Principles of Criminal Proceeding

The significance of the principles of criminal procedure shall lie in the fact that their violation, depending on their nature and importance, shall entail invalidity of the conducted proceedings on a case, a reversal of the decisions made during such proceedings or a declaration that the collected materials shall not be admitted as evidences.

Legality. Court, prosecutor, investigator, body of inquiry and interrogating officer in the course of the criminal proceedings must accurately follow requirements of the Constitution of the Republic of Kazakhstan, the Criminal procedure Code and other regulatory legal acts.

Courts shall not have the right to use laws and other regulatory legal acts which derogate from human and civil rights and freedoms secured by the Constitution. If a court finds that a law or another regulatory legal act to be applied derogates from the human and civil rights and freedoms secured by the Constitution, it must suspend the proceedings on a case and apply to the Constitutional Council of the Republic of Kazakhstan with a proposal to recognize that act as unconstitutional. Decisions of courts and criminal prosecution bodies based on the law or another legal act recognized as unconstitutional shall not be enforced.

Violation of law by court, criminal prosecution bodies in the course of criminal proceedings shall be impermissible and shall entail liability established by law, recognition of unlawful acts as invalid and their repeal.

Administration of justice by court only. Justice on criminal cases in the Republic of Kazakhstan shall be carried out only by court. Usurpation of court’s powers by anyone shall entail liability stipulated by law. No one may be declared guilty of committing a crime or subjected to a criminal punishment otherwise than pursuant to a sentence of a court and in accordance with law.

Competence of a court, framework of its jurisdiction, the order of implementation of court proceedings by it shall be determined by law and may not be changed arbitrarily. Establishment of extraordinary or special courts under any name to consider criminal cases shall not be allowed. Sentences and other decisions of extraordinary courts and other unlawfully established courts shall be invalid and may not be enforced.

A sentence and other decisions of a court which has conducted criminal proceedings on a case outside its jurisdiction, has exceeded its powers or has otherwise violated principles of criminal proceedings stipulated by the Criminal procedure Code shall be unlawful and subject to repeal.

Sentence and other decisions of a court on criminal case may be reviewed and reconsidered only by corresponding courts in accordance with the order stipulated by the Criminal procedure Code.

Judicial protection of human and civil rights and freedoms. Everyone shall have the right to obtain judicial protection of his own rights and freedoms. Jurisdiction provided by law may not be changed for anyone without that person's consent. The State shall provide the victim with access to justice and compensation for damages in cases and order stipulated by law.

Respect for honor and dignity of a person. During proceedings on a criminal case, decisions and actions which humiliate or belittle the honor of a person participating in the criminal proceedings shall be prohibited; it shall not be allowed to collect, use or spread information about private life, or personal information that such person considers necessary to keep private, for reasons not prescribed in the Criminal procedure Code.

Moral damage caused to a person by unlawful actions of the bodies conducting the criminal proceedings shall be subject to compensation in the procedure established by law.

Inviolability of a person. Nobody may be detained on suspicion of commission of a crime, arrested or otherwise deprived of liberty otherwise than on the grounds and in accordance with the order established by the Criminal procedure Code.

Arrest and detention in custody shall be allowed only in cases stipulated by the Criminal procedure Code and only with the sanction of a court with granting to the arrested a right of court appeal. Without sanction of a court a person may be subjected to detention for no more than seventy two hours. Compulsory placement of the person who is not imprisoned into a medical organization to carry out forensic psychiatric expert examination shall be allowed only pursuant to a court decision. Compulsory placement of the person who is not imprisoned into medical organization to carry out forensic psychiatric expert examination shall be allowed only pursuant to the decision of the court or with the sanction of a prosecutor.

Each detainee shall be immediately informed of the grounds for his detention as well as of legalification of a crime in which he is suspected or prosecuted.

A court, criminal prosecution bodies must immediately release the unlawfully detained or arrested person or a person who was unlawfully placed into a medical organization or detained in custody longer than the time stipulated by law or sentence.

None of the persons participating in a criminal procedure may be exposed to violence, cruel treatment or treatment degrading human dignity.

Nobody may be involved in participation in the procedural actions, which constitute a hazard to life or health of a person. Procedural actions violating inviolability of a person may be carried out against will of a person or his legal representative only in cases and in accordance with procedure directly stipulated by the Criminal procedure Code.

Keeping of a person with regards to which arrest is selected as a measure of restriction as well as the person detained on suspicion of a crime must be carried out in conditions excluding hazard to his life and health.

The damage caused to a citizen as a result of unlawful deprivation of freedom, having been kept in conditions dangerous to his life and health, or his cruel treatment shall be indemnified in accordance with the order stipulated by the Criminal procedure Code.

Protection of the rights and freedoms of citizens during criminal proceedings. The body conducting a criminal case must protect the rights and freedoms of the citizens participating in the criminal case, create conditions for their implementation, take timely measures for satisfaction of the legal requirements of the participants of the proceedings.

The damage caused to a citizen as a result of violation of his rights and freedoms during proceedings on a criminal case shall be indemnified on the grounds and in accordance with the order stipulated by the Criminal procedure Code. If there are sufficient grounds for that the victim, witness or other persons participating in the criminal procedure as well as members of their families or other immediate relatives are threatened to murder, use of violence, destruction or damaging of property or other dangerous unlawful actions, the body conducting the criminal procedure within its competence must take measures stipulated by law for protection of life, health, honor, dignity and property of these persons.

Inviolability of private life. Privacy of correspondence, telephone conversations, postal, telegraphic and other communication. Private life of citizens, personal and family secret shall be under the protection of the law. Everybody shall have the right to secrecy of personal investments and savings, correspondence, telephone conversations, postal, telegraphic and other communication. Restrictions of these rights during criminal procedure shall be allowed only in cases and in the procedure immediately established by the law.

Inviolability of dwelling. Dwelling shall be inviolable. Invasion into dwelling against the will of people who occupy it, procedure of its inspection and search shall only be allowed in cases and in the procedure established by the law.

Inviolability of property. Ownership shall be guaranteed by the law. Nobody may be deprived of his property otherwise than pursuant to a decision of the court.

Imposition of arrest on investments of persons in banks and on other assets as well as seizure of those assets during procedural actions may be carried out in cases and in the procedure provided for by the Criminal procedure Code.

Presumption of innocence. Everybody shall be deemed innocent until his culpability in a commission of a crime is proven in accordance with the procedure established by the Criminal procedure Code and as established by a court sentence which entered into legal force. Nobody shall be obliged to prove his innocence.

Unresolvable doubts with regard to the culpability of an accused person shall be interpreted for his benefit. Any doubts which arise when applying criminal and criminal procedure laws must be settled for the benefit of the accused.

Sentence of guilt may not be based on presumptions and it must be confirmed by sufficient aggregation of credible evidences.

Impermissibility of a repeated conviction and criminal prosecution. No one may be repeatedly subjected to criminal liability for one and the same crime.

Administration of justice on the principles of equality before law and court. Justice shall be administered on the principles of everybody’s equality before the law and the court. During criminal proceedings no one may be subjected to any discrimination due to his origin, social, occupational and property status, sex, race, nationality, language, religious attitude, beliefs, place of residence or due to any other circumstances.

Conditions of criminal proceedings in respect of persons who have immunity to criminal prosecution shall be defined by the Constitution of the Republic of Kazakhstan, the Criminal procedure Code, laws and international treaties ratified by the Republic of Kazakhstan.

Independence of judge. A judge when administering justice shall be independent and subordinated only to the Constitution of the Republic of Kazakhstan and the law. Any interference into operation of the court with regard to administration of justice shall not be allowed and it shall entail legal accountability. Judges shall not be accountable for specific cases. Guarantees of independence of a judge are established by the Constitution of the Republic of Kazakhstan and the law.

Conduct of court proceedings on the basis of competitiveness and equality of the parties. Criminal proceedings shall be carried out on the basis of the principle of competitiveness and equality of the parties of prosecution and defense.

Criminal prosecution, defense and settlement of a case by the court shall be separated from each other and they shall be exercised by different bodies and official persons. The burden of proof brought against the accused shall rest with the prosecutor. The defense lawyer shall be obliged to use all the remedies and methods for the protection of the accused provided for by law.

The court shall not be a criminal prosecution body, it shall not act on the side of prosecution or defense and it shall not express any interests aside from interests of the law.

The court retaining objectivity and impartiality shall create appropriate conditions for the performance by the parties of their procedural duties and for the exercise of the rights granted to them.

The parties participating in criminal proceedings shall be equal, i.e. vested by the Constitution and the Criminal procedure Code with equal opportunities to stand their ground. The court shall base its procedural decision only on those evidences where both parties were provided with equal right to participate in investigation thereof.

The parties in the course of criminal proceedings shall select their position, methods and facilities for proving it independently and separately from the court, other bodies and persons. The court pursuant to a petition of a party shall render its assistance in obtaining necessary materials in the procedure provided for by the Criminal procedure Code.

The public prosecutor and the private prosecutor may exercise criminal prosecution of a certain person or in cases provided for by the law, adandon criminal prosecution. A suspect and an accused may freely deny their culpability or recognize themselves as guilty. A civil plaintiff shall have the right to abandon a lawsuit or to enter into an amicable agreement with a civil defendant. A civil defendant shall have the right to recognize a lawsuit or to enter into an amicable agreement with a civil plaintiff.

The court shall provide the parties with the right to participate in the consideration of a case with regard to the first and appeals instance; the accused and his defense lawyer shall be allowed when a case is considered in the procedure of cassation and supervision with regard to newly discovered circumstances. The prosecution party must be represented by a public prosecutor or a private prosecutor when the court is considering each criminal case.

Comprehensive, full and objective examination of circumstances of a case. The court, prosecutor, investigator, interrogating officer shall be obliged to take all measures provided for by law for comprehensive, full and objective examination of circumstances which are required and sufficient for correct settlement of the case.

Criminal prosecution bodies shall discover factual data on the basis of which the circumstances of importance for the case shall be substantiated. The court which handles a criminal case maintaining its objectivity and impartiality shall create for the parties of prosecution and defense appropriate conditions for the exercise of their rights to comprehensive and full examination of circumstances of the case.

Court shall not be bound by the opinion of the parties with regards to necessity and sufficiency of investigation of evidences existing in case and presented at the court hearing by the parties.

Circumstances which both convict and justify the accused as well as those which mitigate or aggravate his liability and punishment shall be subject to discovery with regard to case. The body which conducts a criminal procedure must check all the statements of innocence or lesser degree of culpability as well as those concerning availability of evidences which justify the suspect, the accused or those which mitigate their liability as well as petitions of use of unlawful methods of investigation when collecting and securing the case files as evidences.

Evaluation of evidences on the basis of inner conviction. The judge, the prosecutor, investigator, interrogating officer shall evaluate evidences on the bases of their inner conviction, based on the aggregation of considered evidences, relying in this respect on the law and their conscience. A juror shall evaluate the evidences on his inner conviction based on the aggregation of considered evidences, relying in this respect on conscience.

No evidences shall have predetermined force.

Provision of the right to defense to the suspect and the accused. A suspect or the accused shall have the right to defense. They may exercise this right either personally or with the assistance of a defense lawyer, legal representative in the procedure established by the Criminal procedure Code.

The body which conducts a criminal procedure shall be obliged to explain to the suspect and the accused their rights and to provide them with opportunity to be defended from prosecution with all the remedies which are not prohibited by the law as well as to take measures for the protection of their personal and property rights. In cases provided for by the Criminal procedure Code, the body which conducts the criminal procedure shall be obliged to ensure the participation of a defense lawyer of the suspect and the accused in case.

Participation of a defense lawyer and a legal representative of the suspect or the accused in criminal proceedings shall not diminish the rights which belong to the latter.

The suspect or the accused must not be compelled to provide testimony, submit any materials rendering any assistance to the criminal prosecution bodies. The suspect or the accused shall retain all guarantees of the right to defense belonging to them as well as when considering a criminal case in respect of a person who is accused of commission of a crime together with them.

Release from the duty to issue witness testimony. Nobody shall be obliged to testify against himself, his spouse and immediate relatives, the circle of which is defined by the law. Clergymen shall not be obliged to testify against those who confided in them through confession.

Provision of the right to qualified legal assistance. Everybody shall have the right to receive qualified legal assistance in the course of criminal procedures in accordance with the provisions of the Criminal procedure Code.

Legal assistance shall be rendered free of charge in cases provided for by the law.

Publicity. Proceeding of criminal cases in all courts and in all court instances shall be open. Restriction of publicity of a court procedure shall be allowed only when it contradicts to the interest of protecting state secrets. Therewith closed judicial proceeding shall be allowed on the basis of reasoned resolution of the court on cases of juvenile crimes, on cases of sexual crimes and other cases for the purposes of preventing disclosure of information concerning intimate side of life of persons participating in those cases as well as on the cases when it is required by the interests of safety of the victim, witness or any other participants in a case as well as their family members or immediate relatives. Complaints about acts and decisions of the body which exercises criminal prosecution considered by the court at pre-trial stage of the judicial process shall be considered by the court at a closed judicial session.

Proceeding of cases and complaints at a closed session shall be carried out in compliance with all the regulations as established by the Criminal procedure Code.

A court sentence and resolutions adopted on a case in all events shall be announced in public.

Language of criminal proceedings. Criminal proceedings in the Republic of Kazakhstan shall be carried out in the state language and, when necessary, Russian language or any other languages shall be used equally with the state language in the court proceedings.

The body which conducts the criminal procedure shall make reasoned resolution on the change of the language of proceedings if there is a need to conduct the case in Russian or other languages.

Persons who participate in a case and who have no command or have insufficient command of the language in which the proceedings on the case are carried out, shall be explained and given the right to make statements, provide explanations and testimonies, file petitions, file complaints, get acquainted with materials of the case, speak in the court in their native language or in any other language of which they have command; use interpreter services free of charge in the procedure established by the Criminal procedure Code.

Persons who participate in criminal proceedings shall be provided free of charge with translation of case materials which they need by virtue of law, and which are worded in a different language into the language of the criminal proceedings. Persons who participate in court proceedings shall be provided with translation free of charge into the language of court proceedings of those parts of court speeches which are in a different language.

The bodies which conduct criminal procedure shall hand in to the participants of the proceedings the documents which in accordance with the Criminal procedure Code must be handed to them in the language of court proceedings. In this case those persons who have no command of the language of the criminal proceedings shall be provided with a certified copy of a document in the language of proceedings selected by such persons.

Freedom to appeal procedural acts and decisions. Acts and decisions of a court and of a body of the criminal prosecution may be appealed in the procedure established by the Criminal procedure Code.

Each convicted person shall have the right to have his sentence revised by the higher court in the procedure established by the Criminal procedure Code as well as to plead pardon or mitigation of punishment. A person convicted by a court of a foreign state and transferred to serve his sentence in the Republic of Kazakhstan without conditions on the non-pardon shall also have the right to plead pardon or mitigation of a sentence.

It shall not be allowed to turn a complaint to harm the person who filed the complaint or to harm the person in whose interests it has been filed.

Used and recommended literature:

1. Толеубекова Б.Х. Уголовно-процессуальное право РК. Часть общая. Учебник. Алматы, 1998.

2. Баймолдина З.Х. Гражданско-процессуальное право РК. В-2-х томах. Учебник. Алматы, 2001.

3. Criminal Procedure Code of the Republic of Kazakhstan. Code of the Republic of Kazakhstan dated 13.12.1997 No. 206 // http://adilet.zan.kz/eng/

4. Civil Procedure Code of the Republic of Kazakhstan. Code of the Republic of Kazakhstan dated July 13, 1999 No. 411 // http://adilet.zan.kz/eng/

5. Keane and McKeown. The Modern Law of Evidence. Ninth Edition. Oxford University Press. 2012.

6. Neal R. Bevans. Civil Law Litigation for Paralegals. Career Education. 2007.

7. Criminal Law and Procedure by John M. Scheb, John M., II, John M Scheb. Edition 8Publisher: Cengage Learning, 2013.

Answer the following questions using the information from this text:

1. Does everybody have the right to be defended by a lawyer in the court irrespective of the kind of a crime?

2. What of the role of civil procedure?

3. What of the role of criminal procedure?

4. What are the goals of the civil process?

5. What are the goals of the criminal process?

6. What is the role of the judges?

7. What is the role of a court?

8. How do the juries differ from other bodies concerned with criminal procedure?

Дата добавления: 2014-10-17