On the review of paragraph 6) of the first part of Article 489, paragraph 2) of the first part, Part two of Article 490 and part five of Article 491 of the Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014 for compliance with the Constitution of the Republic of Kazakhstan

Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated May 16, 2023 No. 13-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:

     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, I examined paragraph 6) of the first part of Article 489, paragraph 2) of the first part, part two of Article 490 and part five of Article 491 of the Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014 (hereinafter referred to as the CPC) for compliance with the Constitution of the Republic of Kazakhstan at the request of Vyacheslav Porozhnyak.

      Having heard the report of the speaker, Judge of the Constitutional Court of the Republic of Kazakhstan Sarsembayev E.Zh., having studied the materials of the constitutional proceedings, analyzed the legislation of the Republic of Kazakhstan and international experience, the Constitutional Court of the Republic of Kazakhstan

      installed:

      The Constitutional Court of the Republic of Kazakhstan received an appeal from V.E. Porozhnyak with a request to review for compliance with Articles 13, 14, 75 and 77 of the Constitution of the Republic of Kazakhstan, paragraph 6) of the first part of Article 489, paragraph 2) of the first part, part two, fourth of Article 490 and part five of Article 491 of the CPC, related to the preliminary review by judges of the Supreme Court Petitions for the revision of judicial acts that have entered into force in the Republic of Kazakhstan.

      The subject of the appeal, comparing these norms of the CPC with their previous editions, sees a violation of his constitutional right to access justice when appealing a court verdict. In particular, it refers to:

      1) The Law of the Republic of Kazakhstan dated October 31, 2015 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on improving the system of administration of justice" (hereinafter referred to as the Law of October 31, 2015), which excluded from Article 490 of the CPC the obligation to bring a criminal case when considering a petition (Part one), as well as the rule on the preliminary consideration of a petition by a court in open court consisting of three judges (part two);

      2) The Law of the Republic of Kazakhstan dated December 27, 2021 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the implementation of a three–tier model with a division of powers and areas of responsibility between law enforcement agencies, the prosecutor's Office and the court" (hereinafter referred to as the Law of December 27, 2021), which increased the number of judges during preliminary consideration of petitions from one to three, the latter does not apply to persons whose petitions were rejected by the judge alone earlier (before July 1, 2022) (paragraph 6) of the first part of Article 489 of the CPC). This Law also abolished the right of the Chairman of the Supreme Court to submit submissions to the court of cassation, retaining the right to file a protest only for the Prosecutor General (part four of Article 490 of the CPC).

      When verifying the constitutionality of these CPC norms, the Constitutional Court proceeds from the following.

The Republic of Kazakhstan claims to be a democratic, secular, legal and social state, the highest values of which are man, his life, rights and freedoms (paragraph 1 of Article 1 of the Constitution).

      By granting everyone the right to defend their rights and freedoms in all ways that do not contradict the law, the Constitution enshrines everyone's right to judicial protection. Judicial power is exercised on behalf of the Republic of Kazakhstan and is intended to protect the rights, freedoms and legitimate interests of everyone, ensure the implementation of the Constitution, laws, other regulatory legal acts, and international treaties of the Republic. Decisions, verdicts and other court rulings are binding throughout the Republic (paragraphs 1 and 2 of Article 13, paragraphs 1 and 3 of Article 76).

      The final decisions of the Constitutional Council emphasized that the elevation of a particular type of rights or freedoms to the constitutional level and the declaration in the Constitution of their guarantee means that the State assumes the obligation to ensure the realization of these rights and freedoms (normative resolutions No. 3/2 of March 12, 1999, No. 3 of April 20, 2004, and others).

      These legal positions are consistent with the provisions of the International Covenant on Civil and Political Rights (adopted by the United Nations General Assembly on December 16, 1966 and ratified by the Law of the Republic of Kazakhstan dated November 28, 2005), which proclaims the right of everyone to a fair and public hearing of a criminal or civil case by a competent, independent and impartial court (paragraph 1 of article 14).

     Specific legal mechanisms that make it possible to effectively protect constitutionally significant values through justice are regulated by the laws of the Republic of Kazakhstan. The Constitution grants Parliament the right to issue laws that regulate the most important public relations, establish fundamental principles and norms concerning the judicial system and judicial proceedings (subparagraph 6) of paragraph 3 of Article 61, paragraph 2 of Article 75).

     In this case, laws are adopted on the basis of and in development of the norms of the Constitution, including those related to the right to judicial protection (paragraph 2 of Article 13), equality of all before the law and the court (paragraph 1 of Article 14), the rights of every detainee, arrested, accused of committing a crime to use the assistance of a lawyer (paragraph 3 of Article 16), be heard in court (subparagraph 4) of paragraph 3 of Article 77) and other guarantees.

The procedure of criminal proceedings is determined by the Constitution, constitutional laws, as well as the CPC, the provisions of which are updated based on the goals of improving and developing the judiciary.

      The Law of October 31, 2015 (effective January 1, 2016) amended the CPC in terms of the judicial system and the administration of justice, transforming the judicial system into a three-tier model.

      Since January 1, 2016, the cassation judicial boards of regional and equivalent courts have been abolished, and regional and equivalent courts operate as courts of appeal. The former supervisory judicial boards of the Supreme Court now act as a cassation instance.

      Paragraph 2) of the first part of Article 490 of the CPC, which is disputed by the subject of the appeal, establishes that a request for review of a judicial act is studied at a preliminary stage by a judge of the cassation instance, who decides on the existence or absence of grounds for requesting a case.

     According to the previous version of this rule, the petition was previously studied by the reporting judge (supervisory board) with the mandatory request for a criminal case in the absence of grounds for returning the petition without consideration.

      The provisions of the current version of paragraph 2) of the first part of Article 490 of the CPC on the existence or absence of grounds for requesting a court case are set out, unlike the expired version, not in a mandatory, but in a discretionary form. The judge of the cassation instance, in conjunction with other provisions of Chapter 52 of the CPC related to the review of judicial acts, is charged with submitting (in the absence of grounds for return) the received request for review for preliminary consideration with the request of the case.

     Based on the results of the preliminary review, the decision is made by three judges of the Supreme Court with the invitation of the parties, whose non-appearance does not prevent the consideration of the petition. Based on the results, a decision is made to transfer the petition with the case for consideration at a court session of the cassation instance or to refuse to transfer or return the petition (Articles 490, 491 of the CPC).

      A legal analysis of the provisions of articles 491 to 494 of the CPC confirms the need to claim a criminal case upon an incoming cassation petition (if there are no grounds for its return) and to provide judges of this instance with full access to the materials of the criminal case.

      In accordance with the third part of Article 491 of the CPC, "If there are grounds for reviewing judicial acts, the resolution, the petition and the documents attached to it, together with the case, are transferred to the court of cassation instance ...". The first part of Article 492 of the CPC states: "After receiving the case with the judge's decision, the Court of Cassation, with the protest of the Prosecutor General of the Republic of Kazakhstan, sends copies of these documents to the parties within three days ...". A similar requirement is contained in articles 493 and 494 of the CPC.

      The obligation to bring a criminal case in such a situation is also contained in paragraph 13 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."

     While guaranteeing everyone the right to judicial protection of their rights and freedoms and defining the constitutional principles of justice, the Basic Law does not explicitly fix the number of judicial instances and the order of their work. These issues are attributed to the regulation at the level of procedural laws adopted by the Parliament of the Republic, which has the right, within its competence, 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 view of the above, the Constitutional Court does not find inconsistency with the Constitution in paragraphs 2) of the first and second parts of Article 490 of the CPC, however, it notes insufficiently clear legal prescriptions of these norms for making an appropriate decision.

     The constitutional principles of justice, in conjunction with the right of everyone to judicial protection of their rights and freedoms, equality of all before the law and the court, and the administration of justice only by the court (articles 13, 14, 75, and 77 of the Constitution), require the court to take all measures provided for by law for a comprehensive, complete, and objective investigation of the circumstances necessary and sufficient to proper resolution of the case.

      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 its 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 the cassation procedure, with the 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 the legal certainty and fairness underlying the rule of law.

      Article 485 of the CPC (in furtherance of the stated constitutional provisions) defines the improper application of criminal and criminal procedure laws, which led to the conviction of an innocent person; unjustified acquittal or termination of the case; deprivation of the victim's right to judicial protection, and others, as grounds for cassation review of judicial acts that have entered into force.

     Such grounds for the Supreme Court to review judicial acts of the first and second instances stem from a generally accepted understanding of 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 possibility of reviewing a judicial act that has entered into legal force in cassation is an additional guarantee of the administration of justice, while determining the grounds and procedures at this stage of the criminal process is within the competence of the legislator.

      The Constitutional Court considers that the preliminary consideration by the judges of the cassation instance of petitions for the revision of judicial acts that have entered into force on the grounds provided for in paragraphs 1), 2), 4) and 7) of the first part of Article 485 of the CPC, without requesting the materials of the criminal case, may entail a violation of the constitutional principles of justice, which is unacceptable.

      In this regard, based on the need to ensure uniform application of the law, the procedural rules need to be adjusted in terms of compliance with the requirements of legal accuracy and predictability of consequences, that is, they must be formulated with a sufficient degree of clarity and based on understandable criteria that exclude the possibility of arbitrary interpretation of the provisions of the law (normative resolution of the Constitutional Court of February 22, 2023 No. 3).

The Law of October 31, 2015 excluded from article 490 of the CPC the provision on the preliminary examination of a cassation petition by a court in open court consisting of three judges. According to the author of the appeal, this provision violated the constitutional principle of everyone's right to be heard in court.

      By the law of December 27, 2021, the wording of Article 490 of the CPC was supplemented with a new part from July 1, 2022, according to which the preliminary examination of a petition for the revision of judicial acts that have entered into force is carried out by three judges of the Supreme Court in open court with the invitation of the parties, whose non-appearance does not prevent the consideration of the petition.

     By returning to the previous collegial procedure for the preliminary consideration of cassation petitions, consisting of three judges, the legislator, without changing the purpose, preferred a collegial rather than a single decision-making procedure at this stage of the cassation proceedings.

      This addition to Article 490 of the CPC, in conjunction with other articles of the CPC, is consistent with the constitutional principle of everyone's right to be heard in court.

     This situation also does not see a violation of the constitutional provisions on the equality of all before the law and the court, as well as the fact that no one can be discriminated against in any way on the grounds 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 noted that it is precisely in the laws that specific conditions and circumstances are defined that make it possible to realize the rights and freedoms of man and citizen (Regulatory Decree No. 6 of March 27, 2023).

      The addition to Article 490 of the CPC was introduced by the Law of December 27, 2021 with a delay period (from July 1, 2022) without retroactive effect to the amendment and it is not retroactive in relation to this situation. Laws adopted by Parliament may be retroactive if the decision to do so is enshrined in the law itself or the act on its enactment (Normative Resolution of the Constitutional Council of March 10, 1999 No. 2/2).

     The legal regulation of various types of legal relations has its own specific features. This implies not only the possibility, but also the need to establish legal norms in sectoral laws that correspond to the Basic Law, which would develop and supplement these provisions and determine the procedure for their implementation.

     In this regard, the peculiarity of criminal proceedings is that they are carried out in accordance with the criminal procedure law, which was put into effect at the time of the procedural action, the adoption of a procedural decision (Article 5 of the CPC), and this does not contradict the Constitution.

     At the same time, as part of the further strengthening of the constitutionally recognized right of everyone to judicial protection of their rights and freedoms, it is advisable to consider the possibility of directly submitting to the cassation instance a petition for a review of judicial acts that have entered into force with the abolition of the procedure for its preliminary consideration (articles 490, 491 of the CPC).

By the law of December 27, 2021, paragraph 6) of the first part of Article 489 of the CPC was supplemented with the words "(judges)" after the word "judges".

     This version is disputed by the subject of the appeal, whose petition was previously rejected by a single judge of the Supreme Court, since it does not allow him to file a petition again on the same grounds and puts him in an unequal position with other persons.

      The preliminary review stage is aimed at transferring the petition for consideration to the cassation instance or refusing it if there are no procedurally established grounds for reviewing judicial acts (part one of Article 491 of the CPC). This allows us to distinguish this stage from the cassation instance, which directly resolves the issue of the incorrect application of criminal and criminal procedure laws, which led to the conviction of an innocent person.; unjustified acquittal or termination of the case and other cases provided for in the first part of Article 485 of the CPC.

      The grounds for the return of petitions, regulated by Article 489 of the CPC, are aimed at fulfilling the same task, including when a judge (judges) had previously issued a decision to refuse to transfer the petition with the case for consideration in the cassation instance on the same grounds.

     Criminal proceedings, as noted above, are conducted in accordance with the criminal procedure law, which was put into effect by the time the procedural action was performed and the procedural decision was made (Article 5 of the CPC).

      Thus, the current version of the CPC norm in question, in its constitutional and legal meaning in the system of current legal regulation, does not contradict the Constitution, since the preliminary examination of the petition was conducted for the same purposes by a judge of the Supreme Court solely by virtue of the provisions of the CPC in force at that time.

The law of December 27, 2021 excluded from the fourth part of Article 490 of the CPC the right of the Chairman of the Supreme Court of the Republic of Kazakhstan to submit submissions to the court of cassation. In this amendment to the law, the subject of the appeal sees a restriction on access to justice.

      The Constitutional Court resolves exclusively issues of law and considers citizens' appeals on compliance with the Constitution of normative legal acts directly affecting their rights and freedoms enshrined in the Constitution of the Republic.

      The exclusion from the fourth part of Article 490 of the CPC of the right of the Chairman of the Supreme Court to submit submissions to the court of cassation instance does not directly affect the rights and freedoms of the subject of the appeal. The provision excluded from the CPC is currently not valid law in the Republic of Kazakhstan and does not apply to relevant legal relations, and therefore the Constitutional Court does not provide a legal assessment in this part.

      In addition, during the session of the Constitutional Court, V.E. Porozhnyak increased the volume of his appeal and requested a review of the constitutionality of part five of Article 491 of the CPC.

      The fifth part of Article 491 of the CPC provides that a decision made based on the results of a preliminary examination of a petition is not subject to appeal, however, it does not prevent the filing of a second petition by the same person or other persons specified in Article 486 of the CPC, but on different grounds.

     The Supreme Court is the highest judicial body in civil, criminal and other matters within the jurisdiction of local and other courts, and in cases provided for by law, it hears court cases within its jurisdiction (article 81 of the Constitution).

The Constitution specifies that the legal regulation of the administration of justice, including the jurisdiction of the Supreme Court as the highest judicial instance, is subject to the regulation of the law, the norms of which must take into account these constitutional guarantees.

      The review of judicial acts in cassation by the Supreme Court of the Republic of Kazakhstan, regulated by the contested articles of the CPC, is aimed not at restricting, but, on the contrary, at ensuring and protecting constitutionally recognized human and civil rights in criminal proceedings. A different understanding deprives the constitutional and legal meaning of the provision that the Republic of Kazakhstan asserts itself to be a state governed by the rule of law, the highest values of which are man, his life, rights and freedoms, as well as the rights of everyone to judicial protection of their rights and freedoms.

      The cassation instance, as noted in this regulatory resolution, is recognized as an additional guarantee of the administration of justice, at the same time, procedural rules should exclude the unjustified resumption of judicial proceedings for the review of judicial acts that have entered into force.

     In this regard, the impossibility established by the procedural law of appealing a decision made following a preliminary review by judges of the Supreme Court of the existence or absence of grounds for reviewing a judicial act, while maintaining the possibility of filing a second appeal on other grounds, does not contradict the constitutional right of everyone to judicial protection of their rights and freedoms.

      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 paragraph 6) of the first part of Article 489, the second part of Article 490 and the fifth part of Article 491 of the Criminal Procedure Code of the Republic of Kazakhstan as corresponding to Articles 13, 14, 75 and 77 of the Constitution of the Republic of Kazakhstan.

To recognize paragraph 2) of the first part of Article 490 of the Criminal Procedure Code of the Republic of Kazakhstan in accordance with Articles 13, 14, 75 and 77 of the Constitution of the Republic of Kazakhstan in the interpretation given by the Constitutional Court:

      The preliminary examination of a petition for the revision of judicial acts that have entered into force on the grounds provided for in paragraphs 1), 2), 4) and 7) of the first part of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan is carried out with the mandatory request of the materials of the criminal case.

This regulatory resolution comes into force from the date of its adoption, is generally binding throughout the territory of the Republic of Kazakhstan, 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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