On the observance of the principle of transparency of criminal proceedings

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 6, 2002 No. 25.

     The study of judicial practice of observing the principle of transparency of legal proceedings has shown that the courts of the republic consider the vast majority of criminal cases in open court sessions, and when conducting closed court sessions they are guided by the requirements established by law. However, there are cases of unlawful restrictions on the publicity of court proceedings.

     In order to comply with the rule of law in the administration of justice, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

The principle of transparency of judicial proceedings, enshrined in article 29 of the Code of Criminal Procedure (hereinafter referred to as the CPC), together with other principles ensures the fulfillment of the tasks of the criminal process aimed at exposing and bringing to justice those who committed crimes and at a fair trial. In this regard, courts need to implement this principle more widely, to ensure the possibility of free access to courtrooms for all interested persons, including representatives of the media.

The courts are obliged to strictly comply with the requirements of the Criminal Procedure Law on the open trial of cases in all judicial instances and to prevent violations of the principle of transparency of proceedings, unjustified refusal of citizens to be present in the courtroom.

     Illegal restriction of publicity (unjustified classification of case materials, holding closed meetings on grounds not provided for by law, etc.) may lead to diminution and infringement of the procedural rights of participants in the process.

     Depending on the nature and materiality of these violations, the proceedings in the case may be declared invalid, with the annulment of the decision, or the collected materials may be declared invalid as evidence.

The transparency of legal proceedings should be understood not only as the conduct of an open trial, but also as ensuring the participation of the parties in it, and the possibility of the presence of other persons not involved in the case. Transparency implies that the participants in the process have access to all case materials, including those obtained during operational search activities, and to the instructions of the prosecutor given during the pre-trial investigation (except in cases provided for by law). In addition, this principle includes the public proclamation of a court decision, notification and familiarization of the parties with the complaints received from other participants in the process, awareness of the time and place of consideration of the case in a court of any instance, the creation of a unified database of judgments and court decisions that have entered into force and free access to them, the availability of information on the execution of judicial acts.

    The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).

The limits of publicity at the pre-trial stages of the proceedings in accordance with article 201 of the CPC are determined by the prosecutor, and at the court session - by the court.

    The court, at the request of the parties or on its own initiative, when appointing the main trial, with the relevant grounds given in the decision, is obliged to resolve the issue of open or closed consideration of the case.

    The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of its official publication).

The participants in the trial may file petitions to restrict the publicity of the trial both at the stage of the appointment of the main trial (preliminary hearing of the case) and during the main trial.

     Other persons, including representatives of the mass media, are not entitled to file petitions for consideration of cases in open or closed court session.

Petitions for restriction of publicity are subject to satisfaction only in the presence of the circumstances specified in the first part of Article 29 of the CPC, in order to protect state secrets, prevent disclosure of information about intimate aspects of the lives of persons involved in the case, ensure the safety of victims, witnesses and other persons, their family members or close relatives, and protect the interests of juvenile defendants. In accordance with part six of Article 106 of the CPC, complaints are considered by the investigating judge alone without holding a court session. If it is necessary to investigate the circumstances relevant to making a lawful and reasoned decision, the investigating judge examines the complaint in a closed court session with the participation of the relevant persons and the prosecutor, whose non-appearance does not interfere with the consideration of the complaint. By order of the investigating judge, the court session may be held via video link.

    The footnote. Paragraph 6, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication).

The restriction on the publicity of the trial may extend to the entire period of the court session or to that part of it in which the circumstances specified in the first part of Article 29 of the CPC are investigated, as should be indicated in the decision.

     If there are grounds for conducting a closed trial in relation to individual defendants in connection with the protection of state secrets, but these circumstances do not apply to other defendants, the court has the right to separate another criminal case from the criminal case into separate proceedings, which is subject to consideration in a closed court session.

     If the separation of the case affects the comprehensiveness, completeness of its investigation and resolution, then the production of such a procedural action, in accordance with part four of Article 44 of the CPC, is not allowed. In this case, the court, in accordance with the first part of Article 29 of the CPC, decides whether to hold a closed trial in the case as a whole.

    The footnote. Paragraph 7, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication).

At the opening of the main trial, the presiding judge announces the consideration of the case in an open or closed court session. A corresponding entry is made in the minutes of the court session.

     When a petition is received in the main court proceedings to consider the case in a closed court session, the court is obliged to find out from the person who filed the petition on what grounds provided by law the issue of restricting the publicity of the trial and the opinion of other participants in the process is being raised. If the court made a decision on the filed petition while conferring on the spot, it is recorded in the minutes of the court session, but if the petition is considered in the conference room, the court issues a ruling in the form of a separate procedural document.

In accordance with the requirements of Article 347-1 of the CPC, the recording of the course of the court session is carried out by the secretary of the court session using audio and video recordings. The inability to use audio and video recording facilities due to a technical malfunction of the equipment does not exclude the continuation of the court session with the mandatory reflection of the reasons for not using audio and video recordings in the minutes of the court session.

    The use of audio and video recordings by the court in court sessions is used only for the purposes of judicial proceedings to accurately record the course of the trial, as well as to establish factual data on the case, which also ensures that the court implements the principle of transparency.

    The footnote. Paragraph 9 as amended by the regulatory decree 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 presiding judge may, with the consent of the participants in the proceedings, authorize the photographing, use of audio and video recordings during the entire main trial, as well as in a certain part of the main trial, or in relation to certain participants in the process and other persons. These actions should not interfere with the normal course of the trial.

    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).

All orders of the presiding judge regarding the use of audio and video recordings in the courtroom are indicated in the minutes of the court session.

     Based on the provisions of Article 57 of the CPC that the orders of the chairman of the court session are binding on all participants in the process and other persons present in the courtroom, his order to prohibit or stop audio and video recordings must be executed.

     Insubordination to the orders of the chairman entails the application of measures provided for in article 346 of the CPC, and in cases of violation of the constitutional rights to privacy, personal and family secrets, the perpetrators may be held accountable as prescribed by law.

The footnote. Paragraph 11, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 4 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication).

In accordance with part three of Article 415 and part two of Article 448 of the CPC, court decisions on the issue of publicity of the trial, adopted during the court session, are not subject to separate appeal and appeal. Objections to them can be stated in appeals, protests brought against the verdict.

    The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 4 (effective from the date of official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2017 No. 3 (effective from the date of the first official publication).

When considering cases, the appellate and cassation instances should pay attention to the fulfillment by lower courts of the requirements of the law on the transparency of judicial proceedings, and respond appropriately to each violation.

    The footnote. Paragraph 13, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 8 (for the procedure of entry into force, see paragraph 2); dated 03/31/2017 No. 3 (effective from the date of the first official publication).

According to 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 effective from the date of its official publication.

Chairman of the Supreme Court

Republic of Kazakhstan

Judge of the Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

© 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  

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases