On the application of the norms of criminal and criminal procedure legislation on the observance of personal freedom and inviolability of human dignity, countering torture, violence, and other cruel or degrading treatment or punishment

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 28, 2009 No. 7.

     The footnote. Throughout the text, the numbers "141-1" are replaced by the numbers "146" in accordance with the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

      In order to ensure the correct and uniform application in criminal proceedings of the norms of the Constitution and laws of the Republic of Kazakhstan ensuring personal freedom and inviolability of human dignity, as well as the proper fulfillment of obligations arising from the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted by UN General Assembly Resolution 39/46 of December 10, 1984, The Republic of Kazakhstan joined the Convention in accordance with the Law of the Republic of Kazakhstan dated June 29, 1998 No. 247-1) (hereinafter - Convention) and other international treaties ratified by the Republic of Kazakhstan, the plenary session of the Supreme Court of the Republic of Kazakhstan

     Decides:

     The footnote. The preamble as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated January 24, 2020 No. 2 (effective from the date of the first official publication).

To draw the attention of the courts to the fact that, in accordance with article 110 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the body conducting the criminal process, during the course of a procedural action (interrogation of a person, confrontation, examination, identification, etc.), is obliged not only to explain to the participant in the process his rights, but also to provide an opportunity their full implementation. At the same time, special attention should be paid to the observance of constitutional human and civil rights, including the inviolability of human dignity, which includes protection from torture and other cruel or degrading treatment. Failure to comply with these requirements of the law is the basis for recognizing the evidence obtained during the procedural action as inadmissible.

     The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

A person suspected of committing a criminal offense may be detained only if there are conditions, grounds and motives provided for in articles 128 and 131 of the CPC. When a person is detained on suspicion of committing a criminal offense, an official of the criminal prosecution authority verbally announces to the person on suspicion of which criminal offense he is detained, explains to him the right to invite a lawyer, the right to remain silent and that what he says can be used against him in court.

      Immediately, but no later than three hours after the actual detention, the person must be handed over to an official of the body of inquiry, an inquirer or an investigator in order to resolve the issue of his procedural detention and draw up a protocol of detention in accordance with the requirements of Article 131 of the CPC. The suspect must be examined by a doctor to establish his general state of health and the presence of bodily injuries. The medical examination report must be attached to the detention report.

     De facto detention should be understood as restriction of the freedom of a detained person, including freedom of movement, forced detention in a certain place, forced delivery to bodies of inquiry and investigation (seizure, closure in a room, coercion to go somewhere or stay in place, and so on), as well as any other actions that significantly restrict personal freedom. from the moment to the minute when these restrictions became real, regardless of whether the detainee was given any procedural status or other formal procedures were performed.

     The footnote. Paragraph 2 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 01/24/2020 No. 2 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication publications).

In all cases, the interrogation of a suspect is formalized by a protocol drawn up in accordance with the requirements of articles 210, 212 and 216 of the CPC. Making statements obtained during the interrogation of a person after his actual detention in connection with suspicion of committing a crime in the form of an "explanation", "confession", "interrogation as a witness" or other similar forms on this fact is unacceptable and such documents, in accordance with Article 112 of the CPC, are not subject to attachment to the materials of the criminal case. business.

     The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

Courts, in court proceedings and at the pre-trial stage of the criminal process, when verifying allegations of violations of the rights to personal freedom and inviolability of human dignity, when considering petitions for the authorization of a preventive measure in the form of detention, it is necessary to find out when a person was actually detained, for how long, where he was held, whether a protocol was drawn up and other related There are circumstances related to this.

     The beginning of the period of a person's detention is the time of his actual detention. This time, with the obligatory indication of hours and minutes, is reflected in the protocol of detention, which is drawn up by the investigator (inquirer) within three hours after the actual detention of the person.

      The investigating judge or court, having discovered the fact of forgery of the time of delivery of a person or the detention of a suspect, that is, signs of a crime provided for in Article 369 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), is obliged, in accordance with the requirements of part three of Article 185 of the CPC, in a private decision to bring this circumstance to the attention of the prosecutor for verification and making a procedural decision.

     The footnote. Paragraph 4, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 01/24/2020 No. 2 (effective from the date of the first official publication).

In accordance with article 135 of the CPC, the person conducting the pre-trial investigation is obliged to immediately notify one of the adult members of his family, and in their absence, other relatives or close persons, about the detention of the suspect and his location, or to ensure the possibility of such notification to the suspect himself, including by granting him the right on a phone call. In accordance with the requirements of part five of article 541 of the CPC, the minor's parents or other legal representatives, and in their absence, close relatives, are immediately notified of the detention of a minor suspect or accused.

     This procedural action is recorded in the protocol, which is signed by the investigator (inquirer) and the suspect.

     The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).      6. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).

If a suspect is detained, he must be interrogated in accordance with part three of Article 64 of the CPC no later than twenty-four hours after drawing up a protocol of detention or applying a preventive measure, while ensuring the right to a private and confidential meeting before the first interrogation with his chosen or appointed defense lawyer.

     The footnote. Paragraph 7, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 01/24/2020 No. 2 (effective from the date of the first official publication).

The detention of a person in the absence of the conditions, grounds and motives provided for in Articles 128 and 131 of the CPC, or for more than three hours without drawing up a protocol of detention, as well as the detention of a person without the sanction of an investigating judge for more than the time limits established by part four of Article 131 of the CPC, and for more than the period of detention authorized by the investigating judge, is illegal, and it is subject to immediate release. If the perpetrators have a direct intention to commit these illegal acts, they are held criminally liable under article 414 of the Criminal Code.

     The footnote. Paragraph 8, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 01/24/2020 No. 2 (effective from the date of the first official publication).

Upon establishing the fact of illegal detention of a person, the body conducting the criminal process takes measures to rehabilitate and compensate for the damage caused by illegal actions. The detainee is explained the right to demand compensation for property damage and elimination of the consequences of moral harm, including bringing him an official apology in writing according to the rules of Article 41 of the CPC.

   The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

Detainees on suspicion of committing a criminal offense are being held in temporary detention facilities. Military personnel detained on suspicion of committing a criminal offense and persons serving a custodial sentence may also be held in guardhouses and in institutions of the penal system executing custodial sentences, respectively. In the cases provided for in paragraph 9 of part two and part three of Article 61 of the CPC, detainees on suspicion of committing a criminal offense are held in specially adapted premises designated by the head of the body of inquiry. In the conditions of a state of emergency, detainees on suspicion of committing a criminal offense may be held in premises adapted for these purposes, determined by the commandant of the area.

     The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

The administration of places of detention is obliged, in accordance with article 101 of the CPC, to immediately transfer to the prosecutor complaints of torture received from detainees or detainees.

     The prosecutor verifies a complaint about the use of torture, violence, or other cruel or degrading treatment in accordance with the requirements and deadlines set out in article 105 of the CPC. Upon establishing sufficient data on the use of torture, violence, and other ill-treatment, the prosecutor registers the complaint in the Unified Register of Pre-Trial Investigations and transfers the criminal case under investigation for pre-trial investigation.

     The footnote. Paragraph 11, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 01/24/2020 No. 2 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).

In cases where the complaint of a person detained on suspicion of committing a crime or being held in custody about the use of torture is addressed to the court, the administration of the places of detention immediately sends it to the investigating judge at the location of the institution for consideration in accordance with article 106 of the CPC.

     The footnote. Paragraph 12, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 01/24/2020 No. 2 (effective from the date of the first official publication).

In cases where a complaint about the use of torture, violence, or other cruel or degrading treatment is filed at a court hearing, the court is obliged to take the measures provided for by law for its immediate consideration. If, in order to verify a complaint, it is necessary to take measures outside the jurisdiction of the court, or to conduct investigative and other procedural actions within the framework of pre-trial proceedings, the court issues a resolution by which it assigns the prosecutor to conduct an appropriate audit, indicating the deadline for submitting the audit materials to the court.

     Carrying out an inspection and bringing to justice persons who have committed illegal acts does not entail the suspension of proceedings.

     The court is obliged to examine the materials of the examination of complaints and the procedural decisions taken by the prosecutor on them at the court session and, if there are grounds, decide whether to recognize the evidence as inadmissible. The materials of the review of complaints and the procedural decisions taken on them are attached to the case.

     The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated January 24, 2020 No. 2 (effective from the date of the first official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 11, 2020 No. 6 (effective from the date of the first official publication).

      13-1. It is necessary to distinguish between the actions of a person who applied to him in order to exercise his procedural rights provided for in articles 64 and 65 of the CPC, with a statement about the use of torture against him from a false denunciation of the use of torture.

      It is unacceptable to bring to criminal responsibility under Article 419 of the Criminal Code for knowingly false denunciation of a suspect who complained of torture or other ill-treatment to the competent authorities, only on the basis that the facts stated in his complaint were not confirmed and the criminal case on this appeal was terminated.

      Bringing a person to criminal responsibility under Article 419 of the Criminal Code for knowingly false denunciation can take place only if there is evidence of a deliberate reservation on his part about the use of torture against him in order to evade criminal responsibility or for other reasons.

     The footnote. The regulatory resolution was supplemented by paragraph 13-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated January 24, 2020 No. 2 (effective from the date of the first official publication).

When considering petitions from the parties to exclude evidence from the list of admissible evidence on the grounds of obtaining it using torture or other illegal acts, the courts should proceed from the fact that the prosecutor is responsible for confirming the legality of the case materials received.

     If the defendant claims at a court hearing that the testimony was given by him during physical or mental abuse by the criminal prosecution authorities, while he was not familiar with the right to invite a defense lawyer and not to testify against himself, his interrogation was conducted without the participation of a defense lawyer, then the disputed testimony must be declared inadmissible as evidence.

     If a lawyer participated in the procedural action, then he is obliged to declare violations of the law in the protocol when signing it.

Torture must be distinguished from other acts involving abuse of power or official authority, for which responsibility is provided for in article 362 of the Criminal Code. In accordance with the regulation on competition of general and special norms established by part three of Article 13 of the Criminal Code, acts involving physical and (or) mental suffering to the victim are qualified under a special rule - Article 146 of the Criminal Code, if they were committed by an official to achieve the goals specified in this article. At the same time, additional qualification of the act under Article 308 of the Criminal Code is not required.

      Other officials specified in article 146 of the Criminal Code should include not only officials of the criminal prosecution authorities, but also officials of other bodies and organizations listed in paragraph 26 of Article 3 of the Criminal Code. Another person referred to in Article 146 of the Criminal Code is any sane individual who has reached the age of sixteen if he commits intentional acts aimed at achieving the goals provided for in the disposition of the first part of Article 146 of the Criminal Code.

     The footnote. Paragraph 15, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication).

      15-1. The tacit consent of the subject specified in the first part of Article 146 of the Criminal Code should be understood as the action (inaction) of the person conducting the inquiry, investigator or other official, or another person, expressed in consent (approval) for the use of torture by other persons to achieve the goals specified in the disposition of the first part of Article 146 of the Criminal Code, including including by tacit approval (nod, gesture, etc.), as well as inaction when aware of the illegal actions of others, or in illegally admitting these persons to those who were then tortured, etc.

     The footnote. The regulatory resolution was supplemented by paragraph 15-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated January 24, 2020 No. 2 (effective from the date of the first official publication).

      15-2. In order to implement the provisions of article 16 of the Convention, every fact of cruel or degrading treatment or punishment must be given a legal assessment. In cases where such acts were committed not to achieve the goals specified in article 146 of the Criminal Code, but for other reasons and do not fall under the definition of torture, the perpetrator, if there are grounds, is liable under the relevant articles of the Special Part of the Criminal Code.

     The footnote. The regulatory resolution was supplemented by paragraph 15-2 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 08.12.2021 No. 3 (effective from the date of the first official publication).

     15-3. When it is established in a criminal case that the criminal prosecution body has committed illegal acts that degrade the human dignity of a person involved in the criminal process and do not constitute a criminal offense, the court is obliged to issue a private resolution on the prosecutor's taking appropriate measures.

     The footnote. The regulatory resolution was supplemented by paragraph 15-3 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 08.12.2021 No. 3 (effective from the date of the first official publication).

When distinguishing torture from intentional harm to health (Articles 106, 107 of the Criminal Code), it should be borne in mind that the infliction of physical and mental suffering by these acts cannot be qualified as torture unless it is established that they were committed by an investigator, inquirer, other official or another person to achieve the goals specified in the first part of Article 146. UK.

      If, as a result of torture, moderate or serious harm or death due to negligence is intentionally caused to the victim's health, then such actions are fully covered by the relevant part of Article 146 of the Criminal Code and are not subject to additional qualification under articles 104, 106, 107 of the Criminal Code.

Driving to suicide as a result of committing torture should be qualified according to the totality of the relevant parts of article 146 and article 102 of the Criminal Code.

      Causing serious harm to health by exceeding the measures necessary to detain a person who has committed a crime is not considered torture and is qualified under article 113 of the Criminal Code.

     The footnote. Paragraph 16, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/08/2021 No. 3 (effective from the date of the first official publication).

      16-1. It is necessary to distinguish between the acts provided for in article 146 and paragraph 4) the second part of Article 110 of the Criminal Code.

      The norm provided for in Article 146 of the Criminal Code, in relation to the norm provided for in paragraph 4) The second part of Article 110 of the Criminal Code is a special norm. In this regard, when all the signs provided for by the disposition of the first part of Article 146 of the Criminal Code are established: the presence of a special subject of torture; if the purpose of torture is to obtain information or confessions from the tortured person or another person, or to punish him for an act that he or another person has committed or is suspected of committing, as well as to intimidate or coerce him or a third person, or for any reason based on discrimination of any kind, then the act is fully covered by the disposition of Article 146 of the Criminal Code and additional qualifications under paragraph 4) of the second part of Article 110 of the Criminal Code are not required.

      Infliction of physical or mental suffering committed with the use of torture, if it contains all the signs provided for in the disposition of the first part of Article 146 of the Criminal Code, is subject to qualification under the relevant part of Article 146 of the Criminal Code and cannot be qualified as torture under paragraph 4) of the second part of Article 110 of the Criminal Code.

     The footnote. The regulatory resolution was supplemented by paragraph 16-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated January 24, 2020 No. 2 (effective from the date of the first official publication).

Lawful actions of officials to apply the prescribed measures of procedural coercion are not recognized as torture: suppression of unlawful actions of a suspect (accused, defendant, convicted); lawful use of weapons and special means (handcuffs, batons, etc.); detention; detention; imprisonment by court verdict and other actions of the criminal prosecution body aimed at fulfilling the tasks of the criminal process.

      The use of physical and mental violence to achieve the goals specified in the first part of Article 146 of the Criminal Code, under the pretext of implementing measures of procedural coercion, entails liability under this provision of the criminal law.

     The footnote. Paragraph 17, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 03/31/2017 No. 3 (effective from the date of the first official publication).      18. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).

In accordance with article 8 of the Convention, the requirement to extradite a person who is a citizen of a foreign State in connection with an accusation of torture on the territory of a foreign State must be satisfied not only in cases where there is a relevant agreement between Kazakhstan and the foreign State that sent the request, but also on the basis of the Convention, which serves as the legal basis for the extradition of a person to a State party to the Convention.

     The footnote. Paragraph 19 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

When considering a request for the extradition of a citizen of a foreign State accused of committing a crime, circumstances indicating the presence or absence of a consistent pattern of gross, flagrant or mass violations of human rights in the foreign State that sent the request are clarified in accordance with the requirements of article 3 of the Convention. In accordance with the said norm of the Convention and paragraph 7 of the first part of Article 590 of the CPC, it is not allowed to extradite a person (extradition) if there are grounds to believe that the person against whom an extradition request has been received may be subjected to the threat of torture in the requesting party or his health, life or freedom is in danger due to race, religion, nationality, citizenship (citizenship), belonging to a certain social group or political beliefs, except in cases stipulated by an international treaty of the Republic of Kazakhstan.

     The footnote. Paragraph 20 as amended by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).

      20-1. When sentencing persons found guilty of torture, courts should follow the requirements of article 52 of the Criminal Code and take into account the provisions of article 4, paragraph 2, of the Convention, which states that each State Party establishes appropriate penalties for such crimes, taking into account their grave nature. At the same time, the courts should discuss the issue of recognizing the circumstances as aggravating criminal liability and punishment, along with others, also specified in paragraphs 7), 9) and 13) of the first part of Article 54 of the Criminal Code of the following circumstances: committing a criminal offense against a defenseless or helpless person or a person who is dependent on the perpetrator; committing a criminal offense with special cruelty, sadism, bullying, as well as torment for the victim; the commission of a criminal offense by a person who has thereby violated his oath or professional oath.

     The footnote. The regulatory resolution was supplemented by paragraph 20-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated January 24, 2020 No. 2 (effective from the date of the first official publication).

The body conducting the criminal proceedings is obliged to explain to the victim of torture his right to file a claim for compensation for property and moral damage and the procedure for filing such a claim.

     Harm caused to a citizen as a result of torture, cruel or degrading treatment or punishment is subject to compensation in accordance with the procedure provided for by the CPC and the normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999 No. 7 "On the practice of applying legislation to compensate for harm caused by illegal actions of bodies conducting criminal proceedings."

      The body conducting the criminal proceedings is obliged to explain to the victim of crimes related to torture his right to receive compensation in accordance with paragraph 23) of the sixth part of Article 71 of the CPC and subparagraph 1) paragraph 1 of Article 6 of the Law of the Republic of Kazakhstan dated January 10, 2018 No. 131-VI "On the Victims Compensation Fund" (hereinafter referred to as the Law on the Fund).

      In accordance with paragraph 1 of article 11 of the Law on the Fund, the Prosecutor's office submits recourse claims from the perpetrators to reimburse the money paid to the victims as compensation.

     The footnote. Paragraph 21, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 01/24/2020 No. 2 (effective from the date of the first official publication); dated 12/08/2021 No. 3 (effective from the date of the first official publication).

In order to prevent torture, cruel or degrading treatment or punishment, courts should identify the causes and conditions conducive to the use of torture and issue private orders to eliminate them.

     When passing an acquittal or a decision to terminate a criminal case on rehabilitative grounds, the courts should in all cases issue private decisions on bringing to justice officials (investigator, inquirer, prosecutor, etc.) responsible for the illegal detention or criminal prosecution of an innocent person.

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.

Chairman

The Supreme Court

Republic of Kazakhstan

M. ALIMBEKOV

Judge

The Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

J. BAISHEV

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