"Not an official translation"

"APPROVED"

By the decision of the Presidium of the Republican

Bar Association dated January 23, 2025

Position

The Presidium of the Republican Bar Association on the issue of bringing lawyers to justice under Article 423 of the Criminal Code of the Republic of Kazakhstan for disclosing data from pre-trial proceedings

1. Problem description

Article 423 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) provides for criminal liability for disclosure of data from pre-trial proceedings or closed court proceedings.

For a long time, this article remained inactive and there were no cases of convictions under it.

However, in 2023, changes were made to this article, significantly expanding the range of subjects in respect of which it can be applied, as well as creating conditions for an unreasonably broad interpretation of the circumstances in which criminal liability under this article may occur.

In connection with the cases of registration of a pre-trial investigation under this article against lawyers in the performance of their professional duties, the Republican Bar Association expresses the following position.

2. Current legislative regulation of the issue

In accordance with the current version of Article 423 of the Criminal Code:

"Disclosure of data from pre-trial proceedings or closed court proceedings by a person warned in accordance with the procedure established by the law of the Republic of Kazakhstan about the inadmissibility of their disclosure, or by a person to whom they were entrusted or became known through service, work or on other grounds provided for by the law of the Republic of Kazakhstan, if the disclosure of data from pre-trial proceedings was made without the consent of the prosecutor, as well as data from a closed judicial proceedings without the consent of the judge - is punishable by a fine of up to two thousand monthly calculation indices, or correctional labor in the same amount, or community service for up to six hundred hours, or restriction of liberty for up to two years, or imprisonment for the same term."

This article is valid as amended by the Law of January 03, 2023, before which it was valid in the following wording:

"Disclosure of data from pre-trial proceedings or closed court proceedings by a person warned in accordance with the procedure established by the law of the Republic of Kazakhstan about the inadmissibility of their disclosure if the disclosure of data from pre-trial proceedings was made without the consent of the prosecutor or the person conducting the pre-trial proceedings, as well as data from closed court proceedings without the consent of the judge -

is punishable by a fine of up to two thousand monthly calculation indices, or correctional labor in the same amount, or community service for up to six hundred hours, or restriction of liberty for up to two years, or imprisonment for the same term."

Subparagraph 41) of Article 7 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) contains the concept of "pre-trial proceedings", which refers to proceedings in a case from the beginning of the pre-trial investigation until the prosecutor sends the criminal case to the court for consideration on its merits or termination of proceedings, as well as the preparation of materials on the criminal case by a private prosecutor and the defense side.

Article 201 of the CPC establishes the inadmissibility of disclosure of pre-trial investigation data.

In accordance with part 1 of this article, the data of the pre-trial investigation are not subject to disclosure. They may be made public only with the permission of the prosecutor to the extent that they deem it possible, if it does not contradict the interests of the investigation and does not involve a violation of the rights and legitimate interests of others.

According to part 2 of Article 201 of the CPC, the person conducting the pre-trial investigation warns the defense attorney, witnesses, the victim, the civil plaintiff, the civil defendant or their representatives, the expert, specialist, translator, witnesses and other persons present during the investigative actions about the inadmissibility of disclosure without his permission of the information available in the case, as indicated by A subscription with a warning about liability is selected for individuals.

Part 3 of Article 201 of the CPC establishes that they do not disclose the data of the pre-trial investigation.:

1) transfer of information on a criminal case set forth in requests, petitions, statements, complaints and other procedural documents emanating from participants in the process in accordance with the procedure provided for by this Code;

2) submission of information on a criminal case to a person involved in it by a defender, a representative of the victim on a contractual basis as an expert, specialist, provided that he is familiar with his responsibility under Article 423 of the Criminal Code and gives him a written obligation not to disclose this information without the consent of the person conducting the pre-trial investigation or the prosecutor with the issuance of a corresponding receipt;

3) submission to the authorized body for asset recovery of information related to the illegal acquisition and withdrawal of assets obtained during criminal proceedings.

In the current legislation, there is no clear and specific definition of information related to "data from pre-trial proceedings or closed court proceedings," which does not allow us to clearly define the boundaries of the objective side of the composition provided for in Article 423 of the Criminal Code.

According to subparagraph 6) of Article 6 of the Law of the Republic of Kazakhstan "On Access to Information", access to information about violations of human and civil rights and freedoms is not subject to restriction.

In accordance with subparagraph 11) of this article, access to information about violations of the law by information holders and their officials is not subject to restriction.

According to article 19 of the Universal Declaration of Human Rights, adopted by resolution 217 A (III) of the UN General Assembly on December 10, 1948, everyone has the right to freedom of opinion and expression; this right includes freedom to adhere to their beliefs without hindrance and freedom to seek, receive and impart information and ideas by any means and regardless of state borders.

In accordance with article 19 of the International Covenant on Civil and Political Rights, adopted by General Assembly resolution 2200 A (XXI) of December 16, 1966, everyone has the right to freely adhere to their opinions. Everyone has the right to freedom of expression; this right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, orally, in writing or through print or artistic forms of expression, or by other means of their choice.

3. The current practice of applying Article 423 of the Criminal Code

Since the adoption of the current Criminal Code from 2015 to 2022 inclusive, according to the Internet portal of Legal Statistics (https://qamqor.gov.kz/crimestat/statistics ) there has not been a single court verdict under Article 423 of the Criminal Code.

Thus, this article remained inactive for a long time.

In 2023 and 2024, there was 1 conviction under Article 423 of the Criminal Code for each year.

Thus, according to the verdict of the Zharminsky District Court of the Abai region dated April 10, 2023 in case No. 1041-23-00-1/8, the citizen was found guilty of committing a criminal offense under Article 423 of the Criminal Code and was sentenced to 1 year of restriction of liberty. A procedural agreement was concluded in the form of a plea bargain in the case. The accused was questioned as a witness in a criminal case being investigated under paragraph 2) of part 4 of Article 189 of the Criminal Code, and warned about the non-disclosure of data from the pre-trial investigation and about criminal liability in case of disclosure. However, having been warned, the accused personally wrote the testimony he gave during the interrogation, photographed it and sent it via the WhatsApp application to the mobile number of the person against whom he had previously given incriminating punishments.

By the verdict of the Alatau District Court of Almaty dated October 28, 2024 in case No. 7575-24-00-1/342, the citizen was found guilty under Article 423 of the Criminal Code and sentenced to 1 year of restriction of liberty. The citizen was recognized as a victim in a criminal case being investigated under part 4 of Article 147 of the Criminal Code, and signed a non-disclosure agreement on pre-trial proceedings. As part of the criminal case, two confrontations of the victim with witnesses were conducted, the results of which she disseminated by publishing videos on the TikTok social network.

Thus, over the past 10 years, 2 cases of bringing persons to justice under Article 423 of the Criminal Code, despite the changes made to it, indicate the following:

1) bringing to criminal responsibility for this crime is an extremely rare and exceptional situation.;

2) only persons who have signed a non-disclosure agreement on the data of the pre-trial proceedings are held criminally liable.;

3) in order to bring to criminal responsibility, it is necessary that the guilty person commit active actions aimed at disclosing the contents of specific case materials containing the results of procedural actions (protocol of the witness's interrogation and testimony of the witness, protocol of the confrontation and the results of the confrontation);

4) no official has been held accountable under this article.

The absence of facts of bringing lawyers to justice under the new version of Article 423 of the Criminal Code indicates that a lawyer is not one of the "persons to whom information was entrusted or became known through service, work or other legally prescribed grounds."

4. Foreign experience

Article 374 of the Criminal Code of Georgia provides for liability for the disclosure of these materials of operational investigative activities or investigations only by a person who has been warned in accordance with the procedure established by law about the prohibition of their disclosure.

Article 310 of the Criminal Code of the Russian Federation establishes criminal liability for the disclosure of preliminary investigation data by a person who has been warned in accordance with the procedure established by law about the inadmissibility of their disclosure if it was committed without the consent of the investigator or the person conducting the inquiry.

According to article 300 of the Criminal Code of the Republic of Azerbaijan, criminal liability arises only for the disclosure of the data of an inquiry or preliminary investigation by a person warned in accordance with the procedure established by law about the inadmissibility of their disclosure, preventing the conduct of a preliminary investigation, or causing moral or material harm to the person concerned, if it is committed without the consent of the person conducting the inquiry, investigator, prosecutor or judge, performing the functions of judicial supervision.

According to part 1 of Article 356 of the Criminal Code of the Kyrgyz Republic, it is criminally punishable to disclose data from pre-trial proceedings or closed court proceedings by a person who has been warned in accordance with the procedure established by law about the inadmissibility of their disclosure if the disclosure of data from pre-trial proceedings is committed without the consent of the prosecutor or investigator, as well as data from closed court proceedings without the consent of a judge.

In accordance with part 1 of Article 315 of the Criminal Code of the Republic of Moldova, disclosure of criminal prosecution data entails criminal punishment only when it is done contrary to the prohibition of persons conducting criminal prosecution.

Thus, all of these jurisdictions, when deciding on the grounds of liability, focus on the following elements::

1. The person must be officially warned about the inadmissibility of disclosure.

2. Liability occurs in the absence of consent or a ban from the authorized body.

3. The inclusion of the condition that liability occurs only for persons who have been officially warned in accordance with the procedure established by law precludes unjustified and arbitrary prosecution.

4. The principle of legal certainty regarding who is responsible for disclosure is respected.

In this regard, there is an obvious need to return to the unambiguous and non-arbitrary interpretation of the content of a similar rule in the legislation of the Republic of Kazakhstan.

5. The position of the Republican Bar Association and its justification

Lawyers, performing their professional duties, strictly comply with the requirements of the law, including the obligation not to disclose pre-trial investigation data in cases stipulated by law. At the same time, the legal profession emphasizes the importance of a balanced approach that takes into account both the interests of the investigation and the principles of openness, transparency and freedom of expression necessary to ensure fair justice.

It is important to note that the law does not provide for an absolute ban on the dissemination of any information about the investigation of criminal cases. The existence of such a ban would not correspond to the objectives of the criminal process and the fair resolution of the criminal case. A ban on the dissemination of any information about the criminal process may serve the interests of one of the parties, act as a means of concealing abuses and illegal methods of conducting the process.

A lawyer is not a subject of an offense under Article 423 of the Criminal Code, unless he has been warned about the inadmissibility of disclosure of data, for the following reasons:

1. The Law "On Access to Information" does not allow restrictions on access to information about violations of rights and freedoms, as well as violations of the rule of law.

2. The use of the wording of Article 423 of the Criminal Code "data that became known for other reasons" is not permissible in relation to a lawyer.

3. The person conducting the pre-trial investigation has an unconditional duty to warn the defender about the inadmissibility of disclosing only the information available in the case without his permission.

4. The use of information that is already in the public domain cannot be regarded as disclosure of data from pre-trial proceedings.

5. The Law does not establish lists of pre-trial and pre-trial investigation data and does not specify which of these data are not subject to dissemination.

6. A public statement by a lawyer about the innocence of his client cannot be qualified as disclosure of data from pre-trial proceedings.

7. Public statements by a lawyer about violations committed during a pre-trial investigation do not constitute disclosure of pre-trial proceedings.

1) The Law "On Access to Information" does not allow restrictions on access to information about violations of rights and freedoms, as well as violations of the rule of law.

The Law of the Republic of Kazakhstan "On Access to Information" establishes the right of every citizen to receive reliable information about the activities of state bodies, including the activities of pre-trial investigation bodies. This principle is of particular importance in the context of ensuring the transparency of justice and public control over the rule of law.

This Law has established that access to information is not subject to restriction.:

- on the facts of violation of human and civil rights and freedoms (subparagraph 6) of Article 6);

- facts of violations of the law by information holders and their officials (subparagraph 11) of Article 6).

Lawyers, performing their professional duties, often become a source of information about violations committed during the pre-trial investigation. In this context, the Law on Access to Information plays a key role, as it allows lawyers, within the framework of legislation and ethical standards, to inform the public about problems related to violations of the rights of a client or abuses by investigative authorities.

Public statements by lawyers aimed at eliminating violations or protecting the interests of the client often overlap with the public's right to know about the actions of government agencies.

If the Law "On Access to Information" prohibits the restriction of specified information, then it cannot be considered prohibited a priori, and therefore its use cannot be punishable.

The data would not be allowed to be used in cases where such use could lead to negative consequences for the investigation, for example, to prevent the search for a wanted person or to help conceal evidence. If there are no such threats, then blocking access to information is unjustified and unlawful. A different interpretation of the provisions of the law will lead to the concealment of any violations, and this cannot be the purpose of law enforcement agencies or the purpose of justice in general.

While the Law on Access to Information provides citizens with the right to receive information, article 423 of the Criminal Code regulates the protection of pre-trial data from disclosure. These norms should not contradict each other. The use of information about violations or abuses that is not related to the case file cannot be considered a violation of Article 423 of the Criminal Code, because:

1. Such information belongs to the sphere of public control and accountability of state bodies, which means it is of great importance for the public good, ensuring legality and social justice.

2. Lawyers, acting within the framework of the Law "On Access to Information", exercise their right to use legitimate means of protecting the client.

Thus, the Law on Access to Information emphasizes the importance of transparency, especially when it comes to the protection of human rights. Lawyers use public statements to increase confidence in the justice system and prevent abuse. Attempts to limit such statements run counter to the principle of openness and undermine the balance between protecting the interests of the investigation and the public's right to know about violations.

2) The use of the wording of Article 423 of the Criminal Code "data that became known for other reasons" is unacceptable in relation to a lawyer

The new version of Article 423 of the Criminal Code expanded the list of subjects of a crime to include "a person to whom the data of the pre-trial proceedings were entrusted or became known through service, work or other grounds provided for by the law of the Republic of Kazakhstan." However, the application of this wording to a lawyer is unlawful, since a lawyer has a special public law status, and his powers are regulated by the CPC and the Law "On Advocacy and Legal Assistance."

According to article 70 of the CPC, a lawyer acting as a defender has the right:

- immediately from the moment of joining the case, get acquainted with part of the materials of the criminal case, make copies of them, and at the end of the pre-trial investigation, do this with all the materials in full (sub-paragraphs 5), 8), 9) of Part 2).

- use any means and methods of protection that do not contradict the law (subparagraph 12) of Part 2).

Article 33 of the Law "On Advocacy and Legal Assistance" establishes the rights of a lawyer, including:

- request and receive information necessary for the practice of law (subparagraph 2) of paragraph 3);

- familiarization with materials related to the person who requested help, including procedural documents, investigative and court cases, and recording the information contained therein in any way not prohibited by law (subparagraph 4) of paragraph 3);

- the use of all means and methods not prohibited by law to protect the rights and legitimate interests of persons who have applied for legal assistance (subparagraph 9) of paragraph 3).

The existence of these powers does not equate a lawyer to "a person to whom the data of the pre-trial proceedings became known on other grounds provided for by the law of the Republic of Kazakhstan." Although the lawyer's powers to review the case materials are provided for by law, using them he performs the function of protection aimed at ensuring the rights of his client.

A lawyer is an independent participant in the criminal process, representing the defense. The use of data from the case file for legitimate defense purposes cannot be considered their "disclosure", as this is the exercise of the rights and duties of a lawyer, enshrined in the CPC and the relevant law. The lawyer gets access to the case file solely for the purpose of exercising the client's right to defense. This is different from a situation in which information is "trusted" or "becomes known" as part of the performance of official or work duties, as implied in Article 423 of the Criminal Code of the Republic of Kazakhstan. Unlike those who carry out criminal prosecution (investigators, interrogators, prosecutors) or other persons who have gained access (office workers, journalists), a lawyer does not "receive" case materials as part of his official duties, but acts solely in the interests of the client.

The legal status of a lawyer differs significantly from that of other persons who have access to pre-trial proceedings (journalists, witnesses, translators, technical specialists). In contrast, a lawyer is obliged to protect the client's interest by all available means. And public coverage of violations committed during the investigation is one of the means of protection. Such coverage cannot interfere with the investigation and does not create obstacles to solving the crime.

The law does not restrict a lawyer from using case materials to defend a client. This excludes the possibility of holding a lawyer accountable for actions committed in the framework of the defense, if they do not exceed the scope of the rights and duties of a lawyer.

The lawyer's use of the data obtained in connection with access to the case file cannot be recognized as their disclosure, as this is the exercise of the rights and duties of a lawyer.

During the pre-trial proceedings, not the entire list of case materials is disclosed to the lawyer, but only a narrow part of it, specified in article 70 of the CPC. It specifically does not include materials and data that constitute the secrecy of the investigation, the disclosure of which may interfere with it. Thus, article 70 of the CPC sets limits that delimit the list of case materials necessary for a lawyer to work (including for use in defending a client, defending his position, building tactics, and applying them for the benefit of the client) from all other materials, familiarization with which may harm the interests of the investigation.

There is nothing prohibited for use by a lawyer in the list of data provided for in article 70 of the CPC. Similar information is available not only to the lawyer, but also to other participants in the process (for example, victims, their representatives).

Thus, the norms of the CPC, including Article 70, determine in advance the widest possible range of persons and data with which these persons can be acquainted. These individuals include both professional and non-professional participants in the process. At the same time, this circle can be narrowed by warning about non-disclosure and receiving a subscription. But it is impossible to assume that the entire volume of information on a criminal trial is closed by default, unless the process itself is closed.

If we agree that a lawyer is a subject of responsibility under Article 423 of the Criminal Code, without the need to withdraw his subscription, then it follows that any criminal proceedings in the Republic of Kazakhstan are closed in advance.

It should also be borne in mind that the use of pre-trial investigation data by a lawyer to protect a client is not socially dangerous, which is a sign of any criminally punishable act. The basis for criminal prosecution can only be disclosure, which has caused certain harm or created specific obstacles to achieving the objectives of the investigation, for example, would prevent the disclosure of the crime, contributed to the loss of evidence.

Bringing a lawyer to justice under Article 423 of the Criminal Code for using or publicly stating data related to violations during an investigation violates:

- The principle of competition and equality of the parties (Article 23 of the CPC), since it limits the possibilities of a lawyer to defend a client.

- The right to judicial protection and qualified legal assistance (article 13 of the Constitution), as it makes a lawyer vulnerable to pressure from investigative authorities.

Consequently, any attempts to extend the phrase "other grounds" to lawyers represent a distortion of the meaning of the legal norms governing advocacy. All the grounds on which a lawyer gets access to the case file are exhaustively fixed in the law, and his actions are aimed solely at observing the rule of law and protecting the rights of the principal.

In general, the vague and vague nature of the definition of the circle of persons liable under this article makes it impossible to specify the subject of this crime, which creates conditions for the unjustifiably widespread use of criminal repression in this part.

3) The person conducting the pre-trial investigation has an unconditional duty to warn the defender about the inadmissibility of disclosing only the information available in the case without his permission.

It should be borne in mind that Article 423 of the Criminal Code provides for liability for disclosure of pre-trial data, and article 201 of the CPC regulates the procedure for protection against disclosure of pre-trial investigation data.

In the context of criminal proceedings in the Republic of Kazakhstan, the terms "pre-trial data" and "pre-trial investigation data" are similar, but not equivalent.

The pre-trial data covers all stages of the pre-trial process, including actions from the beginning of the registration of a criminal complaint to the transfer of the case to court or its termination. They include materials collected during the pre-trial investigation, procedural decisions, as well as information about the actions of the prosecutor, as well as other persons and bodies. This term is broader, as it includes data not only from investigative actions, but also from all procedural measures and actions, in particular operational-investigative ones.

The term "pre-trial investigation data" is narrower and is directly related to the activities of the person conducting the pre-trial investigation to establish the circumstances of the crime, collect evidence and verify their admissibility. It includes only materials that are collected as part of investigative actions, such as interrogations, confrontations, searches, seizures, examinations, etc., that is, only those data that have been processed and have evidentiary value.

Thus, the volume of pre-trial data is broader, as it includes the entire set of materials collected at the pre-trial stage, and the volume of pre-trial investigation data is used to designate materials of specific investigative actions available in the case.

As can be seen from the content of part 2 of Article 201 of the CPC, the person conducting the pre-trial investigation is charged with warning the defender about the inadmissibility of disclosing only the information available in the case without his permission.

Thus, a lawyer can be held criminally liable under Article 423 of the Criminal Code only if he discloses the data of the pre-trial proceedings that are in the case.

4) The use of information that is already in the public domain cannot be regarded as disclosure of data from pre-trial proceedings.

One of the difficulties in applying Article 423 of the Criminal Code is the situation when the information included in the materials of the pre-trial proceedings was already in the public domain before it was officially included in the case. For example, information about an alleged crime could have been announced in the media, social networks, or public statements long before the registration of the statement or the start of the investigation. In such cases, it is extremely difficult to identify the source of the original information, as well as to distinguish between the data contained in the case file and the information that was publicly available.

A lawyer, performing his professional duties, may face a situation where the use of publicly available information to protect the interests of a client is perceived as disclosure of pre-trial investigation data. However, this perception does not always correspond to reality, because:

1. Information may be public before it is included in the case file. For example, statements by victims, witnesses, or others in the public environment (broadcasts, publications) form public opinion even before the investigation begins.

2. Public information does not lose its status due to the fact that it is included in the case file. This is especially important in cases where the data was previously freely available and access to it was not limited by data protection legislation.

Thus, the application of Article 423 of the Criminal Code in such situations requires extreme caution and consideration of all the circumstances of the case in order to prevent unjustified prosecution of a lawyer. The lawyer's use of data that was known to the general public should not be interpreted as a violation of the law if such actions are aimed at protecting the rights and interests of the client.

It should also be borne in mind that in modern conditions of information openness, lawyers play an important role in preventing abuse and ensuring fair justice. Their job involves using all legitimate means, including analyzing public information, to protect their clients.

5) The Law does not establish lists of pre-trial and pre-trial investigation data and does not specify which of them are not subject to dissemination.

The list of data constituting the preliminary investigation data, the dissemination of which is prohibited, is not defined by law. Currently, the decision on which information will be included in such data in each specific case depends on the discretion of the person conducting the pre-trial investigation. However, such discretion cannot be arbitrary. Excessive secrecy leads to a violation of the rights and legitimate interests of participants in the criminal process, both on the part of the prosecution and on the part of the defense. At the same time, excessive openness can negatively affect the investigation of a criminal case.

To eliminate this problem, it is necessary to legislate criteria that will help to clearly determine which data should be protected from disclosure. Such criteria should be formulated in such a way as to ensure a balance between:

1) the rights of the parties to the process, including the right to protection and to receive reliable information;

2) the need to ensure the secrecy of the investigation in order to protect public and state interests;

3) protection of the rights and freedoms of the participants in the process, including their privacy and security, not related to a specific criminal case;

4) between the right to cover violations and protected investigation data;

5) the adoption of such legislative measures will eliminate legal uncertainty, minimize the risk of arbitrary interpretation of norms and protect the interests of all participants in the criminal process.

When considering the issue of disclosure of data, the question must be taken into account: how information about the position of the defendant himself prevented the investigation, or any information that does not matter (for example, the fact of registration of a criminal case, the ERDR number), why such information has a semantic meaning for the interests of the investigation and prevents the investigation from reaching their goals.

The gratuitous secrecy of any information about an ongoing investigation does not meet the objectives of the criminal process, contradicts the goals of proportionality, fairness, and reasonableness. If information about the case has previously been published in the media or on social networks, then a ban on its commenting or refutation by a lawyer and other participants is unreasonable.

If a lawyer gets access to the data simply as a result of his entry into the case, then this does not impose mandatory restrictions on him. These restrictions apply within acceptable and fair limits.

Thus, until the law specifies the lists of pre-trial and pre-trial investigation data, specifying which of them are not subject to dissemination, the application of Article 423 of the Criminal Code.

6) Due to the absence of a list of pre-trial investigation data in the law, it is determined by the person conducting the pre-trial investigation.

Part 2 of Article 201 of the CPC specifically establishes a list of persons whom the person conducting the pre-trial investigation is obliged to warn about the inadmissibility of disclosing information available in the case without his permission. The list of these persons includes the defender and the representative of the victim. This provision is mandatory and does not leave the decision of this issue at the discretion of the person conducting the pre-trial investigation. Therefore, an explanation of the inadmissibility of disclosure of data and a warning about criminal liability for this violation is necessary for all persons who are involved in pre-trial proceedings in a criminal case, both directly and indirectly.

In this regard, data from pre-trial proceedings, the disclosure of which is unacceptable, should be understood as information protected by criminal procedure and criminal law, the scope of which is determined by the person conducting the pre-trial investigation.

Thus, failure to comply with the requirement to warn about the inadmissibility of disclosure of data from pre-trial proceedings and to warn about criminal liability for its violation by the person conducting the pre-trial investigation does not allow raising the issue of holding a lawyer accountable under Article 423 of the Criminal Code.

7) A public statement by a lawyer about the innocence of his client cannot be qualified as disclosure of data from pre-trial proceedings.

When a lawyer publicly declares his client's innocence (in particular, at a press conference or in mass media publications), such actions do not constitute disclosure of pre-trial data, since according to subparagraph 6) of Article 6 of the Law of the Republic of Kazakhstan "On Access to Information", access to information about violations of human rights is not subject to restriction. and the freedoms of man and citizen. In accordance with subparagraph 11) of this article, access to information about violations of the law by information holders and their officials is not subject to restriction.

The defendant and the victim have their own position on the case. The law does not prohibit voicing it. The content of the stated position cannot be equated with the investigation data. Publicly expressing a position cannot interfere with an investigation or make it impossible to solve a crime.

A lawyer acts in the interests of a client, and public statements can be part of a defense strategy, especially if it is related to the reputation of the client or the influence of the fact of criminal prosecution on public opinion regarding the client.

The Constitution guarantees everyone the right to defense (article 13), and a lawyer representing a client has the right to express his client's position. The statement of the client's innocence is based on the subjective position of the lawyer's client and the principle of presumption of innocence, which is absolute and cannot be limited by law.

Public statements about the innocence of the defendant do not violate ethical standards if they are aimed at protecting the client. The Constitution in article 77 and the CPC in article 19 enshrine the presumption of innocence: the accused is considered innocent until his guilt is proven and established by the court. The lawyer, declaring the innocence of the client, appeals to the basic principle of criminal proceedings, and does not violate the law.

8) Public statements by a lawyer about violations committed during the pre-trial investigation do not constitute disclosure of pre-trial proceedings.

In some cases, lawyers publicize their cases in connection with clear violations of the rights of their clients or the lawyers themselves, as well as in connection with inaction on the part of the prosecutor's office and investigating judges. At the same time, lawyers expect that informing the public about such violations in the criminal process will help eliminate the obvious violations committed by the criminal prosecution authorities.

A lawyer's statement about violations committed during the investigation, including public speaking, cannot serve as a basis for holding him accountable under article 423 of the Criminal Code.

Article 13 of the Constitution and articles 12, 27 of the CPC guarantee everyone the right to judicial protection and qualified legal assistance. The lawyer defends the client and is obliged to seek the elimination of violations committed during the pre-trial investigation.

According to subparagraph 9 of paragraph 3 of article 33 of the relevant Law, a lawyer, acting as a defender, is authorized to use all means and methods not prohibited by law to protect the rights and legitimate interests of persons who have applied for legal assistance. A statement about violations made by a lawyer is the fulfillment of his professional duty and cannot be interpreted as disclosure of data. When a lawyer claims violations, he has the right to use public statements as a defense tool, if this is not related to the disclosure of specific case materials.

Within the meaning of Article 423 of the Criminal Code, disclosure implies the transfer of specific data obtained during pre-trial proceedings to third parties without the permission of an authorized person. If a lawyer claims violations without disclosing specific information or case materials to third parties, such actions do not fall under the definition of disclosure.

An attempt to restrict a lawyer in such statements violates the principle of adversarial nature of the parties, enshrined in article 23 of the CPC, and jeopardizes the right to a fair trial.

Criminal proceedings are an object of public interest and the public has the right to know about violations committed during them. Ensuring publicity and public speaking is one of the tools of a lawyer's professional activity. The lawyer's statements about violations promote transparency and prevent abuse by the pre-trial investigation authorities. Restricting the right of a lawyer to make such statements undermines the credibility of justice.

6. Conclusions and proposals of the Republican Bar Association.

1. Bringing lawyers to criminal responsibility under Article 423 of the Criminal Code restricts their professional independence and violates the principal's right to defense.

2. The lawyer's active position in defending the interests of his client, including public statements about his innocence and violations of the law and human rights committed during the pre-trial proceedings, cannot be blamed on the lawyer and serve as a basis for his criminal prosecution.

3. Advocacy includes the analysis and use of materials from pre-trial proceedings to protect the client. This is not considered disclosure, since using information in the interests of protecting a client is not a violation of Article 423 of the Criminal Code if it is related to the performance of professional duties of a lawyer.

4. In any case, the actions of a lawyer defending a client may not fall under the scope of Article 423 of the Criminal Code, unless the case materials have been disclosed and the lawyer has been warned by the person conducting the pre-trial investigation about the inadmissibility of disclosing specific information available in the case upon receipt of a subscription in the prescribed form.

5. The involvement of a lawyer under Article 423 of the Criminal Code contradicts the principle of competition and equality of the parties established by Article 23 of the CPC, according to which the defender is obliged to use all means and methods provided for by law to protect the suspect, accused, defendant, convicted, acquitted, and the parties involved in the criminal process are equal, that is, endowed in accordance with the Constitution and CPC equal opportunities to defend their position.

6. The Law of the Republic of Kazakhstan "On Access to Information" establishes the right of citizens to receive reliable information about the activities of state bodies, which include pre-trial investigation bodies. Public statements by lawyers made within the framework of the law are aimed at protecting the rights of the client, eliminating violations and increasing the transparency of the process. Such statements contribute to strengthening public confidence in justice and the prevention of abuse. The restriction of the right of lawyers to make public statements based on article 423 of the Criminal Code may upset the balance between transparency and protection of the interests of the investigation, undermining the competitiveness of the process and the constitutional rights of citizens.

Currently, opinions have emerged opposing the positions of the legal profession under Articles 423 of the Criminal Code of the Republic of Kazakhstan and 201 of the Criminal Procedure Code of the Republic of Kazakhstan. This creates legal uncertainty. Due to the possible ambiguous interpretation of the norms, the Republican Bar Association proposes to introduce the following amendments to the legislation:

1. Article 423 of the Criminal Code should be worded as follows:

"Article 423. Disclosure of data from pre-trial proceedings or closed court proceedings

Disclosure of data from pre-trial proceedings or closed court proceedings by a person warned in accordance with the procedure established by the law of the Republic of Kazakhstan about the inadmissibility of their disclosure, or by a person to whom they were entrusted or became known in the service, if the disclosure of data from pre-trial proceedings was made without the consent of the prosecutor, as well as data from closed court proceedings without the consent of the judge, and led to obstruction of the investigation or the judicial proceedings of the case or the violation of the rights of citizens or legal entities - is punishable by a fine of up to two thousand monthly calculation indices, or correctional labor in the same amount, or community service for up to six hundred hours, or restriction of liberty for up to two years, or imprisonment for the same term."

2. Article 201 of the CPC should be worded as follows:

"Article 201. Inadmissibility of disclosure of pre-trial investigation data

1. The data of the pre-trial proceedings are not subject to disclosure. They may be made public only with the permission of the prosecutor to the extent that they deem it possible, if it does not contradict the interests of the investigation and does not involve a violation of the rights and legitimate interests of others.

2. The person conducting the pre-trial investigation shall warn the defense attorney, witnesses, the victim, the civil plaintiff, the civil defendant or their representatives, the expert, specialist, translator, witnesses and other persons present during the investigative actions about the inadmissibility of disclosure without his permission of information that became known to them in connection with participation in the proceedings., about which a subscription with a liability warning is withdrawn from the specified persons.

3. The data of the pre-trial investigation are not disclosed.:

1) transfer of information on a criminal case set forth in requests, petitions, statements, complaints and other procedural documents emanating from participants in the process in accordance with the procedure provided for by this Code;

2) submission of information on a criminal case to a person involved in it by a defender, a representative of the victim on a contractual basis as an expert, specialist, provided that he is familiar with his responsibility under Article 423 of the Criminal Code of the Republic of Kazakhstan and gives him a written obligation not to disclose this information without the consent of the person conducting the pre-trial investigation or the prosecutor with by issuing a corresponding receipt;

3) submission to the authorized body for asset recovery of information related to the illegal acquisition and withdrawal of assets obtained during criminal proceedings.

4) dissemination of information about violations of human rights and the rule of law in a criminal case."

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