Commentary on Article 9. Principles of Criminal Procedure and Their Significance of the Criminal Procedure Code of the Republic of Kazakhstan
1. The principles are the fundamental foundations of criminal procedure that determine the system and content of its stages, institutions and rules, ensuring the general conditions for the exercise of the rights and obligations of participants in criminal proceedings and the fulfilment of the tasks facing it.
2. A violation of the principles of criminal procedure, depending on its nature and significance, entails the recognition of a procedural action or decision as unlawful, the annulment of decisions rendered in the course of such proceedings, or the recognition of materials collected in this manner as having no evidentiary force, or the invalidation of the proceedings conducted in the case.
The expression “principles of criminal procedure” clearly and fully reflects the most important theoretical and practical characteristics that they must meet, namely, their universally binding nature, certainty and guaranteed protection, as well as their close relationship with the general conditions governing individual stages of criminal procedure (see Chapter 24 “General Conditions for Conducting Pre-Trial Investigations” and Chapter 42 “General Conditions of the Main Court Hearing”).
By virtue of the general guiding nature of the principles of criminal procedure, their significant influence on all stages of criminal proceedings, and their presence in all institutions, rules and provisions of criminal procedure, strict adherence to their spirit and letter is required when carrying out any procedural actions or adopting procedural decisions. Any disregard or neglect of these fundamental, basic principles by the bodies conducting criminal proceedings is inadmissible. There can be no doubt that activities circumventing the requirements of these principles and deviations from their provisions create the grounds for unfair criminal proceedings in a case and are equivalent to an unequivocal failure to fulfil the tasks and objectives of criminal procedure. Strict compliance with the principles of criminal procedure is the principal condition for the legality and validity of the entire proceedings in a case, the decisions adopted and actions carried out, as well as the evidence collected.
- The CPC establishes a system of rules governing the general conditions of pre-trial investigations and the main court hearing. Although these rules do not attain the significance and level of principles of criminal procedure, they require the bodies conducting criminal proceedings to strictly observe specifically defined rules in order to prevent violations thereof. These are, in a sense, guidelines or “boundaries” within which the actual criminal procedural activities of the bodies conducting criminal proceedings must take place throughout the entire proceedings in order to comply with the principles of criminal procedure (Articles 187–201 and 331–349).
The wide range of decisions adopted by courts of appeal and cassation when grounds for setting aside or amending judgments and rulings of lower courts are identified demonstrates the extent of the significance of the principles of criminal procedure in a particular criminal case and the consequences of their non-compliance by the bodies conducting criminal proceedings (Articles 431, 433 and 494 of the CPC). Furthermore, evidence obtained in violation of the principles of criminal procedure is recognised as having no legal force and may not form the basis of an accusation or be used in proving any of the circumstances specified in Article 113 of the CPC (Article 112 of the CPC).
The principles of criminal procedure are protected by criminal law. The Criminal Code regulates the criminal liability of officials of bodies conducting criminal proceedings in the event that they commit crimes against justice: bringing a person known to be innocent to criminal liability, knowingly unlawful release from criminal liability, knowingly unlawful detention, placement in custody or holding in custody, coercion to give testimony, falsification of evidence and operational-investigative materials, provocation of commercial bribery or bribery, etc. (see Chapter 17 of the Criminal Code).
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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