On the review of compliance with the Constitution of the Republic of Kazakhstan of certain provisions of the second part of Article 146 of the Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014

Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated April 11, 2023 No. 9

     The Constitutional Court of the Republic of Kazakhstan, composed of Chairman Azimova E.A., judges Eskendirov A.K., Zhakipbaev K.T., Zhatkanbayeva A.E., Kydyrbaeva A.K., Musin K.S., Nurmukhanov B.M., Ongarbaev E.A., Sarsembaev E.J. and Udartseva S.F. with the participation of representatives:

    The subject of the appeal is lawyers D.N. Utebekov and A.A. Atesin.,

     Senate of the Parliament of the Republic of Kazakhstan – Deputy Tastekeev K.K.,

    Supreme Court of the Republic of Kazakhstan – Deputy Head of the Judicial Administration Musralinov A.S.,

     The Prosecutor General's Office of the Republic of Kazakhstan – Advisor to the Prosecutor General Adamova T.B.,

    Ministry of Justice of the Republic of Kazakhstan – Vice Minister Zhakselekova B.Sh.,

    expert – Doctor of Law, Professor of the L.N. Gumilyov Eurasian National University A.N. Akhpanov

     In an open meeting, he reviewed the compliance with the Constitution of the Republic of Kazakhstan with certain provisions of the second part of Article 146 of the Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014 (hereinafter referred to as the CPC) at the request of citizen Moldagaliev K.D.

    Having listened to the speakers – judges of the Constitutional Court of the Republic of Kazakhstan Sarsembaev E.Zh. and Zhakipbaev K.T., having studied the materials of the constitutional proceedings, having analyzed the legislation of the Republic of Kazakhstan and international experience, the Constitutional Court of the Republic of Kazakhstan

     installed:

     The Constitutional Court of the Republic of Kazakhstan received an appeal from K.D. Moldagaliev, a citizen, with a request to declare articles 13, 14, paragraph 1 of Article 15, paragraphs 1 and 3 of Article 16, article 17, paragraph 1 of Article 24, paragraphs 1, 2 and 4 of Article 26, paragraphs 1 and 2 of Article 27, as well as paragraph 1 of Article 29 of the Constitution of the Republic of Kazakhstan, the provisions of the second part of Article 146 of the CPC regarding the complete prohibition of a suspect under house arrest from leaving his home, hosting anyone, conducting telephone conversations, receiving correspondence and using communication tools.

    The restrictions, according to the author of the appeal, do not allow him to file complaints against the investigator's actions with the prosecutor's office and the investigative court, participate in investigative court sessions, in civil proceedings and defend his other rights, receive a lawyer for legal assistance, as well as parents and close relatives, contact emergency services and evacuate from his home. in case of a threat to his life, call doctors or visit them, go to the pharmacy or order the delivery of medicines, go for walks in the fresh air alone or with his daught     The restrictions, according to the author of the appeal, do not allow him to file complaints against the investigator's actions with the prosecutor's office and the investigative court, participate in investigative court sessions, in civil proceedings and defend his other rights, receive a lawyer for legal assistance, as well as parents and close relatives, contact emergency services and evacuate from his home. in case of a threat to his life, call doctors or visit them, go to the pharmacy or order the delivery of medicines, go for walks in the fresh air alone or with his daughter., engage in entrepreneurial activity.

     When considering the provisions of paragraphs 1), 2) and 3) of the second part of Article 146 of the CPC in relation to the subject of the appeal, the Constitutional Court proceeds from the following.

The Republic of Kazakhstan claims to be a democratic, secular, legal and social state, the highest values of which are man, his life, rights and freedoms (paragraph 1 of Article 1 of the ConstitutThe Republic of Kazakhstan claims to be a democratic, secular, legal and social state, the highest values of which are man, his life, rights and freedoms (paragraph 1 of Article 1 of the Constitution), which indicates the priority of universal human values for the state. The recognition of a person, his rights and freedoms as the highest values is a fundamental principle of the constitutional system, forming the basis of the rule of law. Their exercise should not violate the rights and freedoms of others, infringe on the constitutional order and public morality, and they may be restricted in cases provided for by the Constitution (articles 12, 39).

    By guaranteeing everyone's right to be recognized as a legal personality, the Constitution gives them the opportunity to defend their rights and freedoms in all ways that do not contradict the law, including the right to judicial protection and qualified legal assistance (article 13). It establishes equality of all before the law and the court (article 14), establishes the rights of everyone to life (paragraph 1 of arti     By guaranteeing everyone's right to be recognized as a legal personality, the Constitution gives them the opportunity to defend their rights and freedoms in all ways that do not contradict the law, including the right to judicial protection and qualified legal assistance (article 13). It establishes equality of all before the law and the court (article 14), establishes the rights of everyone to life (paragraph 1 of article 15), personal freedom, the restriction of which in the form of arrest and detention is allowed only in cases provided for by law and only with the approval of the court, granting the arrested the right to appeal. Every detainee, arrested, accused of committing a crime is granted the right to use the assistance of a lawyer (defender) from the moment, respectively, of detention, arrest or arraignment (article 16). Citizens of the Republic of Kazakhstan have the right to health protection (paragraph 1 of Article 29).

    The State is obliged to guarantee the natural human right to personal freedom, defined by the Basic Law, through the implementation of the principle of personal inviolability. Every person to whom one or another measure of restraint has been applied is a person with dignity, inalienable and birthright rights.

    The Republic of Kazakhstan respects the principles and norms    The Republic of Kazakhstan respects the principles and norms of international law (article 8 of the Constitution). The Universal Declaration of Human Rights of December 10, 1948 proclaims that "no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment" (article 5), "no one may be subjected to arbitrary arrest, detention or exile" (article 9). It sets out the limits of restrictions on human rights ans out the limits of restrictions on human rights and freedoms by law, stating that "in exercising their rights and freedoms, everyone should be subject only to such restrictions as are established by law solely for the purpose of ensuring due recognition and respect for the rights and freedoms of others and meeting the just requirements of morality, public order and general welfare in a democratic society" (paragraph 2 article 29).

     In its General Comment No. 35, Article 9 (Freedom and personal in  In its General Comment No. 35, Article 9 (Freedom and personal integrity) dated December 16, 2014, CCPR/C/GC/35, to the International Covenant on Civil and Political Rights (ratified by the Law of the Republic of Kazakhstan dated November 28, 2005), the UN Human Rights Committee stated that "everyone has the right to the right to freedom and personal inviolability", while "personal freedom is understood as a person's freedom from being subjected to physical isolation, and not general freedom of action."

The grounds and procedure for the application of preventive measures are regulated by Chapter 18 of the CPC. Thus, in the first part of Article 136 of the CPC, it is established that "if there are sufficient grounds to believe that the suspect or the accused will hide from the criminal prosecution authorities or the court, or obstruct the objective investigation of the case or its trial in court, or will continue to engage in criminal activities, as well as to ensure the execution of the sentence, the body conducting the criminal process, within the limits of his powers, he has he first part of Article 136 of the CPC, it is established that "if there are sufficient grounds to believe that the suspect or the accused will hide from the criminal prosecution authorities or the court, or obstruct the objective investigation of the case or its trial in court, or will continue to engage in criminal activities, as well as to ensure the execution of the sentence, the body conducting the criminal process, within the limits of his powers, he has the right to apply to these persons one of the preventive measures provided for in Article 137 of this Code."

     The types of preventive measures are set out in the first part of Article 137 of the CPC, depending on the degree of their severity. The location of house arrest immediately before the most severe measure of restraint – the detention of a person - determines the possibility of applying a wider range of restrictions in comparison with less strict preventive measures.

    The degree of isolation and restrictions applied to an arrested person is determined depending on the severity of the crime committed, his personality, reputation, permanent place of work, permanent place of residence and other circumstances (Article 138 of the CPC).

     The legislator, in part two of Article 146 of the CPC, determined that during house arrest, one or more restrictions may be applied by the court to a suspect, accused, or defendant, ensuring their proper behavior and isolation from society. Such measures are      The legislator, in part two of Article 146 of the CPC, determined that during house arrest, one or more restrictions may be applied by the court to a suspect, accused, or defendant, ensuring their proper behavior and isolation from society. Such measures are contained in the norms disputed by the subject of the appeal, which allow prohibitions on: leaving the home completely; conducting telephone conversations, sending correspondence and using means of communication, with the exception of the cases provided for in paragraph 5); accepting someone (paragraphs 1), 2) and 3) of the second part of Article 146 of the CPC).

     The regulatory Resolution of the Supreme Court dated January 24, 2020 No. 1 "On certain issues of authorizing preventive measures", which is part of the current law in the Republic of Kazakhstan, clarifies: "When authorizing house arrest, courts should take into account that restrictions on the freedom of movement of the suspect, the accused and prohibitions provided f      The regulatory Resolution of the Supreme Court dated January 24, 2020 No. 1 "On certain issues of authorizing preventive measures", which is part of the current law in the Republic of Kazakhstan, clarifies: "When authorizing house arrest, courts should take into account that restrictions on the freedom of movement of the suspect, the accused and prohibitions provided for in the second part of Article 146 of the CPC should be applied in within reasonable limits. Restrictions should not prevent a person from contacting family members, communicating with their lawyer, or performing vital actions, such as receiving medical care, etc."

The rules for the execution of a preventive measure in the form of house arrest, defined in accordance with part five of Article 146 of the CPC and approved by a joint order of the heads of state bodies conducting a pre-trial investigation (registered with the Ministry of Justice of the Republic of Kazakhstan on September 22, 2014, No. 9741), specify that an employee of the body overseeing compliance with the established restrictions "warns the suspect in writing, the accused, the defendant about the need to inform the duty station ... about the intentions to leave the house at the forbidden time, in particular, upon receiving a summons from an investigator, inquirer, prosecutor, judicial summons; excommunication with the permission of the investigator, inquirer, prosecutor or court; illness, occurrence of natural disasters" (subparagraph 2) of paragraph 18). Thus, the arrested person is given the opportunity to leave his home at a prohibited time to participate in investigative actions and court sessions, as well as in emergency cases.

When considering the issue of compliance with the Basic Law of the individual provisions of the second part of Article 146 of the CPC indicated by the subject of the appeal, the Constitutional Court proceeds from the fact that house arrest is one of the strict preventive measures and "consists in isolating the suspect or accused from society without detaining them, but with the application of restrictions" (part one of Article 146 of the CPC).

     Taking into account restrictive measures ensuring isolation from society, the legislator, in part four of Article 62 of the Criminal Code of the Republic of Kazakhstan dated July 3, 2014, stipulated that the time spent under house arrest before the sentence enters into force is counted towards the term of imprisonment, restriction of liberty, arrest at the rate of two days per day.

    In the case of house arrest, restrictive measures are designed to ensure the necessary degree of isolation of the suspect or accused from society. These measures may be a priori more stringent than with the use of milder preventive measures – subscription not to leave and proper behavior, personal surety, transfer of a serviceman under the supervision of the command of a military unit and others.

     Chapter 2 of the CPC reveals the tasks and principles of the criminal procedure, noting the need for proper application of the criminal law, protection of individuals, society and the state from criminal offenses (Article 8), the duty of the court, prosecutor, investigator, body of inquiry and inquirer in criminal proceedings to strictly comply with the requirements of the Constitution of the Republic of Kazakhstan, CPC and other regulatory legal acts (Article 10).

    The same chapter of the CPC contains provisions on the need to comply with constitutionally recognized norms on judicial protection of human and civil rights and freedoms (Article 12), respect for the honor and dignity of the individual (Article 13), inviolability of the individual (Article 14) and others.

     In conditions of house arrest, the right enshrined in paragraph 3 of article 13 of the Constitution presupposes the possibility of the person concerned to use the professional assistance of qualified lawyers. This is closely related to the realization of the right to judicial protection and the principles of justice enshrined in the Basic Law.

     The Constitution imposes a special duty on lawyers to provide qualified legal assistance to both individuals and legal entities, and on the state to ensure everyone's constitutional right to such assistance (normative resolutions of the Constitutional Council of the Republic of Kazakhstan dated July 2, 1999 No. 12/2, August 20, 2009 No. 5 and June 4, 2021 No. 1).

The Constitutional Court considers that criminal proceedings should maintain a reasonable balance between achieving the goals of house arrest – the public interests of criminal justice and the protection of constitutional rights, as well as the legitimate interests of persons subjected to this measure of restraint, aimed at ensuring the inalienable, primary needs of the individual for his normal life.

    The use of any preventive measure should not create conditions for violating the rights of the suspect (accused, defendant) and defense counsel set out in the CPC (articles 64, 65, 70).

    The provisions of the CPC disputed by the subject of the appeal should not, in law enforcement practice, in combination with each other or with other restrictions applied to persons under house arrest, lead to the deprivation of their constitutional rights. Such restrictions, while ensuring the isolation of a person from society, should exclude the risks of endangering his life and health.

     The regulation of these issues in other normative legal acts, except for the CPC, generally ensures respect for the constitutional rights of persons subject to house arrest. However, this measure of restraint affects the essence of a number of constitutional human rights and freedoms, and therefore such provisions need to be consolidated at the legislative level.

    When adopting laws, the legislator is obliged to proceed from the constitutional limits of permissible restrictions on human and civil rights and freedoms, without distorting their essence and without imposing restrictions that are inconsistent with constitutionally defined norms.

     In this regard, the restrictions provided for in the second part of Article 146 of the CPC should be considered in a systematic unity with the specified norms of the Constitution, the principles of criminal procedure and other provisions of the CPC regulating the rights of participants in criminal proceedings.

    The Constitutional Court considers that with such an interpretation of the contested provisions of the CPC, they do not allow for the complete restriction or deprivation of constitutional human rights, including the right to judicial protection of rights and freedoms, unrelated to the goals and objectives of the pre-trial investigation.

     Thus, the provisions of paragraphs 1), 2) and 3) of the second part of Article 146 of the CPC comply with the Constitution of the Republic of Kazakhstan.

     Based on the results of consideration of an appeal to verify the constitutionality of laws and other legal acts, the Constitutional Court has the right to recognize a law or other legal act or their individual provisions as consistent with the Constitution of the Republic of Kazakhstan as interpreted by the Constitutional Court (subparagraph 2) of paragraph 2 of Article 57 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Constitutional Court of the Republic of Kazakhstan" (hereinafter – Constitutional Law).

    If the decision of the Constitutional Court requires the adoption of legislative and other measures to eliminate gaps and contradictions in legal regulation, the authorized state bodies, no later than six months after the publication of the decision of the Constitutional Court, unless another deadline is established by the Constitutional Court, ensure that the draft of the relevant law and the adoption of other legal acts are submitted to the Mazhilis of the Parliament of the Republic of Kazakhstan. (paragraph 4 of Article 64 of the Constitutional Law).

    The Constitutional Court notes that the norms of the CPC regarding the detention of persons under house arrest should be formulated with a sufficient degree of clarity and based on understandable and reasonable criteria that exclude the possibility of arbitrary interpretation of the provisions of the law.

     Based on the above, guided by paragraph 3 of Article 72, paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, subparagraph 3) paragraph 4 of Article 23, articles 55-58, 62-65 of the Constitutional Law, as applied to the subject of the appeal, the Constitutional Court of the Republic of Kazakhstan

     Decides:

To recognize the provisions of paragraphs 1), 2) and 3) of the second part of Article 146 of the Criminal Procedure Code of the Republic of Kazakhstan in accordance with the Constitution of the Republic of Kazakhstan in the interpretation given by the Constitutional Court of the Republic of Kazakhstan:

     the restrictions provided for in house arrest, which are applied by the courts individually or in combination, must ensure respect for the rights of the arrested person and his defender, guaranteed by the Constitution of the Republic of Kazakhstan, including the rights to life and health, recognition of legal personality, protection of their rights and freedoms in all ways that do not contradict the law, judicial protection and qualified legal assistance, as well as the resulting procedural rights enshrined in the Criminal Procedure Code of the Republic of Kazakhstan.

No later than six months after the publication of this regulatory resolution, the Government of the Republic of Kazakhstan should submit to the Mazhilis of the Parliament of the Republic of Kazakhstan a draft law aimed at bringing the Criminal Procedure Code of the Republic of Kazakhstan into line with the legal positions of the Constitutional Court of the Republic of Kazakhstan set out in this regulatory resolution.

    To inform the Constitutional Court of the Republic of Kazakhstan about the measures taken within the specified period.

This regulatory resolution comes into force from the date of its adoption, is generally binding throughout the territory of the Republic of Kazakhstan, final and not subject to appeal.

To publish this regulatory resolution in Kazakh and Russian in periodicals that have received the right to officially publish legislative acts, the unified legal information system and on the Internet resource of the Constitutional Court of the Republic of Kazakhstan.  

    The Constitutional Court

Republic of Kazakhstan  

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

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