On judicial protection of human and civil rights and freedoms in criminal proceedings

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2010 No. 4.

      The footnote. Throughout the text, the numbers "109" are replaced by the numbers "106" in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

     In order to ensure the correct and uniform application by courts in criminal proceedings of constitutional norms and laws ensuring personal freedom, inviolability of private life, personal and family secrets, correspondence, telephone conversations, postal, telegraphic and other communications, as well as to increase the effectiveness of their judicial protection, the plenary session of the Supreme Court of the Republic of Kazakhstan

     Decides:

To draw the attention of the courts to the fact that, along with the direct resolution of court cases, it is necessary to implement the functions of the judiciary to protect against unlawful and unjustified restrictions on the rights and freedoms of persons involved in criminal proceedings, to take timely measures provided for by law to restore them, as well as to compensate for the damage caused.

      At the pre-trial stage of the criminal process, judicial protection is carried out when authorizing preventive measures in the form of detention, house arrest, bail, measures of procedural coercion in the form of temporary suspension from office and a ban on approaching, as well as when considering complaints about actions (inaction) and decisions of the criminal prosecution authorities provided for in article 106, part two of the article 109 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter - CPC).

     During the preparation of the case for trial and the main trial of the case, judicial protection is carried out by verifying the legality of the proceedings conducted by the criminal prosecution authorities and their compliance with the requirements of the law guaranteeing the procedural rights of the persons involved in the case.

      At the stage of execution of sentences and court decisions, judicial control is carried out in accordance with article 27 of the Criminal Executive Code of the Republic of Kazakhstan.

     The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

The courts should keep in mind that, by virtue of the first part of Article 106 of the CPC, actions (inaction) and decisions of the prosecutor, investigative and inquiry bodies are subject to judicial appeal: refusal to accept an application for a criminal offense, as well as violation of the law at the beginning of a pre-trial investigation, interruption of the investigation period, termination of a criminal case, forced placement in a medical organization for conducting a forensic medical examination, conducting a search and (or) seizure, performing other actions (inaction) and making decisions.

     Other actions (inaction) and decisions, the postponement of verification, the legality of which, until the stage of preparing the case for trial or the main trial, makes the restoration of infringed human and civil rights and freedoms difficult or impossible, should include, for example, the decision of the criminal prosecution authorities to refuse to appoint a defender, to refuse to admit a legal representative, on the selection and application of procedural coercion measures to the suspect or the accused (with the exception of those authorized by the investigating judge), refusal to recognize a person as a victim, inaction in checking reports of a criminal offense, and others.

     The footnote. Paragraph 2 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 4 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Actions and decisions related to the implementation of operational search activities may be appealed directly to the court in accordance with Article 106 of the CPC and paragraph 2 of Article 5 of the Law of the Republic of Kazakhstan dated September 15, 1994 No. 154-XIII "On operational search activities" (hereinafter — the Law "On Operational Search Activities"), if they are related to the criminal case proceedings.

     The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

According to articles 100 and 106 of the CPC, participants in criminal proceedings or other persons or organizations may file a complaint against procedural decisions and actions (inaction) of the inquirer, the body of inquiry, the head of the body of inquiry, the investigator, the head of the investigative department, the prosecutor, to the extent that the procedural actions performed and the procedural decisions taken affect their legitimate interests., as well as a defender, legal representative or representative acting in the interests of the applicant.

     The applicant's representative may also be a person who did not participate in the pre-trial proceedings in connection with which the complaint was filed, but authorized by the applicant to file the complaint and (or) participate in its consideration.

     It is unacceptable to restrict the right to judicial appeal against decisions and actions (inaction) affecting the rights and legitimate interests of citizens solely on the grounds that they have not been recognized as participants in the process in accordance with the procedure established by law. Ensuring the human and civil rights and freedoms guaranteed by the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution) should follow from the actual position of this person as needing to ensure the relevant right (for example, a person who is denied registration of a criminal offense application; a person whose property was seized or damaged during a search (seizure); a person who suffered from a crime committed and was unreasonably unrecognized as a victim, etc.).

     The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Within the meaning of article 106 of the CPC, when verifying the legality and validity of decisions and actions (inaction) of the prosecutor, the investigating authorities, and the inquiry, the investigating judge should not prejudge issues that may subsequently be the subject of the main trial. In particular, the investigating judge has no right to draw conclusions about the actual circumstances of the case, about the assessment of evidence and the qualification of the act.

     The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).      6. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated January 24, 2020 No. 2 (effective from the date of the first official publication).      7. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated January 24, 2020 No. 2 (effective from the date of the first official publication).      8. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated January 24, 2020 No. 2 (effective from the date of the first official publication).      9. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated January 24, 2020 No. 2 (effective from the date of the first official publication).

The criminal procedure legislation establishes a uniform procedure for criminal proceedings, at the same time, courts should take into account that the provisions contained in the Constitutional Law of the Republic of Kazakhstan dated December 25, 2000 No. 132 "On the Judicial System and Status of Judges of the Republic of Kazakhstan", the Constitutional Law of the Republic of Kazakhstan dated October 16, 1995 No. 2529 "On the Parliament of the Republic of Kazakhstan and the status of its deputies", Constitutional Law of the Republic of Kazakhstan dated December 29, 1995 No. 2737 "On the Constitutional Council of the Republic of Kazakhstan", The Law of the Republic of Kazakhstan dated June 30, 2017 No. 81-VI "On the Prosecutor's Office" provides for certain features, the observance of which is mandatory when conducting investigative and procedural actions against judges, members of Parliament, candidates for deputies of Parliament, presidential candidates, the Chairman and members of the Constitutional Council, the Prosecutor General.

     When deciding whether to bring to criminal responsibility a person with privileges for committing crimes of minor or moderate severity, if this person has not been detained at the scene of the crime, consent must be obtained to bring him to criminal responsibility.

     The footnote. Paragraph 10, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).

The courts should pay attention to the fact that in accordance with the Resolution of the Constitutional Council of the Republic of Kazakhstan dated January 30, 2003 No. 10 "On the official interpretation of paragraph 4 of Article 52, paragraph 5 of Article 71, paragraph 2 of Article 79, paragraph 3 of Article 83 and paragraph 2 of Article 15 of the Constitution of the Republic of Kazakhstan" when changing the qualification of an act with grave or especially grave for a crime of lesser gravity committed by a person, whose inviolability is enshrined in the Constitution and in respect of whom the consent of the relevant state organizations has not previously been requested by the criminal prosecution authorities, compliance with the rules on the procedure for deprivation of immunity in case of arrest and criminal prosecution is mandatory.

In this regard, the criminal prosecution authority, having established that a person has been brought to criminal responsibility for committing a minor or moderate crime without the consent of state bodies as a result of an erroneous qualification of the act committed by him under articles of the Criminal Code of the Republic of Kazakhstan providing for liability for committing serious and (or) especially serious crimes, or without taking into account the rules of competition norms of the criminal law, He is obliged to submit an appropriate submission to the Prosecutor General of the Republic of Kazakhstan on the need to obtain consent to bring him to criminal responsibility. If these circumstances are revealed during the preparation of the case for trial or the main trial, the court returns the case to the prosecutor.

A search of judges' residential and office premises, personal and official vehicles used by them, their correspondence, bank accounts, luggage and other property, seizure of documents and objects, seizure of property and postal and telegraphic items, interception of messages, listening and recording of negotiations may be carried out only as part of a pre-trial investigation conducted with the consent of the Prosecutor General. The Prosecutor of the Republic of Kazakhstan.

      Special operational search measures listed in paragraph 3 of Article 11 of the Law "On Operational Search Activities" may be carried out only with the approval of the prosecutor of the region (city) and higher prosecutors. The application of the provisions of paragraph 7 of Article 12 of the Law "On Operational Search Activities" on the possibility of conducting special operational search measures against judges without the approval of the prosecutor is not allowed.

     The footnote. Paragraph 12, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 12/30/2011 No. 4 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When deciding on the appointment of the main trial, the courts, based on the norms contained in Chapter 41 of the CPC, should check whether significant violations of the criminal procedure law were committed during the pre-trial investigation, accelerated pre-trial investigation, conclusion of a procedural agreement, agreement on reconciliation through mediation, preventing the appointment of the main trial, and if any are found in accordance with Article 323 of the CPC and in accordance with the procedure provided for in Article 321 of the CPC, return the case to the prosecutor for their elimination.

     During the preparation for the main trial, the judge, when examining the case materials, should find out whether there were statements or petitions from the parties about the unlawful restriction of their rights during the pre-trial proceedings, whether they were properly resolved, whether there are relevant materials in the case, in their absence, the prosecutor should be obliged to provide them to the court.

     The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

The judge in the received criminal case must check whether the criminal prosecution authority has taken measures aimed at ensuring the supervision, care and livelihood of minor children, other disabled persons who were dependent on the defendant, as well as ensuring the supervision of property and animals belonging to him, which were left without care and supervision as a result of his detention guards.

      If such measures have not been taken, the court, at the request of the defendant or the defense attorney on the basis of article 154 of the CPC, must, during the preliminary hearing of the case, issue a resolution imposing on the relevant persons or bodies the obligation to take the necessary measures.

     The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When assessing evidence, courts should take into account that during the examination and personal search, the rights of everyone to freedom and personal inviolability established by Articles 16 and 17 of the Constitution are affected, therefore, in each specific case, it is necessary to check the existence of the grounds provided for in Articles 223 and 252 of the CPC for carrying out these actions, a reasoned decision on their conduct, authorized, if necessary, by the investigative committee. as a judge, compliance with the requirements of the law during their conduct.

      Courts need to distinguish between a personal search, which may be conducted with the approval of an investigating judge, with the exception of the cases provided for in part three of Article 255 of the CPC, from an examination of living persons, which may be conducted without the approval of an investigating judge in the form of a visual inspection.

      It should be borne in mind that in accordance with subparagraph 2) In the third part of Article 255 and Article 132 of the CPC, when detaining a person suspected of committing a criminal offense, in accordance with the procedure provided for in articles 128 and 131 of the CPC, the criminal prosecution authorities have the right to conduct a personal search of him without the authorization of the investigating judge.

      Also, in accordance with subparagraph 16) of paragraph 2 of Article 11 of the Law of the Republic of Kazakhstan "On operational search activities", within the framework of the ongoing general operational search activity, the body carrying out operational search activities within its competence, without the approval of the investigating judge, but with the mandatory participation of witnesses, has the right to inspect the detained person, inspect and seize his belongings and documents, as well as an inspection of residential premises, workplaces and other places, and an inspection of vehicles that may relate to criminal activity.

     The footnote. Paragraph 15, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When assessing the legality of entry into a home, inspection and search, the courts should be guided by the norms of articles 25 of the Constitution and 17 of the CPC on the inviolability of the home, therefore, the above actions can take place only in cases and in accordance with the procedure established by law. The need for strict compliance provided for in articles 197, 198, 199, 219, 220, 224, 252, 254 256 of the CPC of the procedural procedure for carrying out such actions should be considered not only as fulfilling the requirements of the law, but also as a legally guaranteed mechanism for protecting the inviolability of the home and protecting private life, personal and family secrets.

     An inspection and search of a dwelling in the absence of consent from the persons living in it is carried out by a reasoned order of the investigator, authorized by the investigating judge.

      Inspection of residential premises with the consent of adults living in it may be carried out in accordance with articles 219 and 220 of the CPC.

      In accordance with part fourteen of Article 220 of the CPC, if the residential premises are the scene of an incident and its inspection is urgent, then the inspection of the residential premises may be carried out by order of the person conducting the pre-trial investigation, but with the subsequent sending of materials to the investigating judge within a day.

     A copy of the resolution is simultaneously sent to the prosecutor.

     The investigating judge verifies the legality of the inspection and issues a ruling on its legality or illegality, which is attached to the materials of the criminal case.

     If a decision is made on the illegality of the inspection, its results cannot be admitted as evidence in the case.

     The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Since the restriction of a citizen's right to privacy, home, correspondence, telephone conversations, postal, telegraphic and other communications is allowed only in cases and in accordance with the procedure directly established by law (paragraphs 1 and 2 of Article 18, paragraph 1 of Article 25 and Article 39 of the Constitution), the courts should proceed from the fact that promptly-Investigative measures that restrict the aforementioned constitutional rights of citizens may be carried out only if the conditions specified in article 12 of the Law "On Operational Investigative Activities" are met. The list of bodies that have been granted the right to carry out operational investigative activities is contained in article 6 of the aforementioned Law.

      The results of these operational search activities can be used as evidence in cases in accordance with the procedure provided for in Chapter 30 of the Criminal Procedure Code "Covert investigative actions".

      Investigative actions on secret wiretapping and recording of negotiations and conversations are carried out on the basis and in accordance with the procedure provided for in Chapter 30 of the CPC.

     If operational search activities are carried out in violation of the rules established by law or by bodies not authorized to conduct them, all materials obtained as a result of this are subject to recognition as having no force of evidence.

     The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

The courts should check whether, at the pre-trial stage of the criminal process, measures have been taken to ensure the secrecy and non-disclosure of the circumstances of the private life of persons during the inspection, search, seizure, operational search and other measures related to the proceedings. When violations related to non-compliance with the requirements of the Constitution for the protection of the above-mentioned rights are identified, the courts, along with taking legal measures to protect them, must issue private rulings to take appropriate measures.

When considering complaints and petitions against judicial acts, higher judicial authorities, in addition to verifying the arguments given in them, should pay due attention to compliance at the pre-trial and judicial stages of the criminal process with the requirements of the law prohibiting arbitrary restriction of citizens' rights and freedoms.

     The footnote. Paragraph 19 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

According to article 4 of the Constitution, this normative resolution is included in the current law, and is also generally binding and effective from the date of its official publication.

     The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

     Chairman of the Supreme Court of the Republic of Kazakhstan

M. Alimbekov

     Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of the plenary session

J. Baishev

© 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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