Commentary on Article 53. Powers of the Court of the Criminal Procedure Code of the Republic of Kazakhstan

• 1. The powers of the court as an organ of judicial authority shall be determined by law.
• 2. Only the court shall have the authority to:
• 1) find a person guilty of committing a criminal offense and impose a punishment on that person;
• 2) apply compulsory medical measures or compulsory educational measures to a person;
• 3) revoke or amend a decision adopted by a lower court;
• 4) review judicial acts on the basis of newly discovered circumstances;
• 5) authorize a preventive measure in the form of detention, house arrest, extradition arrest, or bail, selected by an investigator, inquiry officer, inquiry body, or prosecutor in respect of a suspect or accused person, and extend the periods thereof;
• 5-1) authorize the conduct of covert investigative actions and the extension of their periods, as well as extend the period for notifying a person of covert investigative actions conducted against that person, and grant consent to the pre-trial investigation body not to notify the person of covert investigative actions conducted against that person;
• 6) authorize procedural coercive measures in the form of temporary suspension from office and a prohibition on approaching, in respect of a suspect or accused person;
• 7) forcibly place a person who is not in custody in a medical organization for the purpose of conducting a forensic psychiatric and (or) forensic medical examination;
• 8) authorize the exhumation of a corpse, the announcement of an international search, the seizure of property, inspection, search, seizure of objects and documents, and personal search;
• 9) authorize the compulsory collection of samples and examination.
• 3. In the cases and in the manner provided for by this Code, the court shall:
• 1) consider complaints against decisions and actions (inaction) of the criminal prosecution body and the prosecutor;
• 2) upon the motion of the prosecutor or defense counsel, preserve the testimony of a witness and a victim;
• 3) impose monetary and administrative penalties;
• 4) consider issues related to the execution of a judgment;
• 5) consider the prosecutor's motion for the confiscation, prior to the delivery of a judgment, of property obtained by unlawful means.
• 4. If, during the judicial consideration of a case, circumstances that contributed to the commission of a criminal offense, violations of the rights and freedoms of citizens, as well as other violations of the law committed during the pre-trial investigation, are identified, the court shall issue a separate ruling drawing the attention of the relevant organizations or persons to these circumstances and facts of violations of the law that require the adoption of necessary measures. The court shall also be entitled to issue a separate ruling in other cases if it considers this necessary.
• 5. A separate ruling shall not be issued in respect of a lower court (judge). Violations of the law committed by a lower court that resulted in the revocation or amendment of a judgment or ruling shall be indicated in the judicial act of the higher judicial instance. If facts of acts constituting the elements of other criminal offenses or acts entailing administrative or disciplinary liability are established, the court shall issue a separate ruling addressed to the relevant prosecutor for the adoption of measures provided for by law.
• 6. In cases provided for by law, in the cases being considered, a judge shall have the right to request operational records files, materials of counterintelligence activities and covert investigative actions of the inquiry bodies relating to the case under consideration, and to examine them, with the exception of information not subject to disclosure concerning the organization of operational-search activities, counterintelligence activities and covert investigative actions, specific operational-search and counterintelligence measures and covert investigative actions, as well as sources and methods of obtaining information.

- Note. Article 53 was amended by the Laws of the Republic of Kazakhstan dated 31 October 2015 No. 378-V (shall enter into force on 1 January 2016); dated 28 December 2016 No. 36-VI (shall enter into force upon the expiration of two months from the date of its first official publication); and dated 21 December 2017 No. 118-VI (see Article 2 for the procedure for its entry into force).

Justice in the Republic of Kazakhstan shall be administered exclusively by the court, as proclaimed in paragraph 1 of Article 75 of the Constitution. In administering justice, a judge shall be independent and subordinate only to the Constitution and the law, as further provided in paragraph 1 of Article 77 of the Constitution of the Republic of Kazakhstan. These provisions concerning justice already demonstrate that the principal role in criminal proceedings is assigned to the court, while its governing procedural law, in addition to the provisions of the Constitution, is the CPC, which establishes the sources of legislation determining the procedure for criminal proceedings (see the commentary to Article 1). The CPC extends the powers of the court, as the bearer of judicial authority, to both the pre-trial and judicial stages of criminal proceedings (Part 1 of Article 53 of the CPC). This is reasonable in that no one has the right to appropriate the powers of a court or judge in a particular criminal case. Therefore, the presence of an investigating judge at the pre-trial stages is intended to prevent an inquiry officer or investigator from becoming, or assuming the role of, a judge, and to ensure the promptest possible progress of a criminal case to the judicial instances.

In essence, the concept of justice administered by the court is disclosed in Parts 2 and 3 of Article 53 of the CPC and is not subject to extensive interpretation. This concept encompasses judicial functions at all stages of criminal proceedings: the exercise by an investigating judge of comprehensive judicial control during the pre-trial investigation of a criminal case; consideration of a criminal case on its merits by a court of first instance, with the adoption of final judicial acts; review of judicial decisions by higher courts; execution of judicial decisions; and the performance of other judicial powers. This involves full judicial authorization of procedural actions, including investigative actions during the pre-trial investigation; provision of assistance to participants in the pre-trial investigation in securing evidence; the possibility of directly applying criminal procedural and administrative sanctions to participants in criminal proceedings for violations of the requirements of the CPC; and the confiscation of property obtained unlawfully prior to the delivery of a judgment in the case.

3. The procedural activities of an investigating judge at the pre-trial investigation stage of a criminal case must in no way be regarded as a factor strengthening the position of either party to the criminal proceedings. On the contrary, the judge's participation at this stage equalizes the positions of the parties in the case and serves as a guarantee of judicial protection of the rights and freedoms of individuals and citizens against unlawful criminal prosecution. Criminal procedural legislation has been developing in this direction in recent years, whereby the right to authorize arrest and detention was assigned to the courts by the Constitution (paragraph 2 of Article 16) and further developed through the introduction into the CPC of the institution of the investigating judge, vested with the authority to grant all authorizations (permissions) during the pre-trial investigation of a criminal case and to resolve other issues relating to the criminal case.

The activities of the court cannot be reduced solely to the administration of justice in a criminal case. Such an approach impoverishes our understanding of the procedural activities of the court. In accordance with the provisions of the CPC, the court also plays a significant role in preventing new criminal offenses and exerting a profound educational influence on all participants in criminal proceedings. For this purpose, the court is authorized to issue, simultaneously with a judicial decision, a separate ruling of a preventive nature, by which it draws the attention of the relevant organizations and officials to the causes and conditions identified in the case that contributed to the commission of a criminal offense, as well as to violations of the law by criminal prosecution bodies (Parts 4–5 of Article 53 of the CPC). For example, by means of a separate ruling, the court may supplement the investigator's preventive activities in a criminal case, information about which must be included both in the indictment (this constitutes part of the investigator's work required by Part 4 of Article 113 of the CPC) and in the copy of the investigator's submission attached to the case pursuant to Article 200 of the CPC.

The list of grounds for issuing separate rulings is not exhaustive, as the Supreme Court indicates in Regulatory Resolution No. 11 dated 19 December 2003, “On the Practice of Issuing Separate Rulings by Courts in Criminal Cases.” Accordingly, courts are entitled to respond to other facts as well: disruptions of court proceedings, manifestations of disrespect towards the court, and violations of procedural time limits by bodies conducting criminal proceedings. The court may also issue a separate ruling of an encouraging nature.

In accordance with Part 5 of Article 23 of the CPC, the court is not a criminal prosecution body, does not act on the side of the prosecution or the defense, and does not represent any interests other than the interests of law. Therefore, if the causes and conditions that contributed to the commission of a crime resulted from the actions or omissions of an official or another person and contain elements of a criminal offense, the court shall not have the right to raise the issue of bringing such persons to criminal liability in a separate ruling; it may only bring this fact to the attention of the bodies within whose competence the resolution of such issues falls.

Courts of appellate and cassation instances shall be entitled to issue separate rulings on the basis of the materials of judicial proceedings if they identify circumstances that contributed to the commission of a crime, violations of the rights and freedoms of citizens, as well as other violations committed during inquiry or preliminary investigation. The issuance of a separate ruling by a court shall not prevent higher courts from issuing their own separate rulings where other circumstances requiring such a response exist in the same case (paragraphs 3–6).

For example, upon discovering facts of improper performance of their duties by lawyers (formal participation in the defense, signing blank forms of procedural actions, failure to respond to violations of the law committed during criminal proceedings, and others), courts shall be entitled to respond by issuing separate rulings (paragraph 26 of Regulatory Resolution No. 26 of the Supreme Court dated 6 December 2002, “On the Practice of Applying Criminal Procedural Legislation Regulating the Right to Defense”).

Failure by an official to consider a separate determination or ruling of a court, a submission of a prosecutor, investigator or inquiry officer, or failure to take measures to eliminate the violations of the law specified therein, as well as failure to respond in a timely manner to a separate determination, ruling or submission, shall entail a fine in the amount of eight monthly calculation indices (Article 664 of the Code of Administrative Offenses).

It should be noted that violations of the law committed by lower courts (judges) that resulted in the revocation or amendment of a judgment or ruling shall not constitute the subject matter of a separate ruling by a higher court, as this is not permitted by law. These violations, which is entirely logical and consistent with the constitutional status of all judges, shall be reflected in judicial decisions of higher courts, through which correction (revocation or amendment) of judicial decisions of lower courts may be carried out.

An additional preventive instrument available to the court is its right to impose monetary or administrative penalties, where the grounds provided for by the CPC (Articles 159–160) and the Code of Administrative Offenses are present, on participants in criminal proceedings and other persons, with the exception of persons in respect of whom a conviction has been delivered. Alternatively, the court may issue a separate ruling addressed to the relevant prosecutor in order to refer the issue of bringing a person to criminal, administrative or disciplinary liability.

In this regard, the Supreme Court draws the attention of courts to the fact that, in accordance with the current legislation, when a case is being considered by a court, if public order is violated in the courtroom or disrespect towards the court is manifested, the court shall have the right, by its ruling, to subject the guilty person directly in the courtroom to the penalties provided for by administrative legislation. The actions of the court (judge) in imposing an administrative penalty on a person guilty of violating public order in the courtroom or showing disrespect towards the court must be reflected in the minutes of the judicial proceedings. Such actions of a higher court shall be recorded in the minutes of the court hearing only in cases where, in accordance with the law, such minutes are maintained. A decision to impose an administrative penalty shall, in all cases, be formalized in the form of a separate reasoned ruling.

Administrative penalties for disrespect towards the court and other offenses committed outside the courtroom shall be imposed by the court in the general procedure in accordance with the provisions of the Code of Administrative Offenses. In accordance with Part 3 of Article 684 of the Code of Administrative Offenses, administrative cases concerning manifestations of disrespect towards the court by a person present at the proceedings shall be considered by the judge presiding over the judicial proceedings in accordance with the procedure provided for in Part 1 of Article 346 of the CPC, Articles 119–120 of the Civil Procedure Code, and Article 653 of the Code of Administrative Offenses (paragraph 10 of Regulatory Resolution of the Supreme Court dated 14 May 1998, “On Certain Issues of Applying Legislation on Judicial Authority in the Republic of Kazakhstan”; see also the commentary to Article 1 of the CPC).

Among the powers of the court is its right to actively intervene in the sphere of operational-search activities of inquiry bodies and counterintelligence activities of special state bodies (Part 6 of Article 53 of the CPC). The evident penetration of the methods of operational-search and counterintelligence activities into criminal proceedings, in the form of using their results in criminal proceedings or conducting covert investigative actions through the application of the forms and methods of operational-search activities, significantly increases the responsibility of judges for the quality and reliability of evidence collected in this manner, since, with the exceptions provided for by law, the methods of these types of activities and covert procedural actions are not carried out by the body or official conducting the criminal proceedings themselves. In this regard, when examining evidence in a case, the court shall be entitled to examine operational records files and materials of covert investigative actions within the permissible limits established by legislation on state secrets and the CPC.

In this regard, the Supreme Court also noted that, for the purpose of ensuring compliance with the requirements of Part 1 of Article 24 of the CPC, all available operational and official documents relating to the criminal case under consideration must be provided to the judge upon request, in accordance with subparagraph 4 of Article 5 of the Law of the Republic of Kazakhstan dated 15 September 1994, “On Operational-Search Activities.” This shall exclude information concerning the identities of confidential assistants and full-time covert officers. At the same time, when examining the requested documents, the court shall take the necessary measures to prevent the disclosure of results of operational-search activities that have not been used in criminal proceedings, as well as other information that is not subject to declassification, including information concerning the organization of operational-search activities, specific operational-search measures, sources and methods of obtaining information, and the like (paragraph 15 of Regulatory Resolution No. 3 of the Supreme Court dated 13 December 2013, “On the Application in Criminal Proceedings of Certain Provisions of Legislation Regulating Issues of the Protection of State Secrets”).

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

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