Commentary on Article 28. Exemption from the Obligation to Give Testimony of the Criminal Procedure Code of the Republic of Kazakhstan

1. No one is obliged to give testimony against themselves, their spouse, or their close relatives, the circle of whom is defined by this Code.

2. Clergymen are not obliged to testify against persons who have confided in them during confession.

3. In the cases provided for in Parts One and Two of this Article, the specified persons have the right to refuse to give testimony and may not be subjected to any liability whatsoever for doing so.

Article 28 is also an expression of the principle of international law (subparagraph “g” of paragraph 3 of Article 14 of the ICCPR) and the Constitution (subparagraph 7) of paragraph 3 of Article 77), which proclaim humane and moral principles, the observance of which in criminal proceedings is absolute and indisputable. This concerns the testimonial privilege against giving testimony by persons who are closely related to one another (see the commentary on subparagraph 11) of Article 7 of the CPC). Otherwise, this would appear unnatural and inhumane. However, this is a right, not an obligation, of persons closely related to the perpetrator of a crime, as well as of the accused themselves. This principle is closely connected with other principles of criminal proceedings (the right to defence, the presumption of innocence, personal inviolability, etc.) and operates at all stages of criminal proceedings.

Giving testimony concerning the suspicion existing against them is the right of a suspect (subparagraph 6) of Part 9 of Article 64, Part 2 of Article 115 of the CPC); giving testimony concerning the charge brought against them is the right of an accused (Part 5 of Article 65 of the CPC).

Consequently, the aforementioned persons also have the right to refuse to give testimony against themselves during the investigation of a criminal case and bear no legal liability whatsoever for doing so (subparagraph 8) of Part 9 of Article 64, Part 5 of Article 65, Part 2 of Article 216 of the CPC). The only consequence is that, by doing so, they may narrow the scope of their legal defence in the criminal case. The task of the inquiry officer and investigator is to explain to such persons the significance of their testimony for the proper resolution of the criminal case on its merits. I emphasise that whether to exercise this right or not (whether to give or not to give testimony concerning the suspicion or charge) is the unconditional right of the suspect and the accused.

3. The position of strict adherence to the requirements of this principle is also evident when establishing the suspect's position regarding the suspicion brought against them, where the absence of an answer or refusal to answer is equated with the fact that they have not admitted their guilt (Part 2 of Article 216 of the CPC); similarly, when establishing the defendant's position regarding the substance of the charge brought against them, the law interprets and equates their silence with a denial of guilt (Part 2 of Article 365 of the CPC); the defendant may refuse to give testimony in court (Part 2 of Article 367, subparagraph 1) of Part 1 of Article 368 of the CPC). In such situations, the use of prohibited methods for the purpose of obtaining testimony from the accused or defendant at any cost is categorically prohibited.

The privilege against giving testimony against oneself and one's close relatives extends to witnesses who have the right to defence, ordinary witnesses, and victims. If they do not exercise this right and wish to give testimony against a close relative, they (except for a witness who has the right to defence) are warned by the investigator of criminal liability for knowingly giving false testimony (Part 2 of Article 214, Part 2 of Article 370 of the CPC).

The CPC also protects religious relations and people's religious feelings by prohibiting the examination of clergymen as witnesses against persons who have confided in them during confession (subparagraph 4) of Part 2 of Article 78, Part 2 of Article 370 of the CPC). In all other cases, they may be examined in this capacity.

Failure to explain the rights provided for in Article 28 of the CPC to a participant in the proceedings, or explaining them incompletely or incorrectly, entails recognition of the testimony of a witness who has the right to defence, a witness, a victim, a suspect, or an accused as having no evidentiary value in the criminal case (subparagraph 2) of Part 1 of Article 112 of the CPC).

In the context of these considerations, it is important to bear in mind that the right to testimonial privilege does not extend to other participants in criminal proceedings (a civil claimant, a civil defendant, etc.).

Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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