Commentary on Article 8. Objectives of Criminal Proceedings of the Criminal Procedure Code of the Republic of Kazakhstan

1. The objectives of criminal proceedings are the suppression, impartial, prompt and complete disclosure and investigation of criminal offences, the exposure and prosecution of persons who have committed them, a fair trial and the proper application of criminal law, and the protection of individuals, society and the State from criminal offences.

2. The procedure for conducting criminal proceedings established by law must ensure protection against unfounded accusations and convictions, unlawful restrictions on human and civil rights and freedoms, and, in the event of unlawful accusation or conviction of an innocent person, their immediate and full rehabilitation, as well as contribute to strengthening legality and law and order, preventing criminal offences, and fostering respect for the law.

In essence, Article 8 of the CPC consists of two parts: the objectives of criminal proceedings (Part 1) and the purposes achieved through these objectives (Part 2).

The suppression of criminal offences is the activity of bodies conducting criminal proceedings aimed at stopping, interrupting and terminating a person's criminal activity at the stages of preparation for a crime and attempted commission of a crime, as well as encouraging a person to voluntarily abandon the commission of a criminal offence (Articles 24 and 26 of the Criminal Code). Both the capabilities of criminal proceedings and the methods of operational-search and counterintelligence activities are used to fulfil this objective.

The term “impartiality”, that is, the ability of an official conducting criminal proceedings to assess evidence fairly and the absence of prejudice or bias on their part in a case, originates from the norms of international law. Its inclusion among the objectives of criminal proceedings requires the bodies (officials) conducting criminal proceedings to maintain an objective attitude and observe the law when conducting criminal proceedings. “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of their rights and obligations and of any criminal charge against them”, as proclaimed in Article 10 of the Universal Declaration of Human Rights of 10 December 1948. This provision is reproduced in paragraph I of Article 14 of the International Covenant on Civil and Political Rights of 16 December 1966: “Everyone shall be entitled, in the determination of any criminal charge against them, or of their rights and obligations in a suit at law, to a fair and public hearing by a competent, independent and impartial tribunal established by law”. The Code of Conduct for Law Enforcement Officials, adopted by UN General Assembly Resolution 34/169 of 17 December 1979, is of practical significance in this regard. In continuation of the above provisions, it states that every law enforcement official is part of the criminal justice system, the purpose of which is to prevent and combat crime, and that the conduct of every official within this system affects the entire system (subparagraph “c”). The principle of impartiality of justice is clearly articulated in the Basic Principles on the Independence of the Judiciary, endorsed by UN General Assembly Resolutions 40/32 and 40/146 of 29 November 1985 and 13 December 1985, respectively: “The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influence, inducements, pressure, threats or interference, direct or indirect, from any quarter or for any reason” (paragraph 2). The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 is interconnected with this principle. In accordance with this Convention, each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction (Article 12). The impartial application of the Basic Principles for the Treatment of Prisoners (11 in total), developed and endorsed by UN General Assembly Resolution 45/111 of 14 December 1990, is also affirmed (Principle 11).

The prompt disclosure and investigation of criminal offences means the conduct of proceedings within a short period of time, within the time limits established by law for the pre-trial investigation stage (Articles 189, 190 and 192 of the CPC). The time limits established for dealing with applications and reports that contain no indications of a criminal offence, or where there is insufficient information indicating the elements of a criminal offence (no later than three days from the date of receipt of the application or report), as well as the time limits for investigating a criminal case (no more than 15 days in the case of accelerated pre-trial investigation, one month in the case of inquiry, and two months in the case of investigation), are standard and must not be violated. Any extension of the time limits for pre-trial investigation of a criminal case must be reasoned, that is, substantiated by evidence collected during the proceedings. In general, the time limits for pre-trial investigation meet the needs of criminal proceedings and must not be prolonged or exceeded on contrived grounds: pre-trial investigation must be completed within a reasonable time, as established by Part 1 of Article 192 of the CPC, which also sets out the characteristics of such time limits. The term “reasonable time” is also fundamentally derived from universal international instruments concerning the administration of justice and individual rights in criminal proceedings. For example, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by a UN General Assembly resolution on 9 December 1988, contains the following uses of these words: “reasonable period” (paragraph 4, Principle 16), “reasonable facilities” (paragraph 1, Principle 17), “reasonable conditions” (Principle 25), “reasonable quantities” (Principle 28), and “reasonable time” (Principle 38). In particular, Principle 38 interprets this concept as follows: “A person detained on a criminal charge shall be entitled to trial within a reasonable time or to release pending trial”.

The prompt disclosure and investigation of criminal offences are also based on the right of an inquiry body, where there are indications of a crime, to carry out urgent investigative actions within a period of up to five days in order to identify and secure traces of the crime in a case in which a preliminary investigation is mandatory (Article 196 of the CPC). Upon completion of urgent investigative actions, where there are no issues concerning investigative jurisdiction, the inquiry body is obliged to immediately transfer the case to the investigator and notify the prosecutor thereof in writing within twenty-four hours. If circumstances precluding proceedings in the case are established, the inquiry body has the right to terminate the criminal case. In all other cases, the criminal case shall be transferred to the prosecutor to determine investigative jurisdiction.

The complete disclosure and investigation of criminal offences means the detailed and exhaustive establishment of all circumstances subject to proof in any criminal case (Article 113 of the CPC). The nature of domestic criminal proceedings recognises criminal cases concerning criminal offences as having been disclosed and investigated both through the final procedural decisions of the inquiry officer and investigator and through the final procedural decisions of the court.

At the pre-trial investigation stage, the complete disclosure and investigation of criminal offences takes place when the inquiry body or preliminary investigation body adopts procedural decisions such as a resolution to terminate a criminal case on grounds that do not rehabilitate the person (for example, subparagraphs 3 and 4 of Part 1 of Article 35 and Article 36 of the CPC). In these cases, the person is recognised as guilty of committing a criminal offence, which, in addition to their admission of guilt, requires their consent to the adoption of such a decision and confirmation of their guilt by the totality of other evidence collected during the proceedings.

The standard form of complete disclosure and investigation of criminal offences is associated with the termination of a criminal case against the defendant during the main court hearing on grounds that do not rehabilitate the person, as provided for in Articles 35 and 36 of the CPC, as well as with the delivery by the court of a conviction on the relevant grounds (Article 393 of the CPC). Undoubtedly, in all the aforementioned cases, the complete disclosure of criminal offences occurs on the condition that the above procedural decisions of the bodies conducting criminal proceedings have entered into legal force. This understanding of the complete disclosure of criminal offences is consistent with the constitutional requirements that a person may be found guilty of committing a crime only by a court judgment that has entered into legal force (subparagraph 3 of Article 77 of the Constitution). However, in terms of their procedural purpose, resolutions of criminal prosecution bodies terminating a criminal case on grounds that do not rehabilitate the person stand on an equal footing with a court conviction, as they also establish the person's guilt in committing a criminal offence. The adoption of such decisions long before trial by non-judicial bodies is provided for by the current CPC, is prompted by considerations of procedural economy in conducting the case, and serves the objective of prompt disclosure and investigation of criminal offences. A person in respect of whom a decision is made to terminate a criminal case on non-rehabilitating grounds has the right to object to such a decision of the inquiry body or investigator (which demonstrates the legality of terminating the proceedings), that is, effectively to refuse to recognise themselves as guilty of committing a crime. In such a case, proceedings in the case continue under the ordinary procedure and conclude with the delivery of the appropriate type of judgment (Part 4 of Article 35, Part 5 of Article 36, and Article 392 of the CPC).

The exposure and prosecution of persons who have committed criminal offences is the objective and, at the same time, the duty of the prosecutor (the inquiry body, investigator, prosecutor, private prosecutor (victim)) to prove the existence of grounds for criminal liability and the guilt of the suspect or accused, that is, to collect, examine, assess and use evidence in order to establish circumstances relevant to the lawful, well-founded and fair resolution of the case (Articles 113 and 121 of the CPC).

A fair trial can take place exclusively on the basis of the complete disclosure and investigation of a criminal offence by the criminal prosecution bodies and provided that the court observes all constitutional principles of justice and criminal proceedings, as well as the general conditions governing the main court hearing. This is an axiom that requires no proof.

The proper application of criminal law is associated with the accurate legal classification of a criminal offence at all stages of criminal proceedings, upon which the legality and validity of all procedural actions and decisions of the bodies conducting criminal proceedings depend. In this regard, the dependence of the accurate legal classification of the act on the evidence collected and examined in the case is also obvious and indisputable. Ultimately, the proper application of criminal law itself (the provisions of its General and Special Parts) aims to ensure that the court imposes a criminal penalty on the defendant that corresponds to the gravity of the criminal offence and the personality of the convicted person. The relevance of this issue is demonstrated by the fact that the improper application of criminal law constitutes an independent ground for setting aside or amending a judgment under the appellate or cassation procedure (subparagraph 4 of Article 433, Part 9 of Article 494 of the CPC).

In view of the foregoing, it becomes indisputable that, as a result of bringing a person who has committed a criminal offence to criminal liability, the protection of individuals, society and the State from criminal encroachments is objectively ensured. Furthermore, the objectives of preventing new criminal offences by that person or by other persons permeate the provisions of the CPC concerning the mandatory preventive activities of pre-trial investigation bodies and the court in criminal cases (Part 4 of Article 113, Articles 193, 200 and 405 of the CPC).

The fulfilment of the objectives of criminal proceedings by the methods established by the CPC ensures the legality and validity of all proceedings in a case and the achievement of their purposes. The purposes of criminal proceedings provided for in Part 2 of Article 8 of the CPC are served by dividing criminal proceedings into specific stages, each of which acts as a supervisory stage in relation to the preceding one; conducting all proceedings in a case in the procedural form established by the CPC; the existence of departmental control, prosecutorial supervision and judicial control at the pre-trial investigation stage; the possibility of a higher court setting aside or amending a judgment of a lower court, and so forth. Therefore, the scope for investigative and judicial errors, as well as for the unlawful accusation or conviction of an innocent person, is substantially limited and, where all participants in the proceedings fully exercise their legal capacity, is entirely absent. An important purpose of criminal proceedings is the prevention of new criminal offences through the examples of offences committed (investigated and considered), and the fostering of respect for the law. The bodies conducting criminal proceedings are obliged to establish the causes that led a person to commit a criminal offence and the conditions that made it possible, and to carry out effective preventive work to eliminate such causes and conditions and prevent their recurrence in the future. These bodies are also obliged to make maximum use of the educational aspects of criminal proceedings and proceedings in a case in order to foster respect for the applicable law and the legal procedures adopted in the field of criminal justice among all participants in the proceedings (individuals and legal entities) brought within their scope.

Note: Spelling errors, obvious typographical errors and errors resulting from text recognition have been corrected. The content and wording have been preserved. The numbering of paragraphs 3 and 6 has been retained in accordance with the original text, although there are gaps in it.

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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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