On the review of compliance with the Constitution of the Republic of Kazakhstan of the third part of Article 217 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 May 22, 2023 No. 15-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 V.E. Porozhnyak.,
representatives:
The Prosecutor General's Office of the Republic of Kazakhstan – Advisor to the Prosecutor General Adamova T.B.,
Ministry of Justice of the Republic of Kazakhstan – Vice Minister Mukanova A.K.,
Judicial Administration of the Republic of Kazakhstan – Deputy Head Musralinov A.S.,
Republican Bar Association – Deputy Chairman of the board I.O. Vrancheva.,
reviewed in an open meeting on compliance with the Constitution of the Republic of Kazakhstan, part three of Article 217 of the Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014 (hereinafter referred to as the CPC) at the request of V.E. Porozhnyak.
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, having 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 received an appeal from V.E. Porozhnyak for consideration of compliance with the Constitution of the Republic of Kazakhstan with part three of Article 217 of the CPC.
This criminal procedure norm defines that the interrogation of the victim and the witness by the investigating judge (deposition of testimony) is carried out in the presence of the prosecutor, the suspect (if any), his lawyer participating as a defender, the lawyer representing the victim, and, if necessary, other participants in the process. A suspect is not called for questioning if the presence of the suspect during the interrogation threatens the safety of the victim or witness.
In the opinion of the subject of the appeal, the absence of a witness entitled to defense and his lawyer in the list of persons entitled to be present during the interrogation of the victim and witness by the investigating judge (deposition of testimony) contradicts the provisions of the Constitution on the rights of everyone to receive qualified legal assistance (paragraph 3 of Article 13), using the assistance of a lawyer (defender) with the moment, respectively, of detention, arrest or indictment (paragraph 3 of article 16), equality of all before the law and the court and the inadmissibility of any discrimination against anyone based on origin, social, official and property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances (Article 14).
When considering the constitutionality of the provision of the third part of Article 217 of the CPC in relation to the subject of the appeal, the Constitutional Court proceeds from the following.
For the first time, a new participant in the criminal process, a witness who has the right to defend himself, was legally provided for in the CPC of July 4, 2014. Subsequently, his procedural status, rights and obligations were clarified in the development of the criminal procedure legislation of Kazakhstan.
The normative resolution of the Constitutional Council of June 4, 2021 No. 1 notes that "Amendments to the Code of Criminal Procedure are changing the legal situation and strengthening guarantees for the protection of the rights and freedoms of a witness entitled to defense. By law, he refers to the participants in the process defending their or represented rights and interests (sub-paragraphs 1), 2), 5) and 8) of paragraph 1 of Article 1 of the Law). Such regulation is aimed at giving a more precise procedural status to a person in respect of whom there is an assumption that he has committed a criminal offense, from the moment he is involved in the pre-trial investigation, to the realization and protection of his constitutional rights, which is consistent with paragraphs 1 and 3 of Article 13 and subparagraph 1) paragraph 3 of Article 77 of the Basic Law".
Article 65-1 of the CPC defines the conditions for granting a person the status of a witness entitled to protection and his legal status. A person acquires this procedural status in cases where he is identified in the statement and report of a criminal offense as the person who committed it, or a witness participating in the criminal process testifies against him, but procedural detention has not been applied to this person or a decision has not been made to recognize him as a suspect.
Currently, his legal status, with the exception of certain differences, is as close as possible to the status of a suspect.
Paragraph 3 of article 13 of the Constitution establishes the right of everyone to receive qualified legal assistance. In cases stipulated by law, legal assistance is provided free of charge.
Issues related to the provision of state-guaranteed legal assistance are regulated by the Law of the Republic of Kazakhstan dated July 5, 2018 "On Advocacy and Legal Assistance", procedural and other laws of the Republic.
The first part of Article 67 of the CPC stipulates that the participation of a defender in criminal proceedings is mandatory in cases where: the suspect, the accused, the defendant, the convicted, the acquitted apply for it; when such a participant in the process has not reached the age of majority or because of physical or mental disabilities cannot independently exercise his right to defense and in a number of other cases. cases. When, in this situation, the defense attorney is not invited by the suspect, the accused, the defendant, the convicted, the acquitted, their legal representatives, as well as other persons on their behalf, the body conducting the criminal process is obliged to ensure the participation of the defense attorney at the appropriate stage of the process, which is mandatory for the professional organization of lawyers (part three of the article 67 CPC).
The legislator imposes on the body conducting the criminal process the obligation to ensure the participation of a lawyer to protect the rights and legitimate interests of victims who are minors or do not speak the language of legal proceedings, or who, due to their physical or mental condition, are unable to independently defend their rights and legitimate interests if the lawyer is not invited by the victim himself or his legal representative (part two article 76 of the CPC).
Currently, the legislator has not included a witness entitled to protection in the list of persons entitled to receive State-guaranteed legal assistance. At the same time, the CPC provides for his right, independently or through his relatives or trusted persons, to invite a lawyer as a defender and to testify in his presence (paragraphs 6) and 7) of the second part of article 65-1). This corresponds to the constitutional right of everyone to receive qualified legal assistance (paragraph 3 of Article 13 of the Basic Law).
The Constitutional Court, noting that paragraph 3 of Article 13 of the Constitution places at the level of law the definition of cases when legal aid is provided free of charge, and considering that the adoption of laws falls within the competence of the Parliament of the Republic, does not see a discrepancy between the third part of Article 217 of the CPC and this provision of the Basic Law.
In its content, the third part of Article 217 of the CPC does not contradict paragraph 3 of Article 16 of the Constitution, which defines that the right to use the assistance of a lawyer (defender) is available to: a detainee from the moment of detention, an arrested person from the moment of arrest, and an accused person from the moment of arraignment.
A witness who has the right to defense is not a detainee, arrested, or accused, and, accordingly, in this status, he is not directly subject to the specified constitutional provision.
The Constitutional Court, regarding the provisions prescribed by Article 14 of the Constitution, previously confirmed the legal position of the Constitutional Council that the specific conditions and circumstances allowing the realization of human and civil rights and freedoms are defined in laws (normative resolutions of the Constitutional Court of March 27, 2023 No. 6, the Constitutional Council of March 10, 1999 No. 2/2, dated March 29 , 1999 , No. 7/2 and others).
In general, the analysis of the norms of the CPC shows the existence of equality of rights and obligations of each person in the procedural status of the relevant participant in the process, protecting their own or represented rights and interests, regardless of origin, social, official and property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances.
The Constitutional Court, noting that there is no contradiction to the Basic Law of the Criminal Procedure Norm in question, believes that leaving it to the discretion of the investigating judge to decide whether a witness entitled to defense should be present when depositing testimony in law enforcement practice may subsequently lead to a restriction of the procedural rights of this person in the status of a suspect (accused).
The procedure of interrogation by the investigating judge of the victim (witness) is necessary for the implementation of the principle of adversarial nature of the parties. In this regard, the mandatory presence of the suspect (if any) and/or his lawyer during such an interrogation, provided for by the norm in question, is important. However, the late transfer by the criminal prosecution body of a witness entitled to protection to the status of a suspect may limit his procedural capabilities, including the right to be present during the interrogation of the victim (witness) by the investigating judge.
The absence of an opportunity for a person recognized as a suspect (accused) after depositing the victim's (witness's) testimony to interrogate those who testify against him also does not fully meet the minimum guarantee requirements provided for in subparagraph (e) of paragraph 3 of article 14 of the International Covenant on Civil and Political Rights (ratified by the Law of the Republic of Kazakhstan dated November 28, 2005).
The right of a witness entitled to defense, enshrined by the legislator, to confront those who testify against him (paragraph 15) of the second part of Article 65-1 of the CPC), does not correspond sufficiently with the provisions of the CPC governing the deposition of testimony of the victim (witness).
The provision that the interrogation by an investigating judge (deposition of testimony) of minor witnesses (victims) is carried out in order to prevent their subsequent interrogations in order to exclude traumatic effects (part one of Article 217 of the CPC), in law enforcement practice restricts the possibility of a witness entitled to defense to demand a confrontation with such persons.
The procedure for depositing testimony is also not correlated with the norm that establishes the powers of the defender, who is granted the right to participate in the court session when depositing testimony (paragraph 7) of the second part of Article 70 of the CPC).
The Constitutional Court also notes the absence of a clear distinction between the grounds for questioning a person as a suspect or as a witness entitled to defense, which may lead to a violation of the rights of the person being interrogated due to differences in the legal status of these participants in the process.
Thus, a situation where eyewitnesses (witnesses), including victims, directly identify a person as having committed a crime, allows the person conducting the pre-trial investigation, at his discretion, to interrogate such a person as a suspect or in the status of a witness entitled to protection. At the same time, the CPC does not define clear criteria, boundaries and conditions of permissible discretion, which allows the law enforcement officer to interpret it arbitrarily.
The legislator also did not determine at what time and under what circumstances the person conducting the pre-trial investigation transfers the witness entitled to protection to the status of a suspect or, conversely, removes him from the circle of participants in the criminal process defending their own or represented rights and interests.
These issues indicate insufficient legal regulation of the protection of the rights of a person who is in the status of a witness entitled to protection, and the need for further improvement of criminal procedural norms related to the legal status of this new participant in the process.
Based on the above, guided by paragraph 3 of Article 72, 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", in relation to the subject of the appeal, the Constitutional Court of the Republic of Kazakhstan
Decides:
To recognize the third part of Article 217 of the Criminal Procedure Code of the Republic of Kazakhstan as corresponding to the Constitution of the Republic of Kazakhstan.
To recommend to the Government of the Republic of Kazakhstan to submit to the Mazhilis of the Parliament of the Republic of Kazakhstan a draft law aimed at improving the criminal procedure legislation of the Republic of Kazakhstan, taking into account the legal positions of the Constitutional Court of the Republic of Kazakhstan set out in this regulatory resolution.
To inform the Constitutional Court of the Republic of Kazakhstan about the measures taken.
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
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