Commentary on Article 75. Legal Representatives of a Minor Suspect, Accused Person, Defendant, or Convicted Person of the Criminal Procedure Code of the Republic of Kazakhstan

• 1. In criminal offences committed by a minor or by a person suffering from mental disorders that do not exclude criminal responsibility, their legal representatives shall be involved in the proceedings in accordance with the procedure established by this Code.
• 2. Where pre-trial proceedings or court proceedings, in the cases provided for by this Code, are conducted in the absence of the suspect, accused person, defendant, or convicted person, their legal representatives may participate in the criminal case.

The term “legal representatives” is established in subparagraph 13) of Article 7 of the CPC, according to which: “Legal representatives are the parents (parent), adoptive parents, guardians, trustees of a suspect, accused person, victim, or civil claimant, as well as representatives of organizations and persons under whose care or maintenance the suspect, accused person, or victim is placed.” Based on the title of the article, the legal representative of a minor suspect, accused person, defendant, or convicted person is a participant in all stages of criminal proceedings and belongs to the defence party (subparagraphs 13), 18), and 25) of Article 7 of the CPC). Their participation in a criminal case supplements the capabilities of the bodies conducting criminal proceedings in ensuring the principle of a comprehensive, complete, and objective examination of the circumstances of the criminal case, imposing criminal punishment corresponding to the gravity of the criminal offence and the personality of the minor defendant, and carrying out effective preventive work in the criminal case. For example, pursuant to paragraph 2) of part 2 of Article 542 of the CPC, the legal representatives of a minor defendant participate in the court's consideration of the case, are present throughout the entire trial, enjoy all the rights vested in them and, with their consent, may be examined as witnesses regarding the circumstances of the minor's lifestyle and upbringing; if the legal representative participating in the case is unable to appear, they may be replaced by another person. The subject matter of proof in cases involving minors and the court's right to respond to circumstances identified in the case that contributed to the commission of a criminal offence by a minor by issuing an appropriate separate ruling require this (part 4 of Article 53, paragraph 2) of Article 531 of the CPC).

Within the meaning of part 1 of Article 75 of the CPC, a legal representative is intended to represent the interests not only of a minor who is the subject of a criminal offence. Their scope of interests also includes representing the interests of a person suffering from mental illnesses that do not exclude criminal responsibility. However, let us consider everything in order.

According to the law, where the minor suspect or accused person has parents or other legal representatives, their participation in the case is mandatory. One or both parents of the minor may act as legal representatives. Parents and other close relatives participating in the case as defence counsel may not simultaneously participate as legal representatives of the minor. In their absence, the participation of a representative of the guardianship and trusteeship authority is mandatory (part 1 of Article 537 of the CPC). As a rule, the starting point (in the formal legal sense) for the participation of a legal representative in the case is the moment when the persons listed in the title of this article appear in the criminal case, that is, acquire procedural status in it. In fact, they are introduced into the case from the beginning of the pre-trial investigation, once the person who committed the criminal offence acquires the relevant procedural status, and remain involved in the case until the proceedings are completed (Article 46 of the CPC), unless they are replaced or removed from participation in the case for objective reasons.

The admission of a legal representative to the criminal case (from the moment of the first questioning of the minor suspect) and their removal from participation in the case shall be formalized by reasoned resolutions of the investigator. The facts of kinship, guardianship and trusteeship, and being maintained by another person must be confirmed by submitting the relevant documents. The body conducting criminal proceedings has the right to involve the legal representative, for the purpose of exercising their procedural rights, in all procedural actions carried out with the participation of the minor suspect. The legal representative shall be present in the courtroom throughout the entire trial. The court is obliged to explain their rights provided for in part three of Article 537 and paragraph 2) of part two of Article 542 of the CPC during the preparatory part of the main court hearing (paragraph 8 of Regulatory Resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 11 April 2002 “On Judicial Practice in Cases Involving Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Anti-Social Acts”).

A legal representative may be removed from participation in the case if there are grounds to believe that their actions harm the interests of the minor or are aimed at obstructing an objective investigation of the case, or upon the legal representative's request. The person conducting the pre-trial investigation shall issue a reasoned resolution to this effect. Another legal representative of the minor may be admitted to participate in the case (part 5 of Article 537 of the CPC).

In order to exercise their procedural rights during all procedural actions carried out with the participation of a minor suspect, accused person, defendant, or convicted person, the legal representative is vested with a set of rights, including the right to know what the minor is suspected of; to be present when reviewing resolutions recognizing the person as a suspect and qualifying the suspect's act, as well as the indictment approved by the prosecutor; to participate in the questioning of the minor; and, with the permission of the person conducting the pre-trial proceedings, to participate in other investigative actions conducted with the participation of the minor suspect and their defence counsel, etc. (part 3 of Article 537 of the CPC). Moreover, a minor defendant, with the participation of their legal representative and lawyer, has the right to reconcile with the victim, including through mediation, as well as to conclude a procedural agreement with the prosecutor (part 3 of Article 542 of the CPC).

In explaining the provisions of part 2 of Article 75 of the CPC, it should be noted that the subject of a criminal offence may, for various reasons, fail to participate in the proceedings (due to illness, evasion, etc.). Therefore, their legal representative, who has been admitted to participate in the case, is entitled to be present during the pre-trial investigation or the trial before the relevant court instance and to protect the rights of such minor. For example, this is possible in cases where proceedings are conducted in the absence of the defendant: 1) where the defendant, accused of committing a criminal misdemeanour or a crime of minor or medium gravity, requests that the case be considered in their absence; 2) where the defendant is outside the Republic of Kazakhstan and evades appearing before the court; 3) where a defendant held in custody refuses to appear and participate in the court hearing (part 2 of Article 335 of the CPC), or where compulsory medical measures are applied to a person, etc.

The legal representative of a person suffering from mental disorders that do not exclude criminal responsibility has the right to represent the interests of that person during pre-trial proceedings and court proceedings in cases concerning the application of compulsory medical measures. Under current law, compulsory medical measures may also be imposed by a court on persons who have committed a criminal offence and suffer from mental disorders that do not exclude criminal responsibility. Compulsory medical measures shall be imposed only in cases where the mental disorders are associated with the possibility that such persons may cause other substantial harm or pose a danger to themselves or others (paragraph 3) of part 1 of Article 91 of the Criminal Code, Article 26 of the Penal Enforcement Code, part 1 of Article 121 of the Code of the Republic of Kazakhstan dated 18 September 2009 “On Public Health and the Healthcare System”). Therefore, within the meaning of the provisions of part 1 of Article 75 of the CPC, the rights of a legal representative extend to the category of persons suffering from mental disorders that do not exclude criminal responsibility, to whom compulsory medical measures may be applied and who, consequently, require protection of their rights with the participation of a legal representative.

Legal representatives of victims who are summoned to the bodies conducting criminal proceedings to give testimony, participate in investigative actions, and take part in court proceedings are entitled to reimbursement of expenses incurred by them in connection with their participation in criminal proceedings (see the commentary on part 4 of Article 71, Articles 175—176, 177—178 of the CPC; Resolution of the Government of the Republic of Kazakhstan No. 1070 dated 9 October 2014 “On Certain Issues of Reimbursement of Expenses Incurred by Persons During Criminal Proceedings”, paragraphs 1, 3, 7, and 16—17 of Regulatory Resolution No. 10 of the Supreme Court of the Republic of Kazakhstan dated 29 June 2018 “On the Recovery of Procedural Costs in Criminal Cases”).

Article 75. Legal Representatives of a Minor Suspect, Accused Person, Defendant, or Convicted Person

In criminal offences committed by a minor or by a person suffering from mental disorders that do not exclude criminal responsibility, their legal representatives shall be involved in the proceedings in accordance with the procedure established by this Code.

Where pre-trial proceedings or court proceedings, in the cases provided for by this Code, are conducted in the absence of the suspect, accused person, defendant, or convicted person, their legal representatives may participate in the criminal case.

The term “legal representatives” is established in subparagraph 13) of Article 7 of the CPC, according to which: “Legal representatives are the parents (parent), adoptive parents, guardians, trustees of a suspect, accused person, victim, or civil claimant, as well as representatives of organizations and persons under whose care or maintenance the suspect, accused person, or victim is placed.” Based on the title of the article, the legal representative of a minor suspect, accused person, defendant, or convicted person is a participant in all stages of criminal proceedings and belongs to the defence party (subparagraphs 13), 18), and 25) of Article 7 of the CPC). Their participation in a criminal case supplements the capabilities of the bodies conducting criminal proceedings in ensuring the principle of a comprehensive, complete, and objective examination of the circumstances of the criminal case, imposing criminal punishment corresponding to the gravity of the criminal offence and the personality of the minor defendant, and carrying out effective preventive work in the criminal case. For example, pursuant to paragraph 2) of part 2 of Article 542 of the CPC, the legal representatives of a minor defendant participate in the court's consideration of the case, are present throughout the entire trial, enjoy all the rights vested in them and, with their consent, may be examined as witnesses regarding the circumstances of the minor's lifestyle and upbringing; if the legal representative participating in the case is unable to appear, they may be replaced by another person. The subject matter of proof in cases involving minors and the court's right to respond to circumstances identified in the case that contributed to the commission of a criminal offence by a minor by issuing an appropriate separate ruling require this (part 4 of Article 53, paragraph 2) of Article 531 of the CPC).

Within the meaning of part 1 of Article 75 of the CPC, a legal representative is intended to represent the interests not only of a minor who is the subject of a criminal offence. Their scope of interests also includes representing the interests of a person suffering from mental illnesses that do not exclude criminal responsibility. However, let us consider everything in order.

According to the law, where the minor suspect or accused person has parents or other legal representatives, their participation in the case is mandatory. One or both parents of the minor may act as legal representatives. Parents and other close relatives participating in the case as defence counsel may not simultaneously participate as legal representatives of the minor. In their absence, the participation of a representative of the guardianship and trusteeship authority is mandatory (part 1 of Article 537 of the CPC). As a rule, the starting point (in the formal legal sense) for the participation of a legal representative in the case is the moment when the persons listed in the title of this article appear in the criminal case, that is, acquire procedural status in it. In fact, they are introduced into the case from the beginning of the pre-trial investigation, once the person who committed the criminal offence acquires the relevant procedural status, and remain involved in the case until the proceedings are completed (Article 46 of the CPC), unless they are replaced or removed from participation in the case for objective reasons.

The admission of a legal representative to the criminal case (from the moment of the first questioning of the minor suspect) and their removal from participation in the case shall be formalized by reasoned resolutions of the investigator. The facts of kinship, guardianship and trusteeship, and being maintained by another person must be confirmed by submitting the relevant documents. The body conducting criminal proceedings has the right to involve the legal representative, for the purpose of exercising their procedural rights, in all procedural actions carried out with the participation of the minor suspect. The legal representative shall be present in the courtroom throughout the entire trial. The court is obliged to explain their rights provided for in part three of Article 537 and paragraph 2) of part two of Article 542 of the CPC during the preparatory part of the main court hearing (paragraph 8 of Regulatory Resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 11 April 2002 “On Judicial Practice in Cases Involving Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Anti-Social Acts”).

A legal representative may be removed from participation in the case if there are grounds to believe that their actions harm the interests of the minor or are aimed at obstructing an objective investigation of the case, or upon the legal representative's request. The person conducting the pre-trial investigation shall issue a reasoned resolution to this effect. Another legal representative of the minor may be admitted to participate in the case (part 5 of Article 537 of the CPC).

In order to exercise their procedural rights during all procedural actions carried out with the participation of a minor suspect, accused person, defendant, or convicted person, the legal representative is vested with a set of rights, including the right to know what the minor is suspected of; to be present when reviewing resolutions recognizing the person as a suspect and qualifying the suspect's act, as well as the indictment approved by the prosecutor; to participate in the questioning of the minor; and, with the permission of the person conducting the pre-trial proceedings, to participate in other investigative actions conducted with the participation of the minor suspect and their defence counsel, etc. (part 3 of Article 537 of the CPC). Moreover, a minor defendant, with the participation of their legal representative and lawyer, has the right to reconcile with the victim, including through mediation, as well as to conclude a procedural agreement with the prosecutor (part 3 of Article 542 of the CPC).

In explaining the provisions of part 2 of Article 75 of the CPC, it should be noted that the subject of a criminal offence may, for various reasons, fail to participate in the proceedings (due to illness, evasion, etc.). Therefore, their legal representative, who has been admitted to participate in the case, is entitled to be present during the pre-trial investigation or the trial before the relevant court instance and to protect the rights of such minor. For example, this is possible in cases where proceedings are conducted in the absence of the defendant: 1) where the defendant, accused of committing a criminal misdemeanour or a crime of minor or medium gravity, requests that the case be considered in their absence; 2) where the defendant is outside the Republic of Kazakhstan and evades appearing before the court; 3) where a defendant held in custody refuses to appear and participate in the court hearing (part 2 of Article 335 of the CPC), or where compulsory medical measures are applied to a person, etc.

The legal representative of a person suffering from mental disorders that do not exclude criminal responsibility has the right to represent the interests of that person during pre-trial proceedings and court proceedings in cases concerning the application of compulsory medical measures. Under current law, compulsory medical measures may also be imposed by a court on persons who have committed a criminal offence and suffer from mental disorders that do not exclude criminal responsibility. Compulsory medical measures shall be imposed only in cases where the mental disorders are associated with the possibility that such persons may cause other substantial harm or pose a danger to themselves or others (paragraph 3) of part 1 of Article 91 of the Criminal Code, Article 26 of the Penal Enforcement Code, part 1 of Article 121 of the Code of the Republic of Kazakhstan dated 18 September 2009 “On Public Health and the Healthcare System”). Therefore, within the meaning of the provisions of part 1 of Article 75 of the CPC, the rights of a legal representative extend to the category of persons suffering from mental disorders that do not exclude criminal responsibility, to whom compulsory medical measures may be applied and who, consequently, require protection of their rights with the participation of a legal representative.

Legal representatives of victims who are summoned to the bodies conducting criminal proceedings to give testimony, participate in investigative actions, and take part in court proceedings are entitled to reimbursement of expenses incurred by them in connection with their participation in criminal proceedings (see the commentary on part 4 of Article 71, Articles 175—176, 177—178 of the CPC; Resolution of the Government of the Republic of Kazakhstan No. 1070 dated 9 October 2014 “On Certain Issues of Reimbursement of Expenses Incurred by Persons During Criminal Proceedings”, paragraphs 1, 3, 7, and 16—17 of Regulatory Resolution No. 10 of the Supreme Court of the Republic of Kazakhstan dated 29 June 2018 “On the Recovery of Procedural Costs in Criminal Cases”).

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

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