, or a memorandum or report is drawn up (pursuant to paragraph 5 of part 3 of Article 122 of the CPC, the course and results of an interview are recorded in writing or on an electronic medium and, upon a motion by defence counsel or the representative of the victim, are subject to inclusion in the criminal case file, acquiring the status of evidence after being examined and evaluated by the body conducting the criminal proceedings in accordance with the requirements of the CPC). It appears that there is no need for this, since the information obtained during the interview is subsequently transformed into the testimony of that person during their questioning, conducted at the request of the advocate by the body conducting the criminal proceedings or by the investigating judge through the deposition of their testimony in accordance with the rules governing the questioning of a witness. Such a document may, for example, be a memorandum concerning the oral interview of a person. In order to record the interview data, an advocate is permitted (presumably with the consent of the person being interviewed) to use audio and video recording, cinematography, photography, the production of casts, impressions, plans, diagrams, and other methods of recording information, which are attached to the memorandum concerning the oral interview of the person. Each attachment should bear an explanatory inscription indicating its title, the place, date, and time of the interview. This inscription must be certified by the advocate’s signature.

The provisions of paragraph 5 of part 3 of Article 70 of the CPC (see also the procedural form for their implementation in parts 7, 8, and 11 of Article 272 of the CPC) permit an advocate, bypassing the body conducting the criminal proceedings (there is no need to request the research objects from that body), but with mandatory notification thereof, to directly commission a forensic examination or study on a paid contractual basis and obtain the relevant opinions of an expert or specialist, as well as submit a motion for their inclusion in the materials of the criminal case. In all cases, the opinions must be included in the materials of the criminal case by the body conducting the criminal proceedings; pursuant to part 2 of Article 111 of the CPC, they constitute sources of evidence in the criminal case. Their examination in court is carried out in accordance with the rules governing the evaluation of evidence (Articles 124–125).

The provisions of paragraph 6 of part 3 of Article 70 of the CPC correspond to the provision of paragraph 4 of part 3 of Article 70 of the CPC and constitute a form of finalization of the results of an interview conducted by an advocate with a person, but now in that person’s capacity as a witness. For this purpose, an advocate is entitled to seek the assistance of the investigating judge where the person previously interviewed by the advocate evades or where other problems arise in ensuring that such person appears before the criminal prosecution authorities to give testimony, or, where grounds exist, to submit a motion to the investigating judge for the deposition of the witness’s testimony with the advocate’s participation.

The provisions of part 4 of Article 70 of the CPC specify the procedure for questioning a person in one or another procedural capacity with the participation of defence counsel. This also manifests the rights of defence counsel: asking questions after the interrogator or investigator has completed the questioning; ensuring that their questions are mandatorily recorded in the interrogation record, even if they are rejected; and making comments concerning the quality of the description in the record of the course, content, and results of the questioning, with such comments being included in the interrogation record. These provisions, using the example of questioning conducted with the participation of defence counsel, develop the general rules governing investigative actions, records of investigative actions, and the requirements for their preparation (Article 197, parts 3 and 6 of Article 199 of the CPC).

While granting rights to defence counsel, the law simultaneously imposes certain obligations on them, which support the focus of their activities on establishing the truth in a criminal case. Thus, for the advocate to perform the defence function fully, the Law “On Advocacy and Legal Assistance” grants the advocate an appropriate scope of rights and also regulates the obligations, professional standards of conduct, guarantees of advocacy activities, and insurance of an advocate’s activities, which the advocate must observe in the course of their professional activities (Articles 33–37).

The Law places particular emphasis on advocate-client privilege, defining it as the fact that a person has approached an advocate, information concerning the content of oral and written communications with the person seeking assistance and other persons, the nature and results of actions undertaken in the interests of the person seeking assistance, as well as other information relating to the provision of legal assistance. Advocates, their assistants and trainees, employees of the Presidium of the Bar Association, legal consultation offices, and law offices, as well as persons whose right to engage in advocacy has been terminated or suspended, are not entitled to disclose or use for their own benefit or for the benefit of third parties any information obtained in connection with the provision of legal assistance. An advocate who discloses information constituting advocate-client privilege without the consent of the person who sought assistance shall be held liable in accordance with the law. The provision of information and data to the authorized financial monitoring body in accordance with the Law of the Republic of Kazakhstan “On Counteracting the Legalization (Laundering) of Proceeds of Crime and the Financing of Terrorism” does not constitute disclosure of advocate-client privilege. The obligation to preserve advocate-client privilege is not limited in time. Advocates, their assistants, trainees, employees of the Presidium of the Bar Association, legal consultation offices, and law offices are obliged to take the necessary measures to preserve advocate-client privilege, including protecting it against unauthorized access (Article 37 of the Law “On Advocacy and Legal Assistance”).

The scope of powers established for defence counsel in general and advocates in particular is not limited to the foregoing: during criminal proceedings, other issues of varying degrees of complexity may arise that require their participation, the exercise of their powers, or the performance of certain duties (part 6 of Article 70 of the CPC). This is consistent with the nature and methods of their activities in criminal proceedings.

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

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