On the review of compliance with the Constitution of the Republic of Kazakhstan of part four of Article 107 and paragraph 3) of part two of Article 484 of the Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014

Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated August 17, 2023 No. 25-NP

     The Constitutional Court of the Republic of Kazakhstan, composed of Chairman Azimova E.A., judges Eskendirov A.K., Zhakipbaev K.T., Zhatkanbayeva A.E., Musin K.S., Nurmukhanov B.M., Sarsembaev E.Zh. and Udartseva S.F., with the participation of:

     the subject of the appeal, V.A. Miller, and his representative, lawyer A.Zh. Sekerov.,

      representatives:

     Judicial Administration of the Republic of Kazakhstan – Deputy Head Musralinov A.S.,

     Ministry of Justice of the Republic of Kazakhstan – Vice Minister Mukanova A.K.,

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

      In an open meeting, he considered the appeal of Miller V.A. on checking for compliance with the Constitution of the Republic of Kazakhstan, part four of Article 107 and paragraph 3) of part two of Article 484 of the Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014 (hereinafter referred to as the CPC).

      Having heard the report of the speaker, Judge of the Constitutional Court of the Republic of Kazakhstan K.S. Musin, having studied the materials of the constitutional proceedings and 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 has accepted an appeal for consideration of compliance with the Constitution of the Republic of Kazakhstan with part four of Article 107 and paragraph 3) of part two of Article 484 of the CPC.

      It follows from the appeal that in 2020, based on the application of the subject of the appeal, the Police Department of the Akmola region launched a pre-trial investigation under part two of Article 190 of the Criminal Code of the Republic of Kazakhstan dated July 3, 2014 against Babayan A.O. and others.

      Subsequently, the pre-trial investigation was terminated in accordance with paragraph 2) the first part of Article 35 of the CPC for the absence of corpus delicti. This decision was supported by the prosecutor's office of the Arshaly district of the Akmola region, and the prosecutor refused to satisfy the applicant's complaint against the decision of the pre-trial investigation body.

      By the decision of the investigating judge of the Arshaly District Court dated April 7, 2022, the complaint of the author of the appeal was partially satisfied, the decisions of the investigator to terminate the criminal case and the prosecutor of the Arshaly district to dismiss the complaint were canceled.

      By the decision of the judicial board for criminal Cases of the Akmola Regional Court dated April 19, 2022, adopted at the request of the prosecutor, the decision of the district court was overturned, the complaint was denied.

      The Supreme Court returned the petition of the subject of the appeal for making a submission on reviewing the decision of the regional court without consideration in accordance with the requirement of paragraph 3) of the second part of Article 484 of the CPC.

      According to the author of the appeal, the impossibility of appealing a judicial act rendered in accordance with article 107 of the CPC deprives him of a legal guarantee of the exercise of everyone's constitutional right to judicial protection of their rights and freedoms.

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

The Basic Law, along with other human and civil rights, establishes in paragraph 2 of article 13 the right of everyone to judicial protection of their rights and freedoms. In accordance with paragraph 3 of article 39 of the Constitution, it refers to rights that are not subject to restriction in any case.

      The constitutional guarantee of everyone's right to judicial protection correlates with the provisions of the International Covenant on Civil and Political Rights of December 16, 1966, ratified by the Law of the Republic of Kazakhstan dated November 28, 2005, according to which the State is obliged to ensure the exercise of the right to judicial protection, which must be fair, competent, complete and effective, and must provide any person whose rights and freedoms have been violated with an effective remedy, even if the violation has been committed by individuals, acting in an official capacity (articles 2, 14).

      As the Constitutional Court noted earlier, "The Constitution establishes legal norms that are fundamental to all legislation. The legal norms of the Constitution are the basis for the formation and development of all normative legal acts regulating constitutional and legal relations. In this regard, the Constitution does not define the procedure for judicial protection ..." (Regulatory Decree No. 16-NP dated May 22, 2023).

      A similar position was held by the Constitutional Council, which pointed out that "the Constitution of the Republic of Kazakhstan, recognizing in paragraph 2 of Article 13 the right of every person and citizen to judicial protection of their rights and freedoms, does not define the procedure for reviewing court rulings" (normative resolution No. 1/2 of February 24, 1997).

     These issues fall within the competence of the Parliament of the Republic, which has the right to issue laws regulating the most important public relations, establishing fundamental principles and norms concerning the judicial system and judicial proceedings (subparagraph 6) of paragraph 3 of Article 61 of the Constitution).

      In accordance with paragraph 2 of article 75 of the Constitution, judicial power is exercised through civil, criminal and other forms of legal proceedings established by law.

      In the criminal procedure law of the Republic of Kazakhstan, the constitutional right to judicial protection, as well as the above-mentioned international obligations, which, in accordance with paragraph 1 of Article 4 of the Constitution, are an integral part of the current law, are implemented by the legislator by including in the CPC a mechanism for the protection of human rights and freedoms during a pre-trial investigation. In addition to prosecutorial supervision, there is an institution of judicial control over the legality of decisions and actions (inaction) of pre-trial investigation bodies, carried out by an investigating judge.

      According to the third part of Article 54 of the CPC, an investigating judge is a judge of the court of first instance, whose powers include exercising judicial control over the observance of the rights, freedoms and legitimate interests of persons in criminal proceedings in accordance with the procedure provided for by this Code.

     The activities of this institution are an important guarantee of the realization of everyone's right to judicial protection from illegal decisions, actions and arbitrariness on the part of criminal prosecution authorities. The investigating judge does not resolve the question of the guilt or innocence of the suspect (accused). The judicial control carried out by him is an independent function of the judiciary, aimed primarily at preventing violations of the rights and legitimate interests of individuals at the stage of pre-trial proceedings or their immediate restoration.

      Judicial control in pre-trial proceedings is carried out in the preliminary and subsequent procedures.

      Preliminary judicial control is aimed at monitoring the legality of procedural actions that restrict constitutional rights and freedoms in criminal proceedings (for example, authorizing preventive measures and investigative actions), while subsequent judicial control is aimed at restoring violated constitutional rights and freedoms.

       Judicial control, laid down by the legislator in article 106 of the CPC, is subsequent when the investigating judge examines complaints from participants in the criminal process, including actions (inaction) and decisions of persons conducting a pre-trial investigation. Based on the results of consideration of the complaint, the investigating judge recognizes the actions (inaction) or decisions of the relevant official as illegal or unfounded, cancels them or obliges them to eliminate the violation or leaves the complaint without satisfaction.

      In accordance with articles 107 and 415 of the CPC, a decision issued by an investigating judge may be appealed to a regional or equivalent court. In this case, the suspect, his defender, legal representative, victim, his legal representative, representative, a person whose rights and freedoms are directly affected by the act of the investigating judge, and the prosecutor have the right to file a petition.

      Thus, the introduction into the criminal process of the institution of an investigative judge with the authority to exercise judicial control covering the entire scope of pre-trial proceedings, the procedural consolidation of the possibility of appealing the decision of the investigating judge to a higher court, meets the constitutional guarantee of ensuring everyone's right to judicial protection.

The fifth part of Article 107 of the CPC provides that the decision of the judge of the regional or equivalent court, issued as a result of consideration of the complaint, the petition of the prosecutor, enters into force from the moment of announcement.

      Paragraph 3) of the second part of Article 484 of the CPC excludes the decisions of the investigating judge from the list of judicial acts that can be reviewed in cassation.

      The institution of cassation proceedings is the most important guarantee for the protection of human rights and freedoms, and in case of their violation by lower courts, it is the main way to restore them. At the same time, the main task of the cassation court is to verify the correctness of the application of substantive and procedural law and, through this, to establish a unified judicial practice that complies with constitutional principles.

     In the opinion of the Constitutional Court, the entry into force of the decision of the investigating judge after checking its legality and validity by a regional or equivalent court, as well as the exclusion of the decision of the investigating judge from the list of judicial acts that can be reviewed in cassation, cannot be considered as a restriction of everyone's right to judicial protection of their rights and freedoms.

The main purpose of pre-trial proceedings is to prepare a criminal case for the main trial. Therefore, the legality of the actions and decisions of the bodies conducting the criminal process is checked primarily during the subsequent consideration of the case in court on the merits.

      The Constitutional Court also takes into account the additional guarantees established by the legislator in Article 107 of the CPC for the objective, impartial and speedy consideration of complaints against the decisions of the investigating judge. In particular, the CPC provides for a shortened (no later than three days) time limit for accepting a complaint and verifying by a higher court the legality and validity of the decision, the sanction of the investigating judge; consideration of the complaint at a court hearing.; participation in the court session of the prosecutor, the suspect, his defender and legal representative, the victim, his legal representative and other persons whose rights and interests are affected by the appealed decision. The influence of officials of the body conducting the pre-trial investigation has been minimized by excluding them from the list of participants in the court session.

     Taking into account the competence and powers of the investigating judge, the existence in the CPC of a direct prohibition on the prejudging by the investigating judge of issues that may be the subject of judicial review when resolving a criminal case on the merits, a prohibition on conclusions about the evidence or lack of proof of guilt, the admissibility or inadmissibility of the evidence collected and the establishment of regulatory limits for judicial review, the legislator, providing for the possibility of appealing the acts of the investigating judge to a higher court, proceeding from the fact that the said judicial acts are interim, They do not resolve the case on its merits and do not affect the content of the final decision to be taken in the criminal case.

     When developing the CPC, the experience of foreign countries was taken into account, where there is an optimization of the procedure for reviewing judicial acts and setting limits on appealing against the decision of the investigating judge in order to exclude abuse of the right to appeal and speed up the resolution of the complaint and the execution of the judicial act. In this regard, the legislator, within the framework of his constitutional powers, has established such institutional and procedural conditions for reviewing judicial acts of an investigating judge that meet the requirements of procedural efficiency, economy in the use of judicial remedies, and exclude the possibility of delaying or unjustifiably resuming judicial proceedings.

      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 and subparagraph 2) Paragraph 1 of Article 65 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Constitutional Court of the Republic of Kazakhstan", the Constitutional Court of the Republic of Kazakhstan

      Decides:

To recognize the fourth part of Article 107 and paragraph 3) of the second part of Article 484 of the Criminal Procedure Code of the Republic of Kazakhstan as corresponding to the Constitution of the Republic of Kazakhstan.

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.

     Constitutional Court of the 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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