On the practice of applying criminal procedure legislation regulating the right to defense
Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated December 6, 2002 No. 26.
The implementation of the constitutional provision on the right of everyone to receive qualified legal assistance, including with the participation of a lawyer (defender), promotes the conduct of legal proceedings on the basis of competition and equality of the parties, establishing the truth in the case, and making a lawful, reasoned court decision.
At all stages of the criminal process, a witness who has the right to defense, a suspect, an accused, a defendant, a convicted person, or a person justified by law is granted and guaranteed the right to protection from criminal prosecution, accusation, and conviction.
A study of judicial practice has shown that during the pre-trial investigation and in the administration of justice, the constitutional norms and requirements of the Criminal Procedure law on the right to defense are respected.
At the same time, there are cases when the authorities conducting criminal proceedings violate the norms governing the right to defense, and lawyers do not fully use the opportunities provided to them to defend themselves.
In order to eliminate the shortcomings and violations of the criminal procedure law, the correct and uniform resolution of issues arising in judicial practice to ensure the right to defense of a witness, suspect, accused, defendant, convicted, acquitted of the right to defense, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
The footnote. The preamble 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).
A witness who has the right to defense, a suspect, an accused, a defendant, a convicted and an acquitted person have the right to defense, recognized and guaranteed by Article 13 and paragraph 3 of Article 16 of the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution) and is one of the principles of criminal procedure provided for in article 26 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC).
The footnote. Paragraph 1 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).
The right of a witness entitled to defense, a suspect, an accused, a defendant, a convicted person, or an acquitted person to defense is the totality of all the procedural possibilities provided by law to refute suspicion or mitigate responsibility and punishment, as well as the right of an acquitted person to compensation for harm caused by unlawful detention, the issuance of a ruling on the qualification of the suspect's act, the application of a preventive measure., trial and conviction.
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).
Ensuring by the bodies conducting the criminal process the right of a witness entitled to defense, a suspect, an accused, a defendant, a convicted person, an acquitted person to defense, together with other principles of the criminal process, is a guarantee of a fair trial and making the right decision on the case. Therefore, a violation of the right to defense may entail the consequences provided for in article 9 of the CPC.
The footnote. Paragraph 3 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).
A lawyer participates as a defender, and the persons specified in the second part of Article 66 of the CPC may also be admitted, who are entitled to participate in the case as defenders only along with a lawyer.
The suspect (a witness entitled to defense, the accused, the defendant, the convicted, the acquitted) has the right to invite several lawyers to defend themselves as defenders. Along with a lawyer (several lawyers), only one of the persons listed in the second part of Article 66 of the CPC can additionally defend him. If several persons wish to act as a defender, then the choice of a defender from among them belongs to the defendant himself.
The footnote. Paragraph 4 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 12/11/2020 No. 6 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication publications).
A lawyer enters the case as a defender upon presentation of a lawyer's certificate and a written notice of the protection of the relevant person. The demand for other documents confirming the lawyer's authority to conduct a specific case is not allowed.
Other persons listed in the second part of Article 66 of the CPC submit documents confirming their right to participate in criminal proceedings as a defender (marriage certificate, document confirming kinship with a witness entitled to defense, suspect, accused, convicted, acquitted, decisions of the bodies performing guardianship and trusteeship functions).
The footnote. Paragraph 5 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (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 06/25/2010 No. 9 (for the procedure of entry into force, see paragraph 2).
Foreign lawyers may participate as defenders only on the basis of an international agreement between the Republic of Kazakhstan and the relevant State on a reciprocal basis.
The powers of a foreign lawyer who carries out his activities must be confirmed by an identity card, a document establishing the status of a lawyer, as well as an agreement on the provision of legal assistance concluded between an attorney and a witness entitled to defense, a suspect, an accused, a defendant, convicted, acquitted.
The footnote. Paragraph 7 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).
Authorities conducting criminal proceedings must strictly comply with the law's requirement for the mandatory participation of a defense attorney in cases provided for in article 67 of the CPC. Failure to comply with the provisions of this rule should be considered as a significant violation of the procedural law, and the collected materials may be deemed to have no force of evidence.
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).
It should be borne in mind that a violation of the right to defense may be recognized not only by the failure of a witness who has the right to defend a suspect, accused, defendant, convicted, acquitted, defender, but also any restrictions on their procedural rights, in particular, to use their native or other language they speak, to testify, to present evidence, submit petitions, participate in the examination of evidence and in court debates, pronounce the last word, bring complaints about the actions and decisions of the bodies conducting the criminal process and others.
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).
Since the law does not specify a list of physical and mental disabilities that serve as the basis for the mandatory participation of a defense lawyer, in each specific case it should be based on whether a witness who has the right to defense, a suspect, an accused, a defendant, a convicted and acquitted person has a real opportunity to fully exercise the right to defense himself, or the degree of his shortcomings is such that they significantly complicate the use of the rights granted to him by law.
Persons who, due to physical or mental disabilities, cannot exercise their right to protection themselves should also include those who have a mental disorder that does not exclude sanity, as well as those suffering from a significant speech, vision, hearing, or other serious illness.
If there is doubt about a person's ability to independently protect their rights and legitimate interests due to mental or physical disabilities, in accordance with paragraph 4 of the first part of Article 271 of the CPC, it is mandatory to appoint and conduct an expert examination.
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).
The requirement of the law to provide a suspect with a lawyer should be strictly observed from the moment of performing any action provided for in the first part of Article 64 of the CPC until the announcement of the decision on the qualification of the suspect's act.
In order to comply with these requirements, the body conducting the criminal proceedings must issue an appropriate resolution on admission as a defender of the person specified in the second part of Article 66 of the CPC, and in respect of the lawyer, a resolution recognizing the lawyer who entered the case as a defender. A written notice of protection and documents of another person admitted as a defender are attached to the case.
The footnote. Paragraph 11, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
From the moment a lawyer enters the case as a defender, the body conducting the criminal process is obliged to provide the suspect with a real opportunity to have private and confidential meetings with the defender before the first interrogation, without limiting their number and duration.
The footnote. Paragraph 12, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
In order to ensure the exercise of the right to defense, as well as to create conditions for the defender to perform the function of protection, the bodies conducting the criminal process are obliged to find out from the defenders and their clients in which procedural actions they consider it necessary to participate jointly, and to provide them with such an opportunity.
As a rule, the defense attorney must participate in explaining the rights of the suspect and his interrogation, verifying and clarifying testimony on the spot, conducting an investigative experiment, conducting identification, confrontations, questioning by the prosecutor and choosing a preventive measure, forming questions about the appointed examination and, with the involvement of a specialist, at the stages of completion of the pre-trial investigation and trial.
The participation of a prosecutor in a procedural action or the commission of procedural actions by him during the pre-trial proceedings in a case does not exclude the participation of a defender if his presence is expressly provided for by law.
The defender has the right to participate in all investigative and procedural actions conducted with the participation of the defendant, as well as in other procedural actions performed at the request of the latter, or at the request of the defender himself.
The petition of the defender for participation in the ongoing investigative and procedural actions is attached to the case.
A witness who has the right to defense, a suspect, an accused, a defendant, a convicted person, or an acquitted person retains all their rights to defense, regardless of the participation of their defenders in criminal proceedings, and their diminution is a violation of the right to defense.
The footnote. Paragraph 13, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
The body conducting the criminal process must explain to the suspect, the accused, and the defendant the right to appoint a defense attorney for him, regardless of whether he has the means to pay.
The refusal of a lawyer may take place at any stage of the proceedings, but only on the initiative of the suspect, the accused, the defendant in the presence of a lawyer and it should not be associated with a lack of funds to pay for legal aid. If there is an actual lack of funds to pay a lawyer, the refusal of a lawyer should be recognized as forced and not accepted.
It is the prerogative of the body conducting the criminal proceedings to decide whether to accept the refusal of a defender.
The decision on the request to dismiss a defender is drawn up in accordance with part six of Article 99 of the CPC by a reasoned decision, which the defender, the suspect, the accused, and the defendant are immediately subject to review, certifying this with their signatures. The presence of a defender is confirmed by attaching to the materials of the criminal case a written notice of protection or a copy of the relevant document of another person admitted as a defender.
The footnote. Paragraph 14, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
The refusal of a defender is not accepted in the cases specified in the first part of Article 67 of the CPC.
The refusal of a defense lawyer may also not be accepted due to certain circumstances of the case (a large amount of charges, a significant number of persons being held accountable, the presence of materials in the case, the study of which is difficult for the suspect, the accused, the defendant, etc.).
The removal of a defender from participation in the proceedings on the grounds specified in the first part of Article 94 of the CPC does not relieve the body conducting the criminal process from the obligation to provide another defender to the suspect, accused, defendant, convicted, acquitted.
When a defender is removed from participation in a case, the body conducting the criminal process issues a decision, which may be appealed in pre-trial proceedings in accordance with Article 106 of the CPC, and during the trial, according to the rules of Article 422 of the CPC.
The footnote. Paragraph 15, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
Forcing a witness who has the right to defend a suspect, accused, or defendant to testify, to admit the charges against him, to produce physical evidence, or to commit other acts involving a violation of his right not to testify against himself should be considered a significant violation of the right to defense.
In this regard, the statement of a witness entitled to defense, a suspect, an accused, a defendant, a convicted person about the use of illegal methods by pre-trial investigation bodies is subject to thorough verification and, if confirmed, the relevant case materials as obtained in violation of the requirements of the procedural law must be recognized as having no force of evidence.
The footnote. Paragraph 16, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
A suspect, accused, defendant, convicted, acquitted in accordance with article 31 of the CPC must be informed of the right and procedure for appealing against the actions and decisions of the body conducting the criminal process, established by the criminal procedure law.
The footnote. Paragraph 17 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).
Violation of the right to defense of a suspect, accused, or defendant is not an obstacle to the appointment of the main trial. The materiality of such a violation should be taken into account during the main trial when assessing the admissibility and reliability of evidence and their sufficiency to resolve the issue of the defendant's guilt or innocence.
The footnote. Paragraph 18 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
In cases where a violation of the right to defense committed by the pre-trial investigation authorities is the basis for declaring the evidence collected in the case inadmissible and the prosecution has not provided other evidence of the defendant's guilt, the court is obliged to pass an acquittal.
The footnote. Paragraph 19 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).
Courts should take into account that the defendant participates in court arguments regardless of whether he has a defense attorney. Depriving a defendant of this right, as well as not giving him the last word, and restricting the presentation of arguments on charges are violations of the right to defense, which, in accordance with article 436 of the CPC, leads to the cancellation of the sentence.
The footnote. Paragraph 20 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).
Courts should keep in mind that depriving a convicted (acquitted) person of the right to receive a copy of the verdict (resolution) in the language he or she speaks, to get acquainted with the minutes of the court session and to make comments on it, to get acquainted with the complaints (petition of the prosecutor) of other participants in the process and to bring objections to them, illegal refusal to accept complaints and objections. it is a violation of the right to protection.
Failure to explain to an acquitted, accused (suspect), or defendant, in respect of whom a decision has been issued to terminate criminal prosecution, the right to compensation for damage caused as a result of illegal actions by the authorities conducting criminal proceedings, is also considered a violation of the right to defense.
These violations do not entail the annulment of a court verdict if it is decided on the merits correctly.
The footnote. Paragraph 21 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
A defender in the interests of a convicted or acquitted person has the right, on his own initiative, to appeal a court decision in a case in which the court has committed significant violations of procedural rights, leading to the cancellation of an illegal decision. The court is obliged to acquaint the convicted (acquitted) person with this complaint and explain to him the right to withdraw this complaint.
The court of first instance is obliged to explain to the convicted person in custody the right to participate in the meeting of the appellate instance if the complaint or the petition of the prosecution raises the issue of the deterioration of his situation. The objections of the convicted person and his opinion regarding participation in the board meeting are attached to the case file.
Participation in a court of appeal hearing of a convicted person, in respect of whom the issue of deterioration of his situation is being raised, if there is a request, is an additional guarantee for a comprehensive, complete investigation of the circumstances of the case and an objective resolution of the complaint or petition of the prosecutor.
The courts of appeal and cassation instances must carefully check whether the courts of first instance have complied with the requirements of the law ensuring the exercise of the specified right of the convicted (acquitted).
The participation of a defender in an appellate instance is ensured in the cases specified in article 67 of the CPC and in accordance with the procedure provided for in part four of Article 428 of the CPC.
The participation of the defender in the cassation instance is carried out in the cases provided for in the first part of Article 67 of the CPC. In cases where the case is considered at the request of the victim (civil plaintiff), their representatives, or the prosecutor's request, which raises the issue of worsening the situation of the convicted, acquitted person, the participation of a defense attorney in the cassation instance is mandatory.
The footnote. Paragraph 23 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 9 (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); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
In case of refusal of the convicted, acquitted defender in the appellate or cassation instance and withdrawal of the complaint (petition) filed by him, the proceedings initiated on the complaint (petition) of the defender are terminated, unless there are other grounds provided by law for the consideration of the case. If the refusal of the defender is not accepted, the complaint (petition) together with the case is considered on the merits. A resolution is issued on the decisions taken.
If the complaint (petition) is filed by a defense attorney who participated in the court of first instance, and after sentencing, another defense attorney participates in the case, the latter has the right to submit an addendum to the appeal (petition) with new arguments or changes to previous arguments.
The footnote. Paragraph 24 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 9 (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).
Courts should keep in mind that when considering issues related to the execution of sentences against convicted persons, the participation of a defense lawyer is mandatory in cases provided for in the first part of Article 67 of the CPC. Failure to comply with the specified requirement of the law is a violation of the right to protection, which entails the cancellation of the decision adopted by the court.
The footnote. Paragraph 25 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 considering criminal cases, the courts of appeal and cassation instances should carefully check whether the body conducting the criminal process has ensured the right to defend the suspect, accused, defendant, convicted, acquitted, and not leave such violations of the law without response.
If the facts of improper performance of their duties by lawyers are discovered (formal participation, signing blank forms of procedural actions, ignoring violations of legality committed during criminal proceedings, etc.), the courts have the right to respond by issuing private rulings.
The footnote. Paragraph 26, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 9 (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).
To explain to the courts that when making a decision to pay for legal assistance from a lawyer at the expense of budgetary funds, at the same time it is necessary to resolve the issue of reimbursing the state for the procedural costs associated with this payment by collecting them from the convicted person by virtue of Article 178 of the CPC, except in cases specified in part four of the said norm.
Exemption from reimbursement of expenses to the State is allowed in cases where the defender participated in the case in accordance with part three of article 67 and part two of Article 76 of the CPC.
The amount to be paid to a lawyer must be calculated at an hourly rate calculated as a percentage of the minimum wage established by the legislation of the Republic of Kazakhstan.
The footnote. Paragraph 27 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 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.
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
