Commentary on Article 99. Mandatory Consideration of Applications (Motions) by Participants in Criminal Proceedings of the Criminal Procedure Code of the Republic of Kazakhstan

1. Participants in criminal proceedings shall have the right to submit applications (motions) to the person conducting the pre-trial investigation, the prosecutor, or the judge (court) requesting the performance of procedural actions or the adoption of procedural decisions for the purpose of establishing circumstances relevant to the criminal proceedings and ensuring the rights and legitimate interests of the person submitting the application (motion) or the person represented by them.

2. Applications (motions) may be submitted at any stage of the proceedings. The person submitting an application (motion) must indicate the circumstances for the establishment of which they request that an action be performed or a decision be adopted. Written applications (motions) shall be attached to the materials of the criminal case, while oral applications (motions) shall be entered into the record of the investigative action or court hearing.

3. The rejection of an application (motion) shall not prevent its repeated submission at subsequent stages of criminal proceedings or before another authority conducting the criminal proceedings.

4. An application (motion) shall be considered and resolved immediately after its submission. In cases where an immediate decision on the application (motion) is impossible, it must be resolved no later than three days from the date of its submission.

5. An application (motion) must be granted if it contributes to a comprehensive, complete, and objective examination of the circumstances of the case or to ensuring the rights and legitimate interests of participants in the proceedings or other persons. In other cases, the application (motion) may be denied. The authority conducting the criminal proceedings shall not have the right to refuse an application (motion) requesting the examination, as specialists or witnesses, of persons whose attendance has been ensured by the parties. The authority conducting the criminal proceedings shall be obliged to assist the party in ensuring the attendance of the persons indicated by it for questioning, including through the application of procedural coercive measures provided for by law.

6. In the event of a full or partial refusal to grant an application (motion), the authority conducting the criminal proceedings shall issue a reasoned ruling, which shall be communicated to the person who submitted the application (motion). A decision on an application (motion) may be appealed in accordance with the general rules for filing and considering complaints established by this Code.

Traditionally, the authorities conducting criminal proceedings, by virtue of their statutory autonomy and independence, as well as the prohibition against interference by anyone in their procedural activities in criminal cases, conduct criminal proceedings on the basis of the evidence collected in the case. At the same time, this circumstance does not prohibit participants in the proceedings whose legal rights and interests are affected by the proceedings from submitting various applications (official requests) in the interests of establishing the circumstances of a criminal case reliably (see the commentary on subparagraph 33 of Article 7 of the Criminal Procedure Code).

Applications (motions) (Part 1 of Article 99 of the Criminal Procedure Code) constitute one of the important instruments available to participants in criminal proceedings, since they contribute to the proper resolution of issues relevant to the case. The submission of applications (motions) in a case should be regarded as a procedural guarantee of the legality and validity of the proceedings, the prevention of an accusatory bias, as well as one of the procedural means of ensuring the principles of adversarial proceedings and equality of the parties in the case, together with a comprehensive, complete, and objective examination of the circumstances of the criminal case. Through their applications, participants in the proceedings supplement the process of proving the circumstances of the criminal offence committed and thereby sometimes provide invaluable assistance to the authorities conducting the criminal proceedings in the case. The addressees of applications (motions) are the authorities conducting the criminal proceedings. The law considers the subject matter of applications (motions) to be procedural actions or procedural decisions which, in the opinion of a party, the authority conducting the criminal proceedings should perform or adopt in the interests of the case.

3\. The submission of applications (motions) in written or oral form, with their recording in the materials of the criminal case, respectively, by attaching them to the case file or entering them into the records of an investigative action or court hearing, is permitted at all stages of criminal proceedings, including repeatedly. As a rule, they are submitted before the commencement of a procedural action or after its completion. In general, the submission of applications (motions) is characteristic of the judicial stages and, presumably, is caused by a certain degree of distrust towards criminal prosecution authorities. The institution of the investigating judge serves to overcome this situation during the pre-trial investigation. The powers of the investigating judge include consideration of applications (motions) submitted by the parties to the pre-trial proceedings, including in cases where such applications (motions) have been rejected by inquiry officers or investigators (subparagraph 1 of Part 3 of Article 53, subparagraph 1 of Part 2 of Article 55, Parts 2–3 and 6 of Article 99 of the Criminal Procedure Code).

The law does not require a high degree of substantiation of an application (motion) submitted by a participant in the proceedings and obliges the authorities conducting criminal proceedings to accept and resolve them in all cases. The ruling of the authority conducting the criminal proceedings granting or refusing to grant (in whole or in part) the application (motion) submitted by a participant in the proceedings must be reasoned. The specific nature of an application (motion) presupposes its prompt consideration and the adoption of a decision thereon by the authority conducting the criminal proceedings (immediately, directly after its submission), but no later than three days from the date of submission (Parts 4–5 of Article 99 of the Criminal Procedure Code).

Applications (motions) may concern various matters; they may be granted or rejected. However, regardless of this, the law obliges the authorities in all cases to grant those applications (motions) that concern the need to summon and question specific persons as specialists or witnesses (Part 5 of Article 99 of the Criminal Procedure Code). Such applications (motions) cannot be rejected.

Commentary of 2020 on 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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