On the review of paragraph 1) of the second part of Article 484 of the Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014 and paragraph 3 of paragraph 2 of the regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated March 10, 2022 No. 2 "On the application of legislation regulating the consideration of criminal cases in cassation" for compliance with the Constitution of the Republic of Kazakhstan

Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated July 14, 2023 No. 21-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., Sarsembaev E.J. and Udartseva S.F., with the participation of:

     The subjects of the appeals are Aushinov K.E., Mailybayeva O.A., Kadirzhan M. and Kondratyuk S.Ya. (their representatives are lawyers Kozhabekov T.E., Zholbolov N.K., Asylbekov A.T. and Kemelkhanova A.Zh.),

     representatives:

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

     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.,

     Republican Bar Association – Deputy chairman Vrancheva I.O.,

     In an open session, he considered the appeals of Aushinov K.E., Mailybayeva O.A., Kadirzhan M. and Kondratyuk S.Ya. on checking for compliance with the Constitution of the Republic of Kazakhstan, paragraph 1) of the second part of Article 484 of the Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014 (hereinafter referred to as the CPC) and paragraph 3 of paragraph 2 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 2 dated March 10, 2022 "On the Application of Legislation Regulating the Consideration of Criminal Cases in Cassation" (hereinafter referred to as the regulatory decision of the Supreme Court).

     Having heard the reports of the speakers – judges of the Constitutional Court of the Republic of Kazakhstan Sarsembaev E.Zh. and Eskendirov A.K., having studied the materials of the constitutional proceedings, having analyzed the legislation of the Republic of Kazakhstan and international experience, the Constitutional Court of the Republic of Kazakhstan

     installed:

     The Constitutional Court received appeals from Aushinov K.E., Mailybayeva O.A., Kadirzhan M. and Kondratyuk S.Ya. for consideration of compliance with paragraph 2 of Article 13, Article 14, paragraphs 1 and 3 of Article 39 of the Constitution of the Republic of Kazakhstan, paragraph 1) of the second part of Article 484 of the CPC and paragraph 3 of paragraph 2 of the normative resolution of the Supreme Court regarding the established They include restrictions on the cassation review of judicial acts in cases of criminal offenses and minor crimes.

     All appeals relate to the same subject, and therefore, guided by paragraph 2 of Article 49 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Constitutional Court of the Republic of Kazakhstan" (hereinafter referred to as the Constitutional Law), the Constitutional Court combined them into one constitutional proceeding.

    When considering the issue of compliance with the Constitution of the above-mentioned provisions, the Constitutional Court proceeds from the following.

The Constitution guarantees the right of everyone to judicial protection of their rights and freedoms, which in no case is subject to restriction (paragraph 2 of article 13, paragraph 3 of article 39). It follows from these constitutional provisions that the State is obliged to ensure the exercise of the right to judicial protection by a lawful, independent, competent and impartial court. The same understanding of the right to judicial protection is contained in the International Covenant on Civil and Political Rights (ratified by the Law of the Republic of Kazakhstan dated November 28, 2005, hereinafter – the International Covenant).

     The Basic Law does not define the procedure for exercising everyone's constitutional right to judicial protection of their rights and freedoms. It follows from the content of subparagraph 6) of paragraph 3 of articles 61 and 75 of the Constitution that these issues are regulated in the laws establishing the organizational and legal structure of the judicial system and procedures for the administration of justice.

     In accordance with paragraphs 1 and 2 of article 75 of the Basic Law, justice in criminal matters is administered only by the court through criminal proceedings.

    The CPC, in the development of constitutional guarantees, recognizes as the principles of the criminal process its fundamental principles, which determine the system and content of stages, institutions, as well as norms that provide general conditions for the realization of the rights and obligations of participants in criminal proceedings and the solution of the tasks facing it (Article 9); the right of everyone to judicial protection of their rights and freedoms, everyone's access to justice (article 12); the administration of justice on the basis of equality of all before the law and the court (article 21).

     The competence of courts at different levels is determined by the range of cases assigned by law to their jurisdiction, and the procedural procedure in this case is uniform and binding on all defendants and should not create any privileges for one group of persons, nor should it infringe on anyone's right to judicial protection of their rights and freedoms (normative resolution of the Constitutional Court Council of May 5, 1999, No. 8/2).

Paragraph 3 of article 76 of the Basic Law establishes the binding force of court decisions, verdicts and other rulings throughout the Republic.

     The Constitutional Court, in its regulatory resolution No. 13-NP dated May 16, 2023, noted that "the constitutionally guaranteed right of everyone to judicial protection of their rights and freedoms presupposes the provision by the state of conditions for a fair trial in the court of first instance with the possibility of reconsideration of the case on the merits as part of the review of judicial acts that have not entered into force on appeal.".

    The amendment of a judicial act that has entered into legal force in cassation, with proper organization of the activities of local courts, should be carried out in exceptional cases. By virtue of this, the grounds for its revision must ensure legal certainty and fairness, which are the basis of a rule-of-law state."

    The legislator identified the incorrect application of criminal and criminal procedure laws as the basis for the cassation review of judicial acts that have entered into force, which has led to certain negative legal consequences (Article 485 of the CPC). The legislator does not consider such improper application to be grounds for cassation review of judicial acts in cases of criminal offenses and minor crimes (paragraph 1) of the second part of Article 484 of the CPC and paragraph 3 of paragraph 2 of the normative resolution of the Supreme Court).

     Judicial errors in these criminal cases can be corrected in cassation only upon the protest of the Prosecutor General of the Republic of Kazakhstan (part three of Article 484 of the CPC) if there are grounds provided for in Article 485 of the CPC.

     Thus, access to the cassation instance, which is an additional guarantee of the administration of justice, is provided subject to the specified permissible and restrictive conditions.

The equality of all before the law and the courts, guaranteed by paragraph 1 of article 14 of the Constitution, means that laws cannot establish differences in the rights of individuals that have no objective and reasonable justification.

     Under equal conditions, the subjects of law should be in an equal legal position. A different approach to the issue of the limits of restrictions on human and civil rights and freedoms, which does not pursue constitutional and legal goals, would contradict article 39 of the Constitution.

     The Constitutional Court, in its regulatory resolution No. 4 dated March 6, 2023, stated that any legislative restrictions on human rights and freedoms must be adequate to legitimately justified goals and meet the requirements of fairness, proportionality and proportionality.

     In criminal proceedings, through which judicial power is exercised, the constitutional principle of equality of all before the law and the court must be respected.

     In this sense, the implementation of this constitutional principle determines equality in the means of protection, as well as in the restoration of violated rights and freedoms on the basis of the unity of substantive and procedural norms.

     The existence of different amounts of procedural possibilities for participants in criminal proceedings does not exclude the fact that the legal norms themselves are influenced by the constitutional principle of equality of all before the law.

    The right of the Prosecutor General to protest the cassation review of judicial acts in cases of criminal offenses and minor crimes, not only in the interests of the State, but also in the interests of both victims and convicts, is one of the forms of exercising the constitutional competence of the Prosecutor's Office to exercise supreme supervision over the observance of legality in the Republic (paragraph 1 of article 83 of the Constitution).

    The constitutional principle of equality of all before the court is inherent in judicial activity. The legal content of this principle is based on the existence of a unified judicial system that ensures that everyone, regardless of any circumstances, has a fair and transparent hearing by a competent and independent court; equal application of legal norms for all in the process of resolving a dispute; procedural equality of the parties at a court hearing.

    Both components of the constitutional provision on equality of all before the law and the court are integral elements of judicial proceedings and are in close normative legal unity with another constitutional norm that enshrines the right of everyone to judicial protection of their rights and freedoms (paragraph 2 of Article 13 of the Constitution).

In the normative resolution of the Constitutional Court dated May 16, 2023, No. 13-NP, it was noted that the grounds for the Supreme Court to review judicial acts of the first and appellate instances stem from the nature of the rule of law, in which the absence of an effective mechanism for correcting judicial errors, entailing a significant violation of the constitutional rights and freedoms of man and citizen, is unacceptable.

     The Constitution does not establish specific requirements for the number of judicial instances in one form or another of legal proceedings. Earlier, the Constitutional Council recognized that the right to judicial protection includes the right to appeal against judicial acts (Normative Resolutions No. 8/2 of May 5, 1999, No. 14/2 of July 10, 2000, and No. 1 of April 14, 2006). When determining their number, the legislator must take into account the constitutional purpose of the judiciary – "protection of the rights, freedoms and legitimate interests of citizens and organizations, ensuring the implementation of the Constitution, laws, other normative legal acts, international treaties of the Republic" (paragraph 1 of Article 76 of the Constitution).

    In accordance with the International Covenant on Human Rights (article 14, paragraph 5), everyone who is convicted of a crime has the right to have his conviction and sentence reviewed by a higher court in accordance with the law. The United Nations Human Rights Committee, in its general comment No. 32 of August 23, 2007, notes: "Article 14, paragraph 5, of the International Covenant is violated not only if the decision of the court of first instance is final, but also if the conviction is pronounced by the court of appeal or the court of last instance. After an acquittal by a lower court, in accordance with domestic law, it cannot be reviewed by a higher court. In cases where the country's highest court acts as the court of first and only instance, the lack of the right to review by a higher court is not compensated by the fact that the person is being tried by the supreme court of the State party concerned; such a system is rather incompatible with the Covenant, except if the State party concerned has made a reservation in this regard."

     Taking into account this constitutional and legal understanding of paragraph 1 of Article 76, together with paragraph 2 of Article 13 and paragraph 1 of Article 14 of the Constitution, it is recommended to work out amendments to the contested norms of the CPC and the normative decision of the Supreme Court in order to improve the procedure for exercising the right of persons to access the cassation instance, regardless of the type of criminal offense and category of crimes.

The legal possibility provided by law for the review of judicial acts that have entered into force, resolving a criminal case on the merits, which makes it possible to correct judicial errors that significantly violate the rights and legitimate interests of persons as a result of improper application of substantive and procedural law, complies with the Constitution.

     The revision of judicial acts that have entered into legal force means, in essence, the possibility of overcoming their finality, therefore, the legislator needs to provide such institutional and procedural conditions for their revision that would meet the requirements of procedural efficiency, economy in the use of judicial remedies and transparency in the administration of justice.

    At the same time, the procedure for reviewing these judicial acts should exclude the possibility of artificially delaying the trial. Timely recognition of legal force and implementation of a court decision ensure legal certainty and consideration of the interests of participants in the criminal process.

    Consequently, the exceptional nature of the grounds for reviewing court decisions in the cassation instance should ensure a reasonable balance between the stability and finality of decisions, verdicts and other court decisions binding on the entire territory of the Republic (paragraph 3 of Article 76 of the Constitution) and the principles of justice, which are common and uniform for all courts and judges of the Republic (paragraphs 3 and 4 articles 77 of 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, paragraph 3 of article 64 and subparagraph 2) paragraph 1 of Article 65 of the Constitutional Law, the Constitutional Court of the Republic of Kazakhstan

     Decides:

To recognize paragraph 1) of the second part of Article 484 of the Criminal Procedure Code of the Republic of Kazakhstan and paragraph three of paragraph 2 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated March 10, 2022 No. 2 "On the application of legislation regulating the consideration of criminal cases in cassation" as consistent with the Constitution of the Republic of Kazakhstan.

To recommend to the Government of the Republic of Kazakhstan to initiate the submission to the Mazhilis of the Parliament of the Republic of Kazakhstan of a draft law aimed at further improving the Criminal Procedure Code of the Republic of Kazakhstan in accordance with the legal positions of the Constitutional Court of the Republic of Kazakhstan regarding access to the cassation instance, regardless of the type of criminal offense and category of crimes 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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