Commentary on Article 98. Ensuring the Safety of Persons Participating in Judicial Proceedings of the Criminal Procedure Code of the Republic of Kazakhstan
1. In order to ensure the safety of participants in judicial proceedings, the presiding judge shall hold a closed court hearing and shall also take the measures provided for in paragraphs one, two, three and four of Article 97 of this Code.
2. Upon the motion of the protected person, the prosecution, as well as on its own initiative, for the purpose of ensuring the safety of the person, members of their family and close relatives, the court shall have the right to issue a ruling on the questioning of a witness:
1) without disclosing information about the identity of the protected person, using a pseudonym;
2) under conditions that exclude the possibility of identifying the protected person by other persons present, by their voice, accent and external characteristics: sex, nationality, age, height, build, posture and gait;
3) without visual observation of the protected person by other participants in the judicial proceedings, including through video communication.
The judge shall personally verify the identity of the person being questioned by examining the personal data of the protected person, separated from the main proceedings, and identity documents, without disclosing them, presenting them to other participants in the court hearing, including the court hearing secretary, or recording them in the minutes of the court hearing and/or judicial acts.
3. The presiding judge shall have the right to:
1) prohibit video recording, audio recording and other methods of documenting the questioning;
2) remove the defendant and representatives of the defence, with the exception of the lawyer, from the courtroom.
4. The testimony of a protected person questioned by the court in the absence of any of the participants in the proceedings or outside their visual observation shall be read out by the presiding judge in court in the presence of all participants, without indicating information about that protected person.
5. Where necessary, the court shall take other measures provided for by law to ensure the safety of participants in the proceedings and other persons.
6. The enforcement of the court ruling on ensuring the safety of participants in judicial proceedings shall be entrusted to criminal prosecution authorities, institutions and bodies executing sentences, as well as the court bailiff.
The issue of ensuring the safety of participants in criminal proceedings is also quite relevant during court hearings. That is why the law provides for a special article addressing issues related to ensuring the safety of participants in judicial proceedings (Article 98 of the CPC).
In this regard, it is permissible to hold a closed court hearing and take any other security measures discussed in our commentary on the provisions of Article 97 of the CPC.
- The issue of holding closed judicial proceedings where this is required by the security interests of participants in criminal proceedings, as well as members of their families and close relatives, shall be resolved simultaneously with the adoption of a reasoned court ruling on the appointment of the main court hearing (see the commentary on the provisions of Part 1 of Article 29, Part 1 of Article 96, and Subparagraph 9 of Part 2 of Article 322 of the CPC).
- The rules of Part 2 of Article 98 of the CPC and Article 13 of the Law “On State Protection of Persons Participating in Criminal Proceedings” regulate three forms of questioning a protected person in the status of a prosecution witness, both upon a motion by the prosecution and on the court's own initiative.
Thus, a witness may be questioned by the court without disclosing information about their identity, using a pseudonym. In addition, a prosecution witness may be questioned in court after the defendant and representatives of the defence, with the exception of the lawyer, have been removed from the courtroom (Subparagraph 1 of Part 2 of Article 98 of the CPC).
Where necessary, a protected person may be questioned under conditions that exclude the possibility of their identification. For these purposes, a mask, make-up, a device for altering the voice of the protected person and other lawful methods of protection may be used (Subparagraph 2 of Part 2 of Article 98 of the CPC).
A protected person may be questioned without being visually observed by other participants in the proceedings through the use of a screen, protective partition, and with the participation of a limited number of participants in the proceedings who are warned of the need to maintain confidentiality (Subparagraph 3 of Part 2 of Article 98 of the CPC).
It is important to note that in all the above cases, the judge verifies the identity of the person being questioned without informing the participants in the proceedings, through direct communication with that person and by using the case materials for this purpose. This is necessary to ensure the required quality of the evidence obtained from the testimony of the protected person.
At the same time, the judge is obliged to communicate the testimony of the protected person obtained by the above-mentioned methods to all participants in the court hearing, without indicating information about that person (Part 4 of Article 98 of the CPC).
In the interests of ensuring the safety of participants in criminal proceedings, the law permits the presiding judge to prohibit the use of video recording, audio recording and other methods of documenting the questioning during judicial proceedings (Subparagraph 1 of Part 3 of Article 98 of the CPC).
Above, we have listed the types of security measures established for the court (Articles 97 and 98 of the CPC). The court is also entitled to apply other security measures provided for by the CPC in a particular case (Part 5 of Article 98 of the CPC). For example, as a security measure for participants in criminal proceedings, a witness may be questioned by the court using scientific and technical means in video communication mode (remote questioning), by summoning the witness to the court of the district (region) in whose territory they are located or reside (Parts 7—8 of Article 370 of the CPC).
Regarding the security measures adopted, the court shall issue a reasoned ruling in the deliberation room as a separate document or record the ruling in the minutes of the main court hearing while in the courtroom (Part 3 of Article 344 of the CPC). Depending on the stage of the criminal proceedings, the law entrusts the enforcement of the court ruling on this matter to criminal prosecution authorities, institutions and bodies executing sentences, as well as the court bailiff (Part 6 of Article 98 of the CPC).
Based on an analysis of international experience and practice, as well as scientific research, it can be concluded that many foreign countries have achieved significant success in the legislative regulation of measures to ensure the safety of participants in criminal proceedings. First and foremost, the countries studied have effective legislation characterized by thoroughly developed legal mechanisms for ensuring the safety of participants in criminal proceedings and encouraging citizens to actively cooperate with the bodies conducting criminal proceedings. In principle, domestic criminal proceedings are also developing along this path.
Thus, in a number of Western European countries, including the United Kingdom, France, Belgium and the Netherlands, the right of a witness to give testimony during a court hearing outside the courtroom is established by law. In Italy, for example, the provisions of the Criminal Procedure Code have been supplemented by the Law on Combating the Mafia, under which a witness may be questioned during a court hearing by means of video recording. This allows a witness to give testimony while being in a safe place, while the police can ensure that protected persons remain beyond the reach of those who may threaten them. Special conditions for giving testimony in court by children who are victims and witnesses of crimes are also established by the legislation of the United Kingdom. Here, the playback of video recordings of children's testimony obtained outside the courtroom is permitted, which eliminates their contact with the defendant. Since 1992, video recordings of witness interviews have also been accepted as evidence in court in all other criminal cases.
Alongside laws on the protection of victims and witnesses of crimes, all the countries mentioned above have special nationwide programmes for ensuring the safety of participants in criminal proceedings in order to implement those laws. In the United States, for example, such a programme has been in operation since 1971. Under this programme, the US Attorney General may rent, purchase, modify and convert residential premises to ensure the health and well-being of prosecution witnesses and members of their families. When a court delivers a sentence or decides on the issue of the early release of a convicted person from imprisonment, the victim's opinion is taken into account in all states in accordance with the programme. A witness admitted to the Witness Protection Program in Canada has the opportunity to change their place of residence and is protected for the rest of their life. The protection programme in Austria is implemented for as long as a threat to the protected person exists. Two witness security systems are used in Germany, forming the basis for a witness's “new” life after the programme ends. A special witness (crime victim) security service with broad powers and rights operates in the United Kingdom.
It should be particularly noted that in the countries studied, ensuring the safety of victims and witnesses of crimes, where grounds exist, is entrusted primarily to special services. For example, in the United States, upon receiving authorization from the leadership of the Department of Justice, all responsibilities relating to protected witnesses are entrusted to the Federal Marshals Service. A distinctive feature of its activities is the extensive specialization and secrecy of its employees. Thus, one employee initially meets with the witness and informs them about the details of the Protection Program, discussing possible options for relocation and employment, taking into account their education, profession, health condition, etc. Other employees select a new place of residence and organize the relocation of the witness and their family. A third group, where necessary, immediately relocates the witness to a hotel and places them under protection. A fourth group is engaged in preparing new documents, etc. At the same time, direct contacts between employees of the Service are excluded. A high level of security and confidentiality is ensured at all stages of the aforementioned work. Employees do not know whom they are hiding and protecting or which case that person is involved in. An employee of the Service faces life imprisonment for disclosing information about a protected witness. Overall, the Witness Security Program has practically never experienced any failures. Witnesses have died only when they themselves violated the conditions of confidentiality. It is also important to point out that in all the countries studied, alongside the state system for protecting participants in criminal proceedings, there is an extensive network of non-governmental organizations, services, associations and foundations providing support to crime victims and persons assisting the administration of justice in fulfilling its tasks. Their effective experience requires separate and specialized study.
Thus, foreign experience in ensuring the safety of participants in criminal proceedings has been adopted by us to a certain extent, but not yet in full. It is necessary to continue studying it and additionally introduce into national practice for combating crime everything valuable that our foreign colleagues have developed in this area.
Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishovich 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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