Commentary to article 217. Features of interrogation by the investigating judge of the victim, witness (deposition of testimony) of the Criminal Procedure Code of the Republic of Kazakhstan
The prosecutor, the suspect or his lawyer participating in the case as a defender, has the right to request that the investigating judge interrogate the person who is the victim, witness, if there are grounds to believe that their later interrogation during the pre-trial investigation or court session may be impossible due to objective reasons (permanent residence outside the Republic Kazakhstan, traveling abroad, serious health condition, application of security measures), and also in order to exclude subsequent interrogations of minor witnesses and victims in order to exclude traumatic effects.
The person conducting the pre-trial investigation has the right to initiate before the prosecutor the issue of sending a petition for deposition of testimony to the investigating judge. The person conducting the pre-trial investigation shall attach to the appeal the materials of the criminal case confirming the need to deposit the testimony of the victim or witness.
After reviewing the submitted materials, the prosecutor decides within a day whether to send a petition to the investigating judge to deposit the testimony.
The investigating judge examines the petition within three days from the moment of its receipt and, based on the results, issues a reasoned decision to grant or refuse to grant the petition. If the request is granted, the investigating judge appoints the time of the interrogation as soon as possible, which is notified to the prosecutor, the suspect and his lawyer participating in the case as a defender. The decision of the investigating judge to dismiss the petition shall be appealed and protested in accordance with the procedure provided for in Article 107 of this Code. The refusal of the investigating judge to satisfy the petition does not prevent the re-application of the persons specified in the first part of this article in the event of circumstances indicating the existence of grounds for sending a petition to the court for deposition of testimony.
The interrogation of the victim and the witness by the investigating judge is carried out in the presence of the prosecutor, the suspect (if any), his lawyer participating as a defender, and, if necessary, other participants in the process. A suspect is not called for questioning if the presence of the suspect during the interrogation threatens the safety of the victim or witness. Ensuring the appearance of persons to participate in the court session when depositing testimony is entrusted to the persons who have filed a petition to the investigating judge. In order to summon a person, the suspect's defense attorney may request assistance from the investigating judge in ensuring that the person appears for questioning.
In connection with the failure of the prosecutor, defender, or suspect to appear for a valid reason, the interrogation may be postponed if the circumstances listed in the first paragraph of the first part of this article do not prevent this.
The interrogation and the record of the interrogation by the investigating judge shall be conducted in compliance with the rules of Articles 347, 369, 370, 371 of this Code.
The minutes of the court session, in which the testimony of the interrogated person deposited by the investigating judge is recorded, are signed by the judge and the secretary of the court session. The participants in the trial who are present at the deposition of testimony have the right to receive a copy of the minutes of the court session and bring their comments to it within five days after its signing. Comments on the protocol are considered by the investigating judge on the day of receipt with the issuance of a decision on their acceptance or rejection. After that, the minutes of the court session, comments on it, if any, and the judge's decision on their consideration are sent to the prosecutor for inclusion in the materials of the criminal case.
The purpose of judicial deposition of testimony is to provide judicial support for the proper process of evidence formation at the pre-trial investigation stage if there are sufficient grounds to assume that a later interrogation of a witness or victim may not be possible due to objective reasons.
The reason for the deposition of testimony by the investigating judge is the petition of the parties (the prosecutor, the suspect or his defense counsel). In this case, the prosecutor submits a petition based on the request of the person conducting the pre-trial investigation, with the submission of materials of the criminal case confirming the need for deposition. The commented norm does not specify the procedural form in which such an appeal should be clothed. It seems that the procedural form of appeal should be a resolution of the person conducting the investigation, which should indicate the grounds for depositing testimony with the relevant materials of the criminal case attached to the resolution. Based on the results of consideration of the appeal, the prosecutor makes a decision within a day.: 1) to refuse to initiate a petition to the investigating judge in the absence of grounds for deposition of testimony; 2) to send a petition to the investigating judge for deposition of testimony.
The following circumstances are among the grounds for deposition of testimony:
1) permanent residence outside the Republic of Kazakhstan, which must be confirmed by relevant documents (for example, registration of such residence);
2) travel abroad, which must be confirmed by appropriate documents confirming the length of stay outside Kazakhstan, which goes beyond the period of the pre-trial investigation (for example, a business trip order, a certificate of study, the availability of travel tickets (air / rail), etc.);
3) a serious state of health, which must be confirmed by an appropriate medical report.;
4) the application of a security measure, which must be confirmed by a resolution on its application. It seems that deposition of testimony can be carried out with the application of such measures as temporary placement in a safe place, relocation to another place of residence. In other cases, the interrogation of persons against whom other security measures have been taken must be carried out in conditions that exclude their recognition or without visual observation by other participants in the trial when depositing testimony.;
5) the exclusion of repeated interrogation of minor witnesses and victims in order to exclude traumatic effects.
It seems that deposition of testimony by a judge should not be preceded by interrogation by a person conducting a pre-trial investigation.
Subsequently, during the main trial, when considering a criminal case on its merits, the court has the right to question a witness, a victim, who were interrogated in accordance with the procedure provided for in Article 217 of the CPC if the interrogation was conducted with significant violations of the CPC requirements, in the absence of the defense, or there was a need to clarify testimony or during interrogation by an investigating judge. The circumstances relevant to the case were not clarified, or they were not known at the time of deposition of the testimony.
Based on the results of consideration of the prosecutor's petition, the judge, within three days from the moment of its receipt, issues a reasoned decision to satisfy the petition or refuse to satisfy it. The judge's decision to satisfy the petition, as follows from Part 3 of Article 107 of the CPC, can be appealed/protested within three days from the moment of its announcement to the regional or equivalent court through the court in which the decision was made. At the same time, if circumstances appear in the future indicating the existence of grounds for deposition of testimony, the parties have the right to reapply for judicial interrogation.
In case of satisfaction of the petition, the judge: 1) appoints the time of the interrogation; 2) notifies the prosecutor, the suspect and his defense counsel.
The summoning of persons to deposit their testimony is organized by the party that initiated the need for such an interrogation. Since the defender is not endowed by law with authority that would ensure the appearance of the person to be questioned in court, he has the right to apply to the investigating judge for assistance in summoning persons for questioning.
The law allows for the possibility of not calling a suspect for questioning if his presence during the interrogation threatens the safety of the victim or witness. It appears that this provision is in conflict with paragraph (e) of paragraph 3 of article 14 of the International Covenant on Civil and Political Rights (hereinafter referred to as the ICCPR), which provides for the right of every accused person to "interrogate witnesses who testify against him." According to Part 3 of Article 2 of the CPC, international treaties ratified by the Republic of Kazakhstan have priority over the CPC and are applied directly. In this regard, it seems that, by virtue of the priority of this ICCPR norm, the participation of a suspect in court during the interrogation of witnesses testifying against him should be ensured in all cases. If there are circumstances giving grounds to believe that the suspect's participation in the deposition of an interrogation threatens the safety of the person being interrogated, then security measures should be taken against the witness, the victim in accordance with the procedure provided for in Articles 97-98 of the CPC.
The interrogation of a victim or witness is conducted by a judge at a court hearing at the place of pre-trial proceedings or at the place of residence of a seriously ill victim or witness in the presence of persons who petitioned for deposition of testimony, in compliance with the rules applicable to the interrogation of a victim or witness (Articles 369 and 370 of the CPC), taking into account the specifics of the interrogation of a minor victim or witness (Articles 371 of the CPC), as well as the record of the main trial (Article 347 of the CPC),
The interrogation of the victim or witness may be carried out according to the rules of the commented article in the absence of the defense, if at the time of the interrogation no person was detained or involved as a suspect in this criminal case. In this regard, it seems that in the future, during the main trial, the defense has the right to file a motion to summon and interrogate a witness, the victim, if the deposition of his testimony did not clarify the circumstances that are essential to the case.
It follows from the content of the commented article that the minutes of the court session, in which the testimony of the interrogated person deposited by the investigating judge is recorded, must be executed on paper. The protocol must be prepared and signed by the presiding judge and the secretary no later than five days after the end of the court session, and the parties must be notified and given the opportunity to review it and receive a copy (Parts 4 and 6 of Articles 347 of the CPC). The participants in the process participating in the deposition of testimony have the right to bring comments to the protocol (art. 348 of the CPC), which are subject to review in accordance with the procedure provided for in Article 349 of the CPC.
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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