On the application in criminal proceedings of certain norms of legislation regulating the protection of State secrets

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2013 No. 3.

     In order to ensure the correct and uniform application of the legislation of the Republic of Kazakhstan on the protection of state secrets, the plenary session of the Supreme Court of the Republic of Kazakhstan

      Decides:

To clarify that in accordance with Article 1 of the Law of the Republic of Kazakhstan dated March 15, 1999 No. 349-1 "On State Secrets" (hereinafter - State secrets are information protected by the state that constitutes state and official secrets, the dissemination of which is limited by the state in order to carry out effective military, economic, scientific, technical, foreign economic, foreign policy, intelligence, counterintelligence, operational-investigative and other activities that do not conflict with generally accepted norms of international law.

The amount of damage caused by crimes provided for in Articles 185, 186 and 458 of the Criminal Code of the Republic of Kazakhstan (hereinafter – The Criminal Code) is established in accordance with the approved Resolution of the Government of the Republic of Kazakhstan dated July 17, 2003 No. 701 "Rules for determining the amount of damage caused or likely to be caused to the national security of the Republic of Kazakhstan or the interests of government agencies and organizations as a result of disclosure or loss of information constituting state secrets, as well as damage caused to the owner of information carriers in as a result of their secrecy" (hereinafter referred to as the Rules).

     The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

The amount of damage is determined at the stage of pre-trial proceedings in a criminal case by the permanent commission for the Protection of State Secrets (hereinafter referred to as MPC) of a government agency or organization. In the absence of MPC in the organization, the amount of damage is determined by an expert commission established by order of the head of the organization in which the information was lost or disclosed (hereinafter referred to as the expert commission).

When determining the amount of damage in a criminal case, the MPC or the expert commission should be guided by the provisions of paragraph 8 of the Rules. If paragraph 9 of the Rules is applied, the MPC or the expert commission must necessarily take into account the indicators provided for in paragraph 8 of the Rules, indicating in its conclusion the grounds and motives for taking these indicators into account.

The body conducting the criminal proceedings, in cases where the previous conclusion of the expert commission is insufficiently substantiated or its conclusions are in doubt, appoints a second expert study to determine the amount of damage, which is entrusted to the interdepartmental expert commission. The composition of the specified commission is formed from members of the MPC or the expert commission of the state bodies of the Republic of Kazakhstan, authorized to dispose of information constituting state secrets.

The grave consequences provided for in Articles 185, 186 and 458 of the Criminal Code should include the transfer of information into the possession of foreign intelligence services, terrorist and extremist organizations or organized criminal groups, damage to the foreign policy interests or national security of the Republic of Kazakhstan, disruption as a result of criminal actions of the program of global scientific research, government events and international negotiations, relocation of a regime facility, death, serious injury to health, or arrest of law enforcement and special government officials, persons providing confidential assistance to these bodies, as well as their family members, etc.

     The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

Criminal proceedings should be conducted in strict compliance with the legislation governing the protection of State secrets. If the materials of the criminal case contain information constituting state secrets, the body conducting the criminal process must issue an appropriate resolution restricting access to them, notify the participants in the criminal process in writing and explain to them the procedure for access to such information.

     In order to exclude the possibility of unauthorized access to information constituting state secrets by persons who do not have the appropriate security clearance, it is recommended that the materials of the criminal case containing state secrets be attached to the case separately from unclassified materials (in separate volumes).

The trial of criminal cases in all courts and in all judicial instances takes place openly. Restriction of the publicity of judicial proceedings is allowed on the basis of a court order in cases where this is contrary to the interests of protecting state secrets.

      The first part of Article 29 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) also provides for other grounds for conducting a closed trial. The list of grounds indicated in it is exhaustive and is not subject to extensive interpretation.

      In the absence of the grounds provided for in the first part of Article 29 of the CPC for restricting the publicity of judicial proceedings, including those related to the protection of state secrets, in a criminal case, the mere fact that a person has committed a serious or especially serious crime, such as banditry, terrorism, etc., is not a circumstance for conducting a closed trial.

     The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

In accordance with the requirements of part five of Article 47 of the CPC, evidence containing information constituting state secrets is examined in a closed court session. It is attended only by participants in the process who have access to state secrets in the appropriate form.

     Access to state secrets prior to a court session is issued by the authorized body for ensuring the activities of the court (the court staff) - in relation to judges, jurors, the secretary of the court session and other employees of the court, the prosecutor's office - in relation to the public prosecutor, the judicial authorities - in relation to lawyers and other participants in the criminal process. It is not allowed to restrict the granting of access to state secrets to lawyers due to the lack of a reserve or for other reasons not provided for by law.

      In the case of replacement of the defense counsel in the trial and the entry into the case of another lawyer who does not have access to state secrets, the court postpones the trial in order for the lawyer to obtain the appropriate admission. At the same time, the court's decision, in accordance with the first part of Article 341 of the CPC, establishes the period for which the trial is postponed, as well as the period during which the judicial authorities are required to resolve the issue of obtaining access to state secrets in relation to a lawyer.

     When examining evidence in closed court proceedings containing information constituting state secrets, the presiding judge takes measures to exclude the disclosure of state secrets by bailiffs, escorts and other persons providing for the court session.

     The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

In accordance with the third part of Article 29 of the CPC, the verdict of the court and the decisions adopted in the case are publicly announced in all cases. In cases considered in closed court, only the introductory and operative parts of the verdict are publicly announced.

  The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

Information on the organization and tactics of conducting operational search activities (hereinafter referred to as OPM) may constitute an official or state secret in accordance with departmental acts containing a list of information subject to secrecy developed by state bodies in accordance with the procedure determined by the Government of the Republic of Kazakhstan.

     In this regard, materials obtained in the course of operational investigative activities are used in the process of proving criminal cases, provided they are collected, verified and evaluated in accordance with the provisions of the CPC and the legislation of the Republic of Kazakhstan regulating the protection of state secrets.

      If it is necessary to use the results of operational investigative activities in criminal proceedings, the body conducting the criminal proceedings issues a resolution on the declassification of information constituting state secrets, taking into account the requirements of article 22 of the Law on State Secrets and article 239 of the CPC.

     The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

The criminal prosecution authorities shall attach to the criminal case the materials of operational investigative activities as material evidence and (or) documents in accordance with articles 118 and (or) 120 of the CPC and in compliance with the requirements of articles 47 and 97 of the CPC.

     The inclusion of physical evidence and documents obtained as a result of operational investigative activities in the inventory of criminal case materials is mandatory.

      Failure to comply with the provisions of the criminal procedure law specified in this paragraph, in accordance with the requirements of article 112 of the CPC, entails the recognition of factual data obtained in the course of operational investigative activities as inadmissible as evidence.

     The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

When examining and evaluating evidence, including factual data obtained as a result of operational investigative activities, the court has the right, subject to the provisions of part eight of Article 115 of the CPC, to interrogate an employee of the body carrying out operational investigative activities as a witness. With the consent of a person who provides confidential assistance to bodies engaged in operational investigative activities, this person may also be questioned as a witness in accordance with part eight of Article 115 of the CPC. At the same time, the interrogation of these persons as witnesses, if security measures have not been applied to them on the basis of Article 97 of the CPC, is carried out by the court in accordance with the general procedure according to the rules of parts one, two, three, four, five, six of Article 370 of the CPC.

     The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

The interrogation of a witness, in respect of whom procedural security measures have been applied on the basis of a relevant resolution, is carried out in compliance with the rules provided for in article 98 and part seven of Article 370 of the CPC. In this case, before starting the interrogation, the judge (court) must personally identify the witness in the absence of other participants in the process, make sure whether this person can act as a witness, and also verify the validity of the security measures applied to him. Then, in a closed court session, the court has the right to interrogate such a witness according to the rules established by the second part of Article 98 of the CPC, including using the witness's pseudonym or in conditions that exclude his recognition for the rest of those present in the courtroom, or without visual observation by other participants in the trial.

      At the same time, it should be borne in mind that security measures for witnesses and other persons participating in criminal proceedings, in accordance with the first part of Article 96 of the CPC, are applied only if there is a real threat of violence or other acts prohibited by criminal law against these persons.

      In each case of the application of security measures, the courts must check whether the requirements of Article 23 of the Law of the Republic of Kazakhstan dated July 5, 2000 No. 72-II "On State Protection of persons involved in criminal proceedings" have been fulfilled, including the obligation of the body conducting the criminal process, if there are grounds to register in the Unified Register of Pre-Trial investigations in connection with the revealed threat of committing an act prohibited by criminal law against a person participating in the criminal process.

      It is not allowed to variously interrogate a witness both under his real name and under a pseudonym. If a person was interrogated as a witness before a security measure was applied to him, the protocol of his interrogation should be removed from the materials of the criminal case and kept separately from the main proceedings along with other information about the protected person. In the future, his interrogation in this case should be conducted only as a witness under a pseudonym according to the rules established by articles 97 and 98 of the CPC.

     The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

In order to ensure the requirements of the first part of Article 24 of the CPC, the judge, upon his request, in accordance with paragraph 4 of Article 5 of the Law of the Republic of Kazakhstan dated September 15, 1994 No. 154-XIII "On Operational investigative activities" (hereinafter referred to as the Law on the Criminal Police), must additionally provide all available operational and official documents, except for the information about the organization of operational search activities, specific operational search activities, sources and methods of obtaining information.

     At the same time, the court, when examining the requested documents, is obliged to take the necessary measures aimed at excluding the disclosure of the results of operational investigative activities not used in the criminal process, as well as other information that is not subject to declassification, including information about the organization of operational investigative activities, about specific MPas, about sources and methods of obtaining information, etc.

     The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

The circumstances characterizing the identity of the accused are subject to proof in criminal proceedings in accordance with paragraph 5 of the first part of Article 113 of the CPC. Therefore, in cases where the criminal prosecution authorities, with reference to the availability of operational and official documents containing information constituting state secrets, attach certificates of the accused's participation in illegal acts or other data negatively characterizing his personality to the materials of the criminal case, the court also has the right to demand official documents and examine them. Operational information should not be taken into account without confirmation by official documents. At the same time, it should be borne in mind that the fact of a person's participation in an organized group or criminal organization forms part of a criminal offense provided for in the second part of Article 262 of the Criminal Code and is subject to proof in criminal proceedings.

     The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

In criminal cases in which evidence has been obtained as a result of a special operational search measure (hereinafter referred to as SORM), it is mandatory to attach to the case file a resolution on the conduct of this event, authorized by the prosecutor. If the SORM was conducted in accordance with paragraph 6 of Article 12 of the Law on the ORDO without the approval of the prosecutor, then the prosecutor's decision on the legality of the SORM is attached to the materials of the criminal case along with the decision on the conduct of SORM.

     The absence in the materials of the criminal case of a resolution on the conduct of SORM, authorized by the prosecutor, or a prosecutor's decision on the legality of SORM is the basis for recognizing the factual data obtained from the results of SORM as inadmissible as evidence.

After conducting an operational purchase or other OPM (special or general) to document a criminal offense that is not ongoing, but is carried out at a time, for example, the sale of narcotic drugs, repeated OPM against the same person to identify a similar criminal offense is allowed only by issuing an appropriate resolution indicating the grounds provided for by law..

     The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

According to paragraph 1 of Article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and comes into force from the date of its official publication.

K. MAMIE,

Chairman of the Supreme Court

Republic of Kazakhstan

D. NURALIN,

Secretary of the plenary session,

Judge of the Supreme 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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