Normative resolution of the Constitutional Court Of the Republic of Kazakhstan dated September 25, 2023 No. 29-NP of Article 482 of the Code of Criminal Procedure Consideration of convicts' complaints

IN THE NAME OF THE REPUBLIC OF KAZAKHSTAN

On the review of article 482 of the Code of Criminal Procedure for compliance with the Constitution of the Republic of Kazakhstan of the Republic of Kazakhstan dated July 4, 2014

The Constitutional Court of the Republic of Kazakhstan, composed of Chairman Azimova E.A., judges Nurmukhanova B.M., Zhakipbaev K.T., Kydyrbaeva A.K., Musin K.S., Ongarbaev E.A., Podoprigora R.A. and Udartseva S.F., with the participation of representatives:

The Prosecutor General's Office of the Republic of Kazakhstan – Advisor to the Prosecutor General Adamova T.B.,

Ministry of Justice of the Republic of Kazakhstan – Vice Minister Zhakselekova B.Sh.,

Ministry of Internal Affairs of the Republic of Kazakhstan – Deputy Chairman of the Committee of the Penal Correction System M.A. Ayubaev,

Commissioner for Human Rights of the Republic of Kazakhstan – Head of the Department of Legislation Analysis and the National Preventive Mechanism of the National Center for Human Rights Seitzhanov S.Zh.,

Office of the Mazhilis of the Parliament of the Republic of Kazakhstan – Head of the sector of the Department of Legislation Rakisheva A.M.,

Office of the Senate of the Parliament of the Republic of Kazakhstan – Deputy Head of the Legislation Department N.A. Sartayeva,  

Republican Bar Association – Nurkeeva A.A.,

In an open meeting, he considered the appeal of V.D. Shchebentovsky on checking for compliance with the Constitution of the Republic of Kazakhstan, Article 482 of the Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014 (hereinafter referred to as the CPC).

Having listened to the speaker, Judge of the Constitutional Court of the Republic of Kazakhstan K.S. Musin and the participants of the meeting, having studied the materials of the constitutional proceedings, having analyzed the legislation of the Republic of Kazakhstan, the Constitutional Court of the Republic of Kazakhstan

installed:

The Constitutional Court of the Republic of Kazakhstan (hereinafter referred to as the Constitutional Court) has received an application for review of compliance with the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution) of Article 482 of the CPC.

It follows from the appeal that A.T. Temirgaly's lawyer, as part of providing legal assistance to the applicant while serving his sentence in the AP-162/3 institution of the Committee of the Penal Enforcement System of the Ministry of Internal Affairs of the Republic of Kazakhstan, filed a complaint against the inaction of the Ministry of Internal Affairs of the Republic of Kazakhstan on February 2, 2018." in accordance with Article 476 of the CPC to court No. 2 of the city of Pavlodar.

By the decree of the court No. 2 of the city of Pavlodar dated December 13, 2022, the lawyer's complaint was left without consideration due to the filing of a complaint by an improper person, since only the convicted person has the right to file a complaint in the order of execution of the sentence.

By the resolution of the Judicial Board for Criminal Cases of the Pavlodar Regional Court dated January 4, 2023, the resolution of the court No. 2 of the city of Pavlodar remained unchanged.

According to the author of the appeal, the provision of the contested norm deprives a citizen of the right to receive one of the types of qualified legal assistance provided for by the Law of the Republic of Kazakhstan dated July 5, 2018 "On Advocacy and Legal Assistance" (hereinafter – The Law on Advocacy, the Law) imposes on him the obligation, not provided for by law, to personally sign and file complaints with the court, depriving the lawyer of such a right, enshrined in the Law, creates additional and insurmountable obstacles for convicted citizens to access qualified legal assistance guaranteed by the Constitution.

The Constitutional Court draws attention to the fact that Article 482 of the CPC consists of four parts. The norm contested by the applicant, which defines the subject entitled to file a complaint, is set out in the first sentence of the first part of this article. The following parts regulate the procedure for consideration by the court of complaints of convicted persons against actions (inaction) and decisions of the institution or body executing the punishment affecting their rights and legitimate interests, as well as decisions of the prosecutor on issues related to the execution of the sentence, or the prosecutor's refusal to satisfy their similar complaints.

Considering that the applicant does not raise the issue of checking the compliance with the Constitution of the provisions of Article 482 of the CPC, which establish the procedural procedure for judicial review of complaints from convicted persons, the Constitutional Court, in accordance with paragraph 2 of Article 50 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Constitutional Court of the Republic of Kazakhstan", checked the constitutionality of Article 482 of the CPC only in part one, fixing the norm specified in the appeal.

When considering the constitutionality of the contested CPC norm, the Constitutional Court proceeds from the following.

In accordance with paragraph 2 of article 13 of the Constitution, everyone has the right to judicial protection of their rights and freedoms.

According to the first part of Article 482 of the CPC, the convicted person has the right to appeal to the court against actions (inaction) and decisions (as amended in Russian) of the institution or body executing the punishment affecting their rights and legitimate interests, as well as decisions of the prosecutor on issues related to the execution of the sentence, or the prosecutor's refusal to satisfy their similar complaints.

Human rights and freedoms, according to paragraph 2 of article 12 of the Constitution, belong to everyone from birth, are recognized as absolute and inalienable.

The Constitutional Council noted that "the recognition of these human rights and freedoms as absolute means their extension to every person located on the territory of the Republic of Kazakhstan, regardless of his citizenship of the Republic" (Resolution No. 6/2 of October 28, 1996).

In accordance with paragraph 52) of Article 7 of the CPC, a sentence is a court decision rendered by a court of first instance or appeal on the issue of the guilt or innocence of the accused and the application or non–application of punishment to him. The individual certainty of this judicial act implies that the legal consequences it creates apply primarily to the convicted person himself as a person who is being subjected to criminal punishment on behalf of the State, which, in turn, restricts his rights and freedoms. In this regard, the provision by the legislator of the convicted person with the right to judicial appeal against actions (inaction) and decisions of the institution or body executing the sentence, as well as decisions of the prosecutor on issues related to the execution of the sentence, reasonably and logically follows from the constitutional principles of the rights of each person and the right of everyone to judicial protection.

The right to receive qualified legal assistance is guaranteed to everyone by paragraph 3 of article 13 of the Constitution.

In furtherance of the norms and provisions of the Constitution, the country's Parliament adopted the Law on Advocacy, which is a legislative act that establishes the basic principles, forms and types of legal assistance.

Taking into account the multidimensional nature of both advocacy and legal assistance, article 2 of the Law establishes that the norms governing advocacy and legal assistance may be contained in other normative legal acts. The law also allows that the regulatory legal acts of the Republic of Kazakhstan may establish the specifics of providing legal assistance.

Such normative legal acts in this case are the CPC and the Criminal Executive Code of the Republic of Kazakhstan dated July 5, 2014 (hereinafter referred to as the PEC).

With regard to criminal proceedings, the right to legal assistance is ensured by the fact that the norms of the CPC oblige the body conducting the criminal proceedings to provide a witness entitled to defense, a suspect, an accused, a defendant, a convicted person, or an acquitted person at their request with the opportunity to use the services of a defense attorney, and in certain cases establish the obligation for a defense attorney to participate in criminal proceedings. The CPC defines the powers of the defender, and also regulates the procedure for inviting, appointing, replacing the defender, and paying for his work, including with the allocation of payment costs to the state account.

The analysis showed that the norms of article 482 of the CPC in relation to the realization of everyone's right to receive qualified legal assistance do not comply with the provisions of the Constitution.

According to the norms of the Special Part of the CPC, the participation of a defender, including mandatory, is provided not only during pre-trial proceedings, but also during the consideration of a criminal case by courts of various instances. In particular, the right to file a motion for review in a court of cassation of a sentence that has entered into force belongs not only to the convicted person, but also to his defense counsel (Articles 414 and 486 of the CPC).

A similar approach was applied by the legislator with regard to the right to file a petition for the initiation of proceedings on newly discovered circumstances (Article 502 of the CPC). These norms correspond to the constitutional guarantee for obtaining qualified legal aid, comply with the principles of criminal procedure, the forms and types of legal aid established by Law, and are aimed at ensuring the convicted person's right to defense.

At the same time, at the stage of execution of the sentence, the procedural right of the defender to bring petitions in the interests of the convicted person is limited. Thus, in the list of 26 issues to be considered by the court during the execution of a sentence established by article 476 of the CPC, consideration of 12 issues can be initiated only by the convicted person himself, but not by his defense attorney (paragraphs 2), 4), 5), 7), 9), 11), 13), 15), 16), 17),19), 20) and there is only one question (paragraph 23) – by the convicted person or his lawyer (Article 477 of the CPC).

In accordance with article 482 of the CPC, the defender is not authorized to file complaints in defense of the convicted person against actions (inaction) and decisions (as amended in Russian) of the institution or body executing the sentence affecting the rights and legitimate interests of the convicted person, as well as against the prosecutor's decisions on issues related to the execution of the sentence, or the prosecutor's refusal in the satisfaction of their similar complaints.

The noted legal gap in practice is filled by a lawyer providing legal assistance to a convicted person by filing complaints on behalf of the convicted person on the basis of a power of attorney issued to him by the convicted person, which includes the authority to bring complaints on behalf of the principal.

The CPC does not provide for such a procedural figure as a representative of the convicted person among the participants in the criminal process, except in cases when the convicted person is a minor and his legal representative is involved in the case. The use of the institution of proxy representation, inherent primarily in civil law, in criminal proceedings is in this case a forced measure used by lawyers to protect the rights of a convicted person in the absence of special norms in the CPC.

Earlier, the Constitutional Court, in its regulatory resolution No. 16-NP dated May 22, 2023, clarified that "the activities of the court at the stage of execution of the sentence, as well as at other stages, are based on common principles of the criminal process and are aimed at achieving common objectives of criminal proceedings."

Emphasizing the importance of the principles of the criminal procedure, the legislator established in article 9 of the CPC that they are the fundamental principles of the criminal process, defining the system and content of its stages, institutions and norms that provide general conditions for the realization of the rights and obligations of participants in the criminal process and the solution of the tasks facing it. Violation of these principles entails significant legal consequences, up to the recognition of the proceedings as invalid.

The legislator recognized the fundamental provisions on the protection of citizens' rights and freedoms in criminal proceedings (Article 15 of the CPC), the conduct of judicial proceedings on the basis of competition and equality of the parties (Article 23 of the CPC), ensuring the right to qualified legal assistance (Article 27 of the CPC).

In this regard, the noted differentiation in approaches to the amount of qualified legal assistance that a convicted person can receive in the framework of criminal proceedings at various stages after the verdict enters into force has no objective and reasonable justification, is inconsistent with the principles of criminal procedure, contradicts other laws of the Republic and creates prerequisites for violating the constitutionally guaranteed right to receive qualified legal assistance.

Thus, subparagraph 3) of Article 15 of the Law establishes that the protection and representation of the interests of individuals and legal entities in courts, criminal prosecution authorities, other state bodies and non-governmental organizations in cases and in accordance with the procedure established by this Law and other laws of the Republic of Kazakhstan is one of the types of legal assistance.

In subitems 1) and 7) of paragraph 3 of Article 33 of the Law, the legislator grants a lawyer the right to defend and represent the rights and interests of persons who have applied for legal assistance in all courts, state, other bodies and organizations whose competence includes resolving relevant issues, to file petitions, and to file complaints against decisions and actions in accordance with the established procedure. (inaction) of state authorities, local governments, public associations, organizations, officials and civil servants infringing on the rights and legally protected interests of persons, those who asked for help.

It should also be noted that there are contradictions in this part between the norms of the CPC and the PEC. Thus, subparagraph 7) of the first part of Article 10 of the Criminal Code guarantees a convicted person to receive qualified legal assistance not only in the form of consultations, certificates, and drafting legal documents, including those submitted during the execution of sentences, but also in another form in accordance with the procedure established by the laws of the Republic of Kazakhstan. Consequently, the type of legal assistance mentioned above – protection and representation – should be available to the convicted person to protect his rights during the execution of the sentence.

The Constitutional Council, stating that the Parliament of the Republic has the right to determine specific models of legal regulation of the legal aid system, recognized this provision of the PECS in accordance with the Constitution (Regulatory Resolution No. 1 of June 4, 2021). The right to receive qualified legal assistance, as noted by the Constitutional Council in the said regulatory resolution, presupposes the possibility for each person to use the professional assistance of qualified lawyers when performing legally significant actions.

Human rights and freedoms are the highest value of the Republic of Kazakhstan. They determine the content and application of laws and other regulatory legal acts. At the same time, the right of everyone to receive qualified legal assistance is in no case subject to restriction (paragraph 1 of article 1, paragraph 2 of article 12 and paragraph 3 of Article 39 of the Constitution).

In the context of this constitutional provision, the Constitutional Court considers that the establishment of the specifics of providing legal assistance by regulatory legal acts other than the Law on Advocacy may consist in creating special conditions for the activities of persons providing such assistance, taking into account the specifics of the legal process, but should not be accompanied by a reduction in the volume, types and methods of legal assistance.

The convicted person's inability to use the services of a lawyer in terms of filing complaints with the latter in defense of the rights and interests of such a person at the stage of execution of the sentence cannot be regarded as a feature of the criminal process, since it significantly limits the amount of legal assistance guaranteed by the Constitution and established by other laws of the Republic.

In this regard, the Constitutional Court considers that the right to appeal against the actions (omissions) and decisions of the institution or body executing the sentence does not exclude the convicted person's right to receive legal assistance and protection in accordance with the procedure established by the Law on Advocacy.

According to article 10 of the Law of the Republic of Kazakhstan dated April 6, 2016 "On Legal Acts", the codes of the Republic have a higher legal force than the laws. The current situation does not allow law enforcement officers to be directly guided by the norms of the Law on Advocacy, ignoring the norms of the CPC that contradict them.

In accordance with paragraph 2 of Article 4 of the Basic Law, the Constitution has the highest legal force and direct effect on the entire territory of the Republic, and all laws of the country must comply with it. Consequently, the provisions of the first part of Article 482 of the CPC that contradict the Constitution should not be applied before making appropriate changes to the legislation, and when providing legal assistance, it is necessary to be guided by the relevant provisions of the Constitution and the Law on Advocacy.

When checking Article 482 of the CPC by the Constitutional Court, the semantic non-identity of its texts in Kazakh and Russian was also revealed.

The first sentence of the first part of Article 482 of the CPC in the state language is set out in the following wording: "Sottalgan adam zhazany oryndaityn mekemen nemese organ oz kukyktary men zandy muddelerin kozgaytyn ereketterine (ereketsizdigine), sonday-ak procurardyn ukimdi oryndauga baylanysty musseler zhonindegi sheshimderine is not a prosecutor osygan uksas shagymdardi kanagattandyrudan bas tartuyna sotka shagym zhasauga kukyly.".

In Russian, the same sentence is worded as follows: "The convicted person has the right to appeal to the court against the actions (inaction) and decisions of the institution or body executing the punishment affecting their rights and legitimate interests, as well as decisions of the prosecutor on issues related to the execution of the sentence, or the prosecutor's refusal to satisfy their similar complaints."

In the Kazakh version, in the first sentence of the first part of Article 482 of the CPC, after the words "zandy maddelerin kozgaytyn ereketterine (ereketsizdigine)", the words "zhane sheshimderine" are missing. Thus, in accordance with this version, a convicted person can appeal against the actions (inaction) of an institution or body executing punishment affecting his rights and legitimate interests, but is deprived of the right to appeal against the decisions of these institutions or bodies. In the Russian version, such a right of the convicted person is provided for.

Russian Russian Constitutional Control Body has repeatedly noted that "equality in the use of Kazakh and Russian languages also means equal legal significance of the texts of normative legal acts in Kazakh and Russian languages," and that "semantic non-identity, distorting the content of a legal norm and making it impossible to understand it unambiguously, excludes, based on the meaning of paragraph 2 of Article 7 of the Constitution.and the Republic, the application of such a norm in practice" (additional Resolution of the Constitutional Council of February 23, 2007 No. 3,  normative Resolution of the Constitutional Council of January 21, 2020 No. 1).

Constitutional The Court also notes that a number of CPC rules concerning the provision of legal aid are formulated in violation of the rules of legal technique, as a result of which some of their prescriptions are not clearly expressed.

Thus, the first part of Article 66 of the CPC defines that a defender is a person who, in accordance with the procedure established by law, protects the rights and interests of a convicted person and provides him with legal assistance in criminal proceedings.

According to article 46 of the CPC, criminal proceedings are completed, inter alia, from the moment the verdict enters into force or from the moment confirmation is received of the execution of the sentence or other final decision in the case, if it requires special measures to enforce it.

The literal understanding of these norms, in the opinion of the Constitutional Court, means that from the moment the criminal proceedings are completed, that is, from the moment the verdict enters into force or its execution, the powers of the defender cease. Accordingly, the defense attorney does not have the right to protect the rights and interests of the convicted person in cassation proceedings and at the stage of execution of the sentence, and the lawyer providing legal assistance must have a different legal status, but this is not provided for in the CPC.

The powers of the defender at these stages of the criminal procedure are not provided for in article 70 of the CPC, whereas according to paragraph 57) of Article 7 of the CPC, the proceedings in a case are a set of procedural actions and decisions carried out in a specific criminal case during its pre–trial and judicial proceedings.

Judicial proceedings, as mentioned above, include procedural actions and procedural decisions carried out and adopted by the court also after the entry into force of the verdict, in which a defender may, and in the presence of circumstances established by the CPC, must participate.

The law, as previously noted by the Constitutional Council, must meet the requirements of legal accuracy and predictability of consequences, that is, its norms must be formulated with a sufficient degree of clarity and based on understandable criteria that make it possible to clearly distinguish legitimate behavior from illegal, excluding the possibility of arbitrary interpretation of the provisions of the law (regulatory decree of February 27, 2008yes, No. 2).

The noted shortcomings of the CPC create the opportunity for an ambiguous understanding of some of the provisions contained therein, which in practice can lead to arbitrary interpretation and inadequate application of this legislative act and, as a result, to unjustified restriction of human and civil rights and freedoms.

Based on the above, guided by paragraph 3 of Article 72 and paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, subparagraph 3) paragraph 4 of article 23, articles 55-58, 62, paragraph 4 of article 64 and subparagraph 2) Paragraph 1 of Article 65 of the Constitutional Law "On the Constitutional Court of the Republic of Kazakhstan", the Constitutional Court of the Republic of Kazakhstan

Decides:

Recognize as inappropriate The Constitution of the Republic of Kazakhstan is the first sentence of the first part of Article 482 of the Criminal Procedure Code of the Republic of Kazakhstan.

No later than six months after the publication of this regulatory resolution, the Government of the Republic of Kazakhstan should submit to the Mazhilis of the Parliament of the Republic of Kazakhstan a draft law aimed at improving the legal regulation of the rights of persons to defend and receive qualified legal assistance in criminal proceedings, taking into account the legal positions of the Constitutional Court of the Republic of Kazakhstan set out in this regulatory resolution.

Before the adoption of new normative legal acts, taking into account the specifics of the legal regulation of the affected public relations, the Constitution of the Republic of Kazakhstan and this decision of the Constitutional Court are directly applied.

This regulatory resolution comes into force from the date of its adoption, is generally binding throughout the Republic, final and not subject to appeal.

To publish this regulatory resolution in Kazakh and Russian in periodicals that have received the right to officially publish legislative acts, the unified legal information system and on the Internet resource of the Constitutional Court of the Republic of Kazakhstan.

                                                                                        The Constitutional Court

                                                                                        Republic of Kazakhstan

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

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