On the review of compliance with the Constitution of the Republic of Kazakhstan of the second part of Article 80 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 July 20, 2023 No. 24-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., Kydyrbaeva A.K., Musin K.S., Nurmukhanov B.M., Ongarbaev E.A., Podoprigora R.A., Sarsembaev E.J. and Udartseva S.F., with the participation of:
the subject of the appeal is A.M. Auganbayeva.,
representatives:
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.,
National Security Committee of the Republic of Kazakhstan – Head of the Department of Investigation Department I.V. Osipov.,
Anti–Corruption Agency of the Republic of Kazakhstan - Deputy Head of the Pre-trial Investigation Service Muratov A.K.,
Financial Monitoring Agency of the Republic of Kazakhstan – Deputy Head of the Investigative Department K. Bagbanuli,
Ministry of Internal Affairs of the Republic of Kazakhstan – Director of the Legal Department K.S. Dyusembekov,
Republican Bar Association – Deputy chairman Vrancheva I.O.,
I considered in an open meeting the appeal of A.M. Auganbaev on checking for compliance with the Constitution of the Republic of Kazakhstan, part two of Article 80 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.T. Zhakipbayev, 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 received an appeal for consideration of compliance with paragraph 1 of Article 14 and paragraph 2 of Article 83 of the Constitution of the Republic of Kazakhstan, part two of Article 80 of the CPC.
It follows from the appeal and the submitted materials that during the criminal prosecution, the prosecution used the conclusion of specialists, including current employees of the prosecutor's office, as evidence.
The court of first instance recognized the expert opinion as inadmissible evidence and issued an acquittal. Subsequently, the acquittal was overturned by the court of appeal and the subject of the appeal was found guilty of committing the crime charged against him.
According to the subject of the appeal, the second part of Article 80 of the CPC, which allows an employee of an authorized unit of a law enforcement agency or a special state body of the Republic of Kazakhstan to be involved as a specialist in conducting research and giving an opinion, does not comply with the Constitution.
When verifying the constitutionality of the CPC norm in question, the Constitutional Court proceeds from the following.
In accordance with the second part of Article 80 of the CPC, an employee of an authorized unit of a law enforcement agency or a special state body of the Republic of Kazakhstan may be involved as a specialist in conducting research and giving an opinion. This employee must be a person who is not interested in the case and has the special knowledge necessary to assist in the collection, investigation and evaluation of evidence by explaining to participants in the criminal process issues within his special competence, as well as the use of scientific and technical means (part one of Article 80 of the CPC).
The first part of Article 92 of the CPC states that a specialist cannot participate in criminal proceedings if there are circumstances that give reason to believe that he is personally, directly or indirectly interested in this case, as well as if he participated in the proceedings in this criminal case as an inquirer, investigator, prosecutor.
The possession of special knowledge and special competence is crucial for attracting a specialist. According to the third part of Article 117 of the CPC, in his conclusion, among other things, information about education, specialty, work experience in the specialty, academic degree and academic title should be indicated.
The specialist is obliged to participate in the conduct of investigative actions and judicial proceedings, using special knowledge, skills and scientific and technical means to assist in the collection, research and evaluation of evidence (paragraph 2) of the fifth part of Article 80 of the CPC).
It also follows from the content of the second part of Article 80 of the CPC that the functions of an authorized unit of a law enforcement agency or a special state body in which a specialist works should include conducting appropriate research.
In the internal affairs bodies, the function of conducting research is assigned to operational and criminalistic units. The main condition for conducting research by an employee of such a unit is the availability of a qualification certificate for the right to produce a certain type of research and the appropriate methodology.
In other law enforcement and special government agencies, special investigations are also conducted by employees of authorized units.
The Prosecutor's Office, on behalf of the State, carries out, within the limits and forms established by law, supreme supervision over the observance of legality in the territory of the Republic of Kazakhstan, represents the interests of the State in court and carries out criminal prosecution on behalf of the State.
The Prosecutor's Office of the Republic is a single centralized system with subordinate prosecutors subordinate to the higher ones and the Prosecutor General of the Republic. She exercises her powers independently of other State bodies and officials and is accountable only to the President of the Republic (paragraphs 1 and 2 of article 83 of the Constitution).
The assignment of these constitutional functions to the prosecutor's office is conditioned by the goals of protecting a person, his life, rights and freedoms as the highest values of the state, ensuring legality on the territory of the Republic of Kazakhstan, which fully complies with the provisions of articles 1, 4, 12 and 34 of the Constitution.
The unity of the entire system of prosecutor's offices outlined in the Basic Law means their interrelated activities, organized and coordinated by the Prosecutor General's Office of the Republic of Kazakhstan under the leadership of the Prosecutor General.
The content of the constitutional provision on the subordination of prosecutors is disclosed by the legislator in paragraph 2 of Article 5 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Prosecutor's Office" (hereinafter referred to as the Constitutional Law on the Prosecutor's Office) and includes the obligation to follow instructions from higher prosecutors on the organization of work and activities for lower prosecutors, the responsibility of lower prosecutors to higher prosecutors for the performance of official duties. duties and other forms of subordination of subordinate prosecutors.
Of fundamental importance is the requirement of paragraph 4 of article 5 of the Constitutional Law on the Prosecutor's Office that, when exercising supervision, the prosecutor's office does not replace the functions of other State bodies.
When regulating the powers of the prosecutor in laws, including in criminal proceedings, the legislator must take into account the constitutional purpose of the prosecutor's office in order to eliminate the risks of conflict of interest in law enforcement practice. In the legislative regulation of its powers, it is unacceptable to adopt norms that infringe on the constitutional provision on the independent exercise of its powers by the Prosecutor's Office and its accountability only to the President of the Republic. The prosecutor may not be assigned functions leading to his accountability to any State bodies or officials, including bodies conducting criminal proceedings.
The interrelation of the unified centralized system defined in the Constitution with the subordination of subordinate prosecutors to higher authorities and the Prosecutor General of the Republic assigns the implementation of the constitutional functions and powers of the prosecutor's office to prosecutors, and not to other employees of the prosecutor's office with any special knowledge.
The Constitutional Court does not see any contradiction with the provisions of the Constitution of the Republic of Kazakhstan provided for by the CPC in the possibility of involving employees of an authorized unit of a law enforcement agency or a special state body of the Republic of Kazakhstan as specialists, in the understanding that the functional purpose of such a unit is to conduct research based on the special knowledge and competence of its employees. The activities of such a unit may not be related to the exercise of supreme supervision over the observance of legality in the territory of the Republic of Kazakhstan, pre-trial investigation and the maintenance of public prosecution in court.
An insufficiently clear statement of the second part of Article 80 of the CPC creates a risk of ambiguous interpretation of its provisions, expansion of the limits of application of the norm, which can potentially lead to infringement of human and civil rights and freedoms enshrined in the Constitution.
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, 62-65 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 part two of Article 80 of the Criminal Procedure Code of the Republic of Kazakhstan in accordance with the Constitution of the Republic of Kazakhstan in the following interpretation:
The involvement of an employee of an authorized unit of a law enforcement agency or a special state body of the Republic of Kazakhstan as a specialist is permissible if this employee is not an interested person in the case, has special knowledge and special competence necessary to assist in the collection, investigation and evaluation of evidence. The functional purpose of such a unit should be to conduct research based on the special knowledge and special competence of employees without exercising supreme supervision over the observance of legality in the territory of the Republic of Kazakhstan, pre-trial investigation and maintaining public prosecution in court.
Decisions of courts and other law enforcement agencies based on a different interpretation of the second part of Article 80 of the Criminal Procedure Code of the Republic of Kazakhstan and leading to infringement of human and civil rights and freedoms enshrined in the Constitution are not subject to execution and must be reviewed in accordance with the established procedure.
No later than six months after the publication of this regulatory resolution, the Government of the Republic of Kazakhstan should submit to the Mazhilis of the Parliament of the Republic of Kazakhstan a draft law aimed at improving the legal regulation of the procedure for attracting specialists in criminal proceedings, taking into account the legal positions of the Constitutional Court of the Republic of Kazakhstan set out in this regulatory resolution.
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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