Commentary to article 216. The specifics of interrogating a suspect The Criminal Procedure Code of the Republic of Kazakhstan

Before the start of the interrogation, the person conducting the pre-trial investigation informs the suspect of which criminal offense he is suspected of committing, and also explains to him the rights provided for in Article 64 of this Code, including the right to refuse to testify.

After explaining to the suspect the nature of the suspicion, the person conducting the pre-trial investigation finds out whether the suspect pleads guilty in whole or in part or denies his guilt in committing a criminal offense.

The suspect's refusal to answer is regarded as a non-admission of his guilt.

The interrogation begins with an offer to the suspect to testify about the suspicion and all other circumstances that may be relevant to the case.

The participation of a defender is mandatory in the cases provided for in Article 67 of this Code, subject to the provisions of the second part of Article 69 of this Code.

Otherwise, the interrogation of the suspect is conducted in accordance with the rules of Article 210 of this Code.

The suspect must be interrogated.: 1) in case of his detention - no later than twenty-four hours from the moment of drawing up the detention protocol, while ensuring the right to a private and confidential meeting before the first interrogation with his chosen or appointed defense lawyer (Part 3 of Article 64 of the CPC); 2) in case of his evasion from appearing before the criminal court - immediately after his summons; 3 in all other cases, no later than the end of the pre-trial investigation, while respecting the right to a private meeting with a defense lawyer (Part 4 of Article 64 of the CPC).

These requirements of the law are aimed at ensuring the maximum reliability of the suspect's testimony, since delaying the interrogation of a detainee or after his arrest gives him the opportunity, in order to avoid criminal liability, to consider and put forward a reasonable version of the circumstances about which he was detained or brought.

Before the first interrogation of the suspect begins, the person conducting the interrogation must perform the following actions::

1) To establish the identity of the interrogated person, personal data about him and a document certifying it;

2) To find out whether he speaks the language in which the proceedings are conducted, in which language he wishes to testify. If necessary, the participation of an interpreter is provided.

3) Verify the identity of other persons participating in the interrogation (defense counsel, legal representative, etc.) and explain to them their rights, duties, and responsibilities.

4) In the case of the use of scientific and technical means, it is necessary to inform the participants of the interrogation about their use, indicating the data on the specialist who will record the course of the investigative action on them.

5) The fact of clarifying the rights and obligations of the above-mentioned persons must be confirmed by their signatures in the interrogation protocol.

6) Inform the suspect not only of what criminal offense he is suspected of committing, but also that he will be questioned as a suspect, after which explain to him his rights provided for in Part 9 of Article 64 of the CPC. Such an explanation should be given in terms that are understandable and accessible to the suspect, and the essence of each of the procedural rights should be explained. Giving evidence is a procedural right, not an obligation of the suspect (paragraph 6, part 9 of art. 64 of the CPC), in connection with which he is not subject to a criminal liability warning for refusing to testify and knowingly giving false testimony. When explaining the suspect's right to refuse to testify, he must be warned that his testimony may be used as evidence, including if he subsequently refuses to give evidence (Part 6 of Article 64 of the CPC). However, it should be explained to him that sincere repentance, active assistance in uncovering a criminal offense, exposing other accomplices to a criminal offense, and searching for property obtained as a result of a criminal offense are circumstances mitigating criminal liability and punishment (paragraph 11, part 1, Article 53 of the Criminal Code).

7) Although the commented article does not contain any indication of explaining to the suspect his procedural duties, however, they are provided for by other norms of the CPC. Thus, according to Parts 2 and 4 of Articles 110, Part 1 of Article 100 of the CPC, the body conducting the criminal procedure must explain to each person involved in the criminal case the rights and duties assigned to him. The rights and obligations must be explained to the person who has acquired the position of a participant in the criminal process before the commencement of the procedural action with his participation and before he expresses any position as a participant in the process. Therefore, along with explaining his rights, the suspect should be informed of his procedural obligations under Articles 205, Parts 3 and 4 of Articles 140, Part 1 of Article 268, Part 1 of Article 279, Part 1 of Article 223 of the CPC, etc.

Explaining to the suspect the nature of the suspicion should not be limited to the announcement or retelling of the decision to recognize him as a suspect or the qualification of his act. The person conducting the pre-trial investigation must find out whether the suspect understands the nature of the suspicion, whether he has any questions and, if any, answer them. After that, the investigator finds out whether he pleads guilty in full, in part, or denies his guilt in the criminal offense charged against him. If he is suspected of having committed several criminal offenses, he must be asked whether he pleads guilty to each act. If the suspect pleads not guilty, or pleads partially guilty, it is necessary to find out what exactly he pleads not guilty to. For example, a suspect may admit his guilt in committing specific actions or omissions, but disagree with their legal qualifications under the Criminal Code.

And only after clarifying the suspect's attitude to the essence of the suspicion and receiving a brief answer, he is invited to give detailed testimony on the essence of the suspicion.

The subject of the suspect's interrogation is defined by parts 1 and 2 of Articles 115 and Part 5 of Article 64 of the CPC, according to which the suspect must be questioned about the suspicion against him, as well as about other circumstances known to him that are relevant in the case, and evidence. The specifics of the interrogation of a suspect, unlike the interrogation of other participants in the pre-trial investigation, is that his testimony is not only a source of evidence, but also a means of his defense.

It is advisable to give the suspect the opportunity to give evidence in a free form, in a sequence convenient for him, without interrupting him. When giving evidence, the suspect has the right to present arguments and evidence refuting or challenging the suspicion presented to him. And only after the end of his testimony, ask him the necessary questions. If the testimony of the suspect contradicts the materials collected in the case and does not correspond to reality, the person conducting the pre-trial investigation must find out the reason for such a contradiction: whether they were given as a result of a conscientious error or whether they are intentionally unreliable.

The participation of a defense lawyer during the interrogation of a suspect is mandatory in cases provided for in Article 67 of the CPC. If a lawyer is invited or appointed, the suspect should be given the opportunity to have a private and confidential meeting with him before the start of the first interrogation, without limiting their number and duration (paragraph 5, part 9, Article 64, paragraph 1, part 2, Article 70 of the CPC).

In case the suspect refuses a lawyer, the requirements of Article 69 of the CPC must be observed.

The commented article of the CPC, providing for the specifics of the interrogation of the suspect, stipulates that otherwise his interrogation is conducted according to the rules of art. 210 CPC. At the same time, there are other norms of the CPC that determine the specifics of the interrogation of this participant in pre-trial proceedings. Thus, the interrogation of a suspect is possible only after the suspect has familiarized himself with the decision to initiate a pre-trial investigation, the protocol of detention, or the decision to recognize him as a suspect. The supervising (procedural) prosecutor may participate in the interrogation of a suspect.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Source: The PARAGRAPH Information System Document: Commentary to Chapter 26 of the Criminal Procedure Code of the Republic of Kazakhstan "Interrogation and confrontation" (Suleimenova G.Zh. professor, member of the Almaty City Bar Association)

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