Commentary on Article 78. Witness of the Criminal Procedure Code of the Republic of Kazakhstan

1. Any person who may have knowledge of any circumstances relevant to the case may be summoned and questioned as a witness for the purpose of giving testimony.

2. The following persons shall not be subject to questioning as witnesses:

1) a judge or juror — concerning the circumstances of a case that became known to them in connection with their participation in criminal proceedings, as well as during the discussion in the deliberation room of matters arising in the course of rendering a judicial decision;

2) an arbitrator — concerning circumstances that became known to them in connection with the performance of their duties as an arbitrator;

3) defence counsel for a suspect, accused person, defendant or convicted person, as well as their legal representatives, representatives of the victim, civil claimant and civil defendant, and also a witness's lawyer — concerning circumstances that became known to them in connection with the performance of their duties;

4) a clergyman — concerning circumstances known to them from confession;

5) a person who, due to being under the age of majority or having mental or physical disabilities, is incapable of correctly perceiving circumstances relevant to the case and giving testimony about them;

6) a mediator — concerning circumstances that became known to them in connection with conducting mediation, except in cases provided for by law;

7) a participant in the National Preventive Mechanism — concerning circumstances that became known to them in connection with carrying out their activities, except in cases involving a threat to national security.

3. A witness shall have the right to:

1) refuse to give testimony that may result in criminal prosecution for a criminally punishable act or an administrative offence against the witness, their spouse, or close relatives;

2) give testimony in their native language or in a language they speak;

3) use the free assistance of an interpreter;

4) challenge the interpreter participating in their questioning;

5) personally write down their testimony in the record of questioning;

6) lodge complaints against the actions (inaction) of an inquiry officer, investigator, prosecutor and court, and submit motions concerning their rights and legitimate interests, including motions for the adoption of security measures.

A witness shall have the right to give testimony in the presence of their lawyer. The failure of the lawyer to appear at the time established by the person conducting the pre-trial investigation shall not prevent the questioning of the witness.

A witness shall be reimbursed for expenses incurred by them in the course of criminal proceedings.

4. A witness shall be obliged to:

1) appear when summoned by an inquiry officer, investigator, prosecutor or court;

2) give truthful testimony and answer the questions put to them;

3) not disclose information concerning circumstances known to them in connection with the case if they have been warned about this by an inquiry officer, investigator or prosecutor;

4) comply with the established procedure during investigative actions and court hearings.

5. If a person is identified in an application or report concerning a criminal offence as the person who committed it, or if testimony is given against that person by a witness participating in criminal proceedings, but no procedural detention has been applied to that person and no resolution recognising them as a suspect has been issued, that person shall acquire the status of a witness entitled to the right to defence.

6. A witness entitled to the right to defence shall have the right to:

1) receive an explanation from the person conducting the pre-trial proceedings regarding the rights belonging to them;

2) know the substance of the status of a witness entitled to the right to defence;

3) familiarise themselves with the resolution appointing an expert examination in cases provided for by this Code;

4) familiarise themselves with the expert examination report in cases provided for by this Code;

5) refuse to give testimony;

6) independently or through third parties invite a lawyer;

7) give testimony in the presence of a lawyer of their choice who participates as defence counsel before the questioning begins;

8) give testimony in their native language or in a language they speak;

9) use the free assistance of an interpreter;

10) challenge the interpreter participating in their questioning;

11) personally write down their testimony in the record of questioning;

12) familiarise themselves with the documents specified in Part Five of this Article, with the exception of materials relating to operational-search activities, counterintelligence activities and covert investigative actions;

13) familiarise themselves with the records of investigative actions conducted with their participation and submit comments thereon, as well as present evidence;

14) submit motions concerning their rights and legitimate interests, including motions for the conduct of an expert examination and the application of security measures;

15) file challenges;

16) request a confrontation with persons who testify against them;

17) lodge complaints against the actions (inaction) of an inquiry officer, investigator or prosecutor.

7. A witness entitled to the right to defence shall be obliged to appear when summoned by the court, prosecutor or person conducting the pre-trial investigation; and to comply with the established procedure during investigative actions and court hearings.

8. A witness, including a witness entitled to the right to defence, shall not be subjected to an expert examination or physical examination, except in the cases specified in Articles 223 and 271 of this Code.

9. A witness shall bear criminal liability, as provided for by the Criminal Code of the Republic of Kazakhstan, for giving knowingly false testimony or refusing to give testimony. For evading the giving of testimony or failing to appear without valid reasons when summoned by the body conducting the criminal proceedings, a monetary penalty may be imposed on a witness, as well as on a witness entitled to the right to defence in the event of their failure to appear without valid reasons, in accordance with the procedure established by Article 160 of this Code.

Note. Article 78 was amended by the Laws of the Republic of Kazakhstan dated 8 April 2016 No. 489-V (which shall enter into force upon the expiration of ten calendar days after the date of its first official publication); dated 28 December 2016 No. 36-VI (which shall enter into force upon the expiration of two months after the date of its first official publication); and dated 27 December 2019 No. 292-VI (see Article 2 for the procedure for entry into force).

The article under consideration outlines the procedural status of a witness in a criminal case, who may represent either the prosecution or the defence. This constitutes the distinctive feature of their legal position.

Within the meaning of Part 1 of Article 78 of the CPC, giving testimony concerning circumstances included in the subject matter of proof in a criminal case constitutes the primary function of a witness in criminal proceedings (Article 113 of the CPC). This function is performed by the bodies conducting criminal proceedings through the questioning of a person as a witness (Articles 208–215 and 217 of the CPC). The questioning of a witness remains one of the key investigative actions conducted in every criminal case. Witness testimony constitutes an independent source of obtaining evidence in a criminal case (Part 2 of Article 111 of the CPC). One further important circumstance also indicates the place of questioning within the system of investigative actions.

In accordance with the requirements of the CPC, questioning precedes the conduct of most other investigative actions. For example, a confrontation is conducted between two persons who have previously been questioned (Part 1 of Article 218 of the CPC). Persons participating in an identification procedure are first questioned about the circumstances under which they observed the relevant person or object, as well as the distinguishing features and characteristics by which they may identify it (Part 2 of Article 229 of the CPC). The very title of the procedure for verification and clarification of a witness's testimony at the scene indicates the necessity of first questioning the person in that capacity (Part 2 of Article 257 of the CPC), and so forth.

Any person may be summoned as a witness. This is a very important provision of the rule contained in Part 1 of Article 78 of the CPC, which makes no exceptions for anyone. The questioning of a witness does not fall within the category of investigative actions conducted subject to any special conditions. In the presence of appropriate grounds, virtually any person may be questioned. However, there are two exceptions that must be observed. Firstly, witness immunity, that is, the prohibition on questioning a certain category of persons, the list of whom is provided in Part 2 of Article 78 of the CPC and is exhaustive (Article 28 of the CPC); secondly, immunity from giving testimony for persons enjoying diplomatic immunity from criminal prosecution (Article 555 of the CPC).

It should be clarified from the outset that the provisions of the principle of criminal proceedings stipulated in Article 28 of the CPC establish only cases involving the exemption of certain persons (a spouse, close relatives and clergymen) from giving witness testimony if they are summoned for questioning. Within the meaning of the provisions of this Article, this is not the same as the provisions of Part 2 of Article 78 of the CPC. In other words, Part 2 of Article 78 of the CPC presupposes that the bodies conducting criminal proceedings have prior knowledge (reliable information) of the legal status of the persons specified therein or of their mental characteristics, which initially make it impossible to question them as witnesses.

Thus, Part 2 of Article 78 of the CPC distinguishes approximately 15 categories of participants in criminal proceedings who shall not be questioned as witnesses.

The persons referred to in Paragraphs 1–3 and 6–7 of Part 2 of Article 78 of the CPC are persons who may not be questioned as witnesses by virtue of the meaning of the provisions governing the principles of justice and criminal proceedings, as well as their legal status in the case, as defined by law; their independence from the bodies conducting criminal proceedings and from one another; and the substance of the legal protection functions they perform in criminal proceedings.

However, such an unconditional prohibition does not apply to a mediator or a participant in the National Preventive Mechanism (Paragraphs 6–7 of Part 2 of Article 78 of the CPC).

" A mediator may not be questioned as a witness concerning information that became known to them during mediation, except in cases provided for by the laws of the Republic of Kazakhstan," as established by Paragraph 2 of Article 8 of the Law "On Mediation" dated 28 January 2011. This means that a mediator who is an advocate or a mediator who is an independent legal specialist may be questioned as a witness in their capacity as a financial monitoring entity in cases where, on behalf of or at the instruction of a client, they participate in transactions involving money and (or) other property in connection with the following activities: purchase and sale of real estate; management of the client's money, securities or other property; management of bank accounts or securities accounts; accumulation of funds for the establishment, provision, operation or management of a company; establishment, purchase and sale, operation or management of a legal entity (see the Law dated 28 August 2009 "On Counteracting the Legalisation (Laundering) of Proceeds Obtained by Criminal Means and the Financing of Terrorism").

A participant in the National Preventive Mechanism referred to in Paragraph 7 of Part 2 of Article 78 of the CPC may be questioned if information obtained by them in the course of their activities poses a threat to national security. The main threats to national security, that is, the totality of threats to the national security of the Republic of Kazakhstan, are set out in Article 6 of the Law of the Republic of Kazakhstan "On National Security of the Republic of Kazakhstan" dated 6 January 2012 (see also Paragraph 7 of Article 1 of that Law).

For reference. The National Preventive Mechanism operates as a system for preventing torture and other cruel, inhuman or degrading treatment or punishment, functioning through the activities of participants in the National Preventive Mechanism. Within the framework of their activities, participants in the National Preventive Mechanism visit institutions responsible for the execution of sentences (correctional institutions, pre-trial detention facilities, garrison guardhouses and units of garrison guardhouses), as well as other organisations designated for visits by these participants under the relevant law of the Republic of Kazakhstan (preventive visits). Participants in the National Preventive Mechanism include the Commissioner for Human Rights, as well as members of public monitoring commissions and public associations engaged in activities aimed at protecting the rights and legitimate interests of citizens, lawyers, social workers and doctors, selected by the Coordinating Council. The Commissioner for Human Rights coordinates the activities of participants in the National Preventive Mechanism (see the Law dated 2 July 2013 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the Establishment of a National Preventive Mechanism Aimed at Preventing Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment").

A clergyman, who likewise may not be questioned as a witness, was included in the category of persons specified in Part 2 of Article 78 of the CPC exclusively for moral considerations. In essence, the provision of Paragraph 4 of Part 2 of Article 78 of the CPC expresses moral and ethical principles.

Minor age (Paragraph 5 of Part 2 of Article 78 of the CPC), as an independent ground excluding the questioning of a person as a witness, as well as the persons to whom it applies and its limits, are established by Article 23 and Paragraph 1 of Article 925 of the Civil Code — these are minors under the age of fourteen.

To establish the mental or physical condition of a witness (victim), where doubts arise as to their ability to correctly perceive circumstances relevant to the case and give testimony concerning them (Paragraph 5 of Part 2 of Article 78 of the CPC), the appointment of an expert examination is mandatory (Paragraph 5 of Part 1 of Article 271 of the CPC). This is also necessary for the lawful and justified fulfilment of the requirement set out in Paragraph 5 of Part 2 of Article 78 of the CPC.

Parts 3–4 of Article 78 of the CPC regulate the legal capacity of a person who may be summoned for questioning to give testimony as a witness, including in the presence of their lawyer. The details of the rights and obligations of a witness during the pre-trial investigation are regulated by Articles 208–215 and 217 of the CPC. With regard to questioning, the CPC distinguishes the specific features of questioning a minor witness, the procedural form of remote questioning by means of video communication, the deposition of testimony (the same questioning procedure) by an investigating judge, as well as additional and repeated questioning.

Witnesses summoned to the bodies conducting criminal proceedings to give testimony, participate in investigative actions and take part in court proceedings shall have the right to reimbursement of expenses incurred by them in criminal proceedings (see the commentary to Part 4 of Article 71 and Articles 175–176 and 177–178 of the CPC; Resolution of the Government of the Republic of Kazakhstan dated 9 October 2014 "On Certain Issues of Reimbursement of Expenses Incurred by Persons in the Course of Criminal Proceedings", Paragraphs 1 and 3–7; Paragraphs 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").

Parts 5–6 of Article 78 of the CPC regulate the status of a witness entitled to the right to defence. This is a new procedural figure in the criminal procedure of Kazakhstan. Its classification as an ordinary witness is subject to a number of conditions stipulated by law that distinguish such persons from ordinary witnesses and, when present, enable the person to acquire this status.

The conditions established by law for recognising a person as a witness entitled to the right to defence are as follows:

the receipt of an application or report concerning a criminal offence in which the person concerned is identified as the person who committed that criminal offence;

as a result of questioning an ordinary witness, that person is identified by the witness as the person who committed the criminal offence.

Commentary on the Legal Status of a Witness Entitled to Defence

However, the law considers that only two independently operating conditions are insufficient. According to the law, these conditions become operative only if two additional independent conditions are also present:

— the person has not been detained as a suspect in accordance with the rules of Articles 128–135;

— the person has not been recognised as a suspect by means of the relevant resolution (subparagraph 1) of paragraph 1 of Article 64 of the CPC).

Judging by the substance of these conditions, it can be concluded that they do not allow a witness entitled to defence to become a suspect in the case, since the body conducting the criminal proceedings does not possess a body of evidence that would make it possible to classify such a person as a suspect in the case with the necessary degree of depth and accuracy. In other words, the evidentiary basis available to the inquiry officer or investigator does not provide grounds for recognising such a person as a suspect or detaining that person in such capacity.

Is it necessary, during pre-trial investigation, to issue a resolution granting a person the status of a witness entitled to defence? Absolutely, yes. This conclusion follows from the meaning of the provisions of Part 5 of Article 78 of the CPC: “If ..., then such person acquires the status of a witness entitled to defence”. That is, in our case, a person can acquire such status only through an appropriate decision of the inquiry officer or investigator, based on the grounds for initiating pre-trial investigation or on the testimony of an ordinary, standard witness, as well as on the provisions of Articles 7 and 198 of the CPC, which require all decisions of the investigator to be formalised by issuing a resolution. If this is not done, the investigator's resolution terminating the person's status in this capacity will be unmotivated.

A witness entitled to defence is a procedural figure at the pre-trial stage, a participant characteristic of the pre-trial investigation of a criminal case, from whom, if compelling evidence emerges during the pre-trial investigation, the procedural figure of a suspect in the commission of a criminal offence may subsequently arise. Hence, within the meaning of the provisions of Articles 370–372 of the CPC, during the judicial investigation, the court works with participants in criminal proceedings specifically defined by law. In court, specific witnesses are examined under oath, rather than witnesses entitled to defence.

Naturally, the question arises as to what legal force the testimony of a witness entitled to defence has. It appears that such testimony may form the basis for proving any circumstances subject to establishment in the case (Article 113 of the CPC).

At the same time, such testimony cannot be used against the witness entitled to defence if sufficient information is collected to allow that person to be transferred to the status of a suspect in the case: to detain the person, recognise the person as a suspect, or qualify the suspect's act. This is a legal requirement, and it is regulated by Part 3 of Article 112 of the CPC: “Testimony given by a suspect during preliminary questioning as a witness may not be recognised as evidence or used against his or her spouse and close relatives, nor may it form the basis of the suspect's accusation”.

Like an ordinary witness, a witness entitled to defence possesses a set of rights and obligations that are largely similar. However, there are fundamental differences.

Thus, upon their appearance in a criminal case, it is very important to explain their legal capacity to them, that is, their subjective rights and legal obligations, or the measure of permissible and required conduct during the pre-trial investigation of the case, as well as the meaning of their legal status in the criminal case and the differences between this status and that of an ordinary witness. In addition, the consequences of remaining in this status before trial must be explained (subparagraphs 1–2 of Part 6 of Article 78 of the CPC).

It is no less important to ascertain their attitude towards the appointment of a forensic examination in the criminal case and towards the conclusion of that examination (subparagraphs 3–4 of Part 6 of Article 78 of the CPC).

Furthermore, they have the right to refuse to give testimony that may result in criminal prosecution or prosecution for an administrative offence of themselves, their spouse, or their close relatives (subparagraph 5 of Part 6 of Article 78 of the CPC).

A witness entitled to defence, like an ordinary witness, has the right to give testimony in the presence of an advocate invited by them. In this regard, it should be noted that it is specifically an advocate who is entitled to represent the interests of witnesses in a case (naturally, where the witness's legal representatives participate in the case). However, if the advocate of an ordinary witness fails to appear at the time established by the person conducting the pre-trial investigation, this does not prevent the questioning of such witness (Part 3 of Article 78 of the CPC), whereas a witness entitled to defence has the right to give testimony in the presence of the advocate selected by them, who participates as their defence counsel before the questioning begins (subparagraphs 6–7 of Part 6 of Article 78 of the CPC).

Compliance with the requirements concerning the language of judicial proceedings is no less relevant in cases involving a witness entitled to defence (subparagraphs 8–9 of Part 6 of Article 78 of the CPC).

A witness entitled to defence has the right to challenge participants in criminal proceedings; this right also extends to the interpreter (subparagraphs 10 and 15 of Part 6 of Article 78 of the CPC). This is обусловлено by the need to ensure the effective protection of the rights of a witness entitled to defence, since the case affects their interests.

Among their rights, which are обусловлены by their transitional status and the desire to ensure greater objectivity of their testimony, is also the right to personally write down their testimony in the record of questioning (subparagraph 11 of Part 6 of Article 78 of the CPC).

Among the other rights of a witness entitled to defence that an ordinary witness does not have are: the right to familiarise themselves with the documents specified in Part 5 of Article 78 of the CPC, which shed light on their appearance in the case in this capacity, with the exception of materials relating to operational-search, counterintelligence and covert investigative actions; the right to familiarise themselves with the records of investigative actions conducted with their participation and to submit comments on them to the person who conducted those actions, with such comments being reflected in the records; the right to present evidence personally or through an advocate of their choice; the right to confront those who testify against them; the right to submit various applications and lodge complaints (subparagraphs 12–14 and 16–17 of Part 6 of Article 78 of the CPC).

A separate right that should be mentioned is the right of a witness entitled to defence to receive reimbursement of expenses incurred by them in connection with the criminal proceedings, as well as the right to receive free qualified legal assistance from an advocate at the expense of the State, in accordance with the above-mentioned legal acts of the Government of the Republic of Kazakhstan and the Minister of Justice of the Republic of Kazakhstan. The point is that the provision on reimbursement of expenses in the case is set out above, within the general procedural status of a witness (Part 3 of Article 78 of the CPC). In addition, the advocate is expressly referred to in the list of their rights as defence counsel (subparagraph 3 of Part 6 of Article 78 of the CPC).

Thus, the compulsory examination of a witness, including a witness entitled to defence (Part 7 of Article 78 of the CPC), for the purpose of detecting distinctive marks on their body, traces of a criminal offence, signs of bodily injury, determining a state of intoxication or other characteristics and features relevant to the case, where this does not require an examination to be conducted, is carried out on the basis of a resolution of the investigator authorised by the investigating judge (Parts 1 and 2 of Article 223 of the CPC).

An expert examination of witnesses, including those entitled to defence (as well as victims) (Part 7 of Article 78 of the CPC), is conducted only with their written consent. If these persons have not reached the age of majority or have been declared legally incapacitated by a court (Articles 26 and 928 of the Civil Code), written consent to conduct the examination is given by their legal representatives. This rule does not apply to examinations that must be appointed on the grounds provided for in Article 271 of the CPC (Part 4 of Article 274 of the CPC). In the latter case, referral of a witness (victim) to a medical institution for the conduct of forensic medical and forensic psychiatric examinations is carried out in accordance with the procedure provided for in Part 2 of Article 14 and subparagraph 9) of Part 1 of Article 55 of the CPC. That is, the compulsory placement of a witness in a medical institution for the conduct of forensic psychiatric and forensic medical examinations is permitted only pursuant to a court decision or a decision of an investigating judge.

The giving of false testimony by an ordinary witness and their refusal to give testimony (unlike a witness entitled to defence) are criminally punishable and entail liability under Articles 420–421 of the Criminal Code. An ordinary witness's refusal to give testimony (in the absence of grounds for such refusal) must be recorded in the record of questioning and serve as grounds for initiating pre-trial investigation. The case concerning such a witness may either be joined to the main case in which the refusal was declared or separated from the main criminal case into separate proceedings.

For evading the giving of testimony or failing to appear without valid reasons when summoned by the body conducting the criminal proceedings, a monetary penalty may be imposed on an ordinary witness by an investigating judge in accordance with the procedure and amounts established by Articles 159–160 of the CPC. Such a monetary penalty may also be imposed on a witness entitled to defence, but only in cases where they fail to appear before the body conducting the criminal proceedings without valid reasons. Thus, a witness entitled to defence may also be subject to criminal procedural liability provided for in Part 8 of Article 78 of the CPC.

Criminal liability of an ordinary witness for disclosing information relating to an inquiry or pre-trial investigation is possible only if they were warned, against their signature, that disclosure of such information was inadmissible (subparagraph 3 of Part 4 of Article 78, Article 201 of the CPC, Article 423 of the Criminal Code).

The deliberate falsity of testimony given by an ordinary witness (victim), established by a court judgment that has entered into legal force, constitutes grounds for reopening proceedings in a case on the basis of newly discovered circumstances (subparagraph 1 of Part 2 of Article 499 of the CPC).

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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