Difference between revisions of "Kazakhstan"

From Criminal Defense Wiki
Jump to navigationJump to search
Line 44: Line 44:
 
national laws. Also see the treaties signed and ratified by KZ on the United Nations' website <ref>[https://www.cia.gov/the-world-factbook/countries/kazakhstan/].</ref>.
 
national laws. Also see the treaties signed and ratified by KZ on the United Nations' website <ref>[https://www.cia.gov/the-world-factbook/countries/kazakhstan/].</ref>.
  
 +
== Rights of the Accused ==
  
 +
''' Right Against Unlawful Arrests, Searches and Seizures '''
 +
 +
The Constitution, article 16:
 +
1. Everyone shall have the right to personal freedom.
 +
2. Arrest and detention shall be allowed only in cases stipulated by law and only with the
 +
authorization of the with the right of appeal.
 +
See chapter 31 of CPCKZ (Criminal Procedure Code of the Republic of Kazakhstan) for more
 +
detailed information about searches and seizures, which must be authorised following existence of
 +
a sufficient evidence.
 +
Right Against Unlawful Detention
 +
The Constitution, article 16 in paragraph 2 continues that without the authorization of the court, a
 +
person shall be detained for a period of not more than seventy-two hours.
 +
Right Not to be Tortured or Ill-Treated
 +
1. Human dignity shall be inviolable.
 +
2. No one should be subjected to torture, violence, abusive or other treatment and punishment
 +
degrading human dignity.
 +
Right to Medical Care
 +
The Constitution, article 29 guarantees the right to medical care.
 +
Right to be Informed of Charges
 +
The Constitution, article 16:
 +
3. Every person detained, arrested and accused of committing a crime shall have the right to the
 +
assistance of a lawyer (defender) from the moment of detention, arrest or accusation.
 +
CPCKZ, article 14:
 +
3. Any person detained shall be immediately notified of the reason of detention, as well as in the
 +
commission of what offence under the criminal law, he (she) is suspected.
 +
CPCKZ, article 26:
 +
2. The body, conducting the criminal proceedings shall explain to the suspected, accused their
 +
rights and provide them the opportunity to defense themselves from suspicion, accusations by all
 +
means not prohibited by law, as well as take measures to protect their personal and property
 +
rights.
 +
Kazakhstan
 +
Right to Presumption of Innocence
 +
The Constitution, article 77 (3):
 +
1) a person is considered to be innocent of committing a crime until his guilt is recognized by the
 +
court judgment that has entered into legal force;
 +
Right Against Self-Incrimination
 +
The Constitution, article 77 (3):
 +
6) the accused is not obliged to prove his innocence;
 +
7) no one is obliged to testify against himself, or his spouse (-s) and close relatives, whose circle is
 +
determined by law. Priests are not obliged to testify against those who confided in them at
 +
confession;
 +
Right to Counsel and Effective Assistance
 +
Constitution, article 13: see a chapter above, 'The legal aid situation in the country'.
 +
Right to a Present a Defense
 +
CPCKZ, article 26:
 +
1. The suspect, the accused have the right to defence. They can exercise this right both personally
 +
and with the help of a defence lawyer in the manner prescribed by this Code.
 +
Right to Due Process
 +
CPCKZ, article 8 declares as objectives of criminal procedure to ensure that suspects and accused
 +
of a crime/s shall have fair trial, correct application of criminal law, and be protected from unlawful
 +
restriction of their rights and freedoms.
 +
CPCKZ, article 192:
 +
8. The suspected, the victim shall have the right to appeal against the unjustified delay in the
 +
investigation and to file a petition to the procurator for establishment of a certain period, during
 +
which the person conducting the criminal prosecution shall complete the investigation of the case
 +
in full or to appeal to the court in the manner prescribed by this Code.
 +
Right to Equal Protection of the Laws
 +
Constitution, article 14:
 +
1. Everyone shall be equal before the law and court.
 +
Kazakhstan
 +
Right to Bail
 +
CPCKZ, article 145 explains terms of bail and notes that 'the pledge shall not be applied in cases
 +
stipulated by part nine of article 148 of this Code' (e.g. incases of grave crimes).
 +
Right Against Ex Post Facto Prosecution
 +
Constitution, article 77, 3:
 +
5) laws that establish or strengthen liability, impose new duties on citizens or worsen their situation,
 +
do not have retroactive effect. If, after committing the offense, the responsibility for it is cancelled
 +
or mitigated by law, the new law shall be applied.
 +
Right Against Double Jeopardy
 +
Constitution, article 77, 3:
 +
2) no one may be subjected to repeated criminal or administrative liability for the same offense.
 +
Right to a Fair Trial
 +
Also see above right to Due Process.
 +
i. General
 +
CPCKZ, article 11:
 +
1. Criminal justice in the Republic of Kazakhstan shall be exercised only by the court.
 +
Assignment of powers of the court whosoever entails the criminal liability under the law.
 +
2. No one shall be found guilty of a criminal offence, as well as subjected to criminal
 +
punishment except by a court decision and in accordance with the law.
 +
Article 51:
 +
2. Any criminal case can only be considered by legitimate, independent, competent and
 +
impartial composition of court that ensured by compliance with the rules of this Code:
 +
ii. Right to a Trial by Jury
 +
CPCKZ, 52. The consideration of criminal cases in the courts of first instance shall be carried
 +
out by a single judge, and for especially grave crimes, upon the request of the accused, by a
 +
court with the participation of a jury consisting of one judge and ten jurors, with the exception
 +
of cases about
 +
iii. Right to a Speedy Trial
 +
CPCKZ, 322:
 +
4. The main trial shall commence no earlier than three days from the date of notification of the
 +
parties of the place and time of the court hearing and no later than ten days at a reduced order
 +
of consideration, and fifteen days under the general order of consideration from the issuance
 +
of the decision on its appointment. In exceptional cases, this period may be extended by the
 +
decision of the judge, but not more than thirty days.
 +
5. The main trial must be completed within a reasonable time.
 +
Kazakhstan
 +
iv. Right to an Impartial Judge
 +
Constitution, article 72:
 +
1. The courts consist of permanent judges whose independence is protected by the
 +
Constitution and the law.
 +
CPCKZ, article 22:
 +
1. A judge in the administration of justice shall be independent and subject only to the
 +
Constitution of the Republic of Kazakhstan and the law.
 +
2. Any interference in the activities of the court in the administration of justice is prohibited and
 +
shall be punishable by law.
 +
Right to Language Interpretation
 +
CPCKZ, article 30:
 +
3. Ensures use of the services of an interpreter and free of charge.
 +
Right to Habeas Corpus
 +
CPCKZ, article 14:
 +
2. Detention and house arrest shall be allowed only in the cases provided by the present Code and
 +
only with the authorization of the court, with the right of the detainee to appeal to the court or
 +
house arrest.
 +
Capital Punishment
 +
Article 15
 +
1. Everyone shall have the right to life.
 +
2. No one shall have the right to deprive life of a person arbitrarily. The death penalty is
 +
established by law as an exceptional punishment for terrorist offenses involving the death of
 +
people, as well as for particularly serious crimes committed in wartime, with giving the sentenced
 +
person the right to seek pardon.
 +
Right to Appeal
 +
CPCKZ, article 107:
 +
1. In the course of the pre-trial investigation, the suspect, his/her defense lawyer, legal
 +
representative, victim, his/her legal representative, representative, a person whose rights and
 +
freedoms are directly affected by the act of the investigating judge, shall have the right to appeal.
 +
Also refer above to CPCKZ, article 192 (8) in the chapter, Right to Due Process.
 +
Also, see below the subchapter: iv Interrogation.
 +
Kazakhstan
 +
3. Rights of Counsel
 +
Right to Provide Representation
 +
CPCKZ, article 70 lists the rights of the defense counsel.
 +
Right of Access to the Client
 +
CPCKZ, article 70:
 +
2. The defense counsel shall have the right to:
 +
1) have with the suspected, accused a private and confidential meeting, without limitation of their
 +
number and duration.
 +
Right to Information
 +
CPCKZ, article 70:
 +
2.The defense counsel shall have the right to access the relevant information and be involved in
 +
relevant procedures as described in the following subparagraphs 1) to 13).
 +
Right to Confidential Communication with the Client
 +
See CPCKZ article 70, 2. 1) provided above in the chapter: Right to Access to the Client.
 +
4. Means of Protecting or Enforcing Rights
 +
Exclusionary Rule and Nullity of Procedure
 +
Constitution, article 77, 3:
 +
9) evidence obtained in an unlawful manner is not legally binding. No one can be convicted solely
 +
on the basis of his own confession.
 +
CPCKZ article 10:
 +
3. Violation of the law by the court, the bodies of criminal proceedings in the criminal proceedings
 +
is inadmissible and entails liability under the law, annulment of illegal acts and their abolition.
 +
See also article 112 of this Code for more details.
  
  

Revision as of 14:36, 17 August 2022

Introduction

Quick Summary of the country's context

Kazakhstan (KZ) declared its independence in 1991 following the collapse of the Soviet Union. It has the largest economy in Central Asia and borders: China, Russia, Kyrgyzstan, Turkmenistan and Uzbekistan [1].

Type of Legal System

Kazakhstan practices the civil law system. It means that the main source of the legal system is the constitution, written statutes and other legal codes, which sanction and regulate, among other things, the jurisdiction of the courts, legal procedures and sentencing. In contrast, the common law system is mainly based on precedents, in other words, judicial decisions [2].

The judicial system in KZ is ruled by the highest courts: constitutional council and supreme court, and their subordinates: regional and local courts (see the constitution for general information on judge selection of the highest courts and their functionality).


The legal aid situation in the country

The constitution, article 13: 2. Everyone shall have the right to legal defense of his rights and freedoms. 3. Everyone shall have the right to take qualified legal assistance. In cases stipulated by law, legal assistance shall be provided free of charge.

For more details and contact links, about free legal aid, including of bar association, visit the following sites: 1) http://www.egov.kz (note, click on cached version if website fails to load); 2) http://www.redcrescent.kz (Kazakh Red Crescent); 3) http://www.bureau.kz (Kazakhstan International Bureau for Human Rights and the Rule of Law).

Sources of Defendant's Rights

National Sources of defendant’s rights

The constitution, including country's Criminal Procedure Code and Criminal Code are the national sources of defendant's rights.

International Sources of Defendant’s Rights

Article 4(3) of the constitution declares primacy of the ratified international agreements over the national laws. Also see the treaties signed and ratified by KZ on the United Nations' website [3].

Rights of the Accused

Right Against Unlawful Arrests, Searches and Seizures

The Constitution, article 16: 1. Everyone shall have the right to personal freedom. 2. Arrest and detention shall be allowed only in cases stipulated by law and only with the authorization of the with the right of appeal. See chapter 31 of CPCKZ (Criminal Procedure Code of the Republic of Kazakhstan) for more detailed information about searches and seizures, which must be authorised following existence of a sufficient evidence. Right Against Unlawful Detention The Constitution, article 16 in paragraph 2 continues that without the authorization of the court, a person shall be detained for a period of not more than seventy-two hours. Right Not to be Tortured or Ill-Treated 1. Human dignity shall be inviolable. 2. No one should be subjected to torture, violence, abusive or other treatment and punishment degrading human dignity. Right to Medical Care The Constitution, article 29 guarantees the right to medical care. Right to be Informed of Charges The Constitution, article 16: 3. Every person detained, arrested and accused of committing a crime shall have the right to the assistance of a lawyer (defender) from the moment of detention, arrest or accusation. CPCKZ, article 14: 3. Any person detained shall be immediately notified of the reason of detention, as well as in the commission of what offence under the criminal law, he (she) is suspected. CPCKZ, article 26: 2. The body, conducting the criminal proceedings shall explain to the suspected, accused their rights and provide them the opportunity to defense themselves from suspicion, accusations by all means not prohibited by law, as well as take measures to protect their personal and property rights. Kazakhstan Right to Presumption of Innocence The Constitution, article 77 (3): 1) a person is considered to be innocent of committing a crime until his guilt is recognized by the court judgment that has entered into legal force; Right Against Self-Incrimination The Constitution, article 77 (3): 6) the accused is not obliged to prove his innocence; 7) no one is obliged to testify against himself, or his spouse (-s) and close relatives, whose circle is determined by law. Priests are not obliged to testify against those who confided in them at confession; Right to Counsel and Effective Assistance Constitution, article 13: see a chapter above, 'The legal aid situation in the country'. Right to a Present a Defense CPCKZ, article 26: 1. The suspect, the accused have the right to defence. They can exercise this right both personally and with the help of a defence lawyer in the manner prescribed by this Code. Right to Due Process CPCKZ, article 8 declares as objectives of criminal procedure to ensure that suspects and accused of a crime/s shall have fair trial, correct application of criminal law, and be protected from unlawful restriction of their rights and freedoms. CPCKZ, article 192: 8. The suspected, the victim shall have the right to appeal against the unjustified delay in the investigation and to file a petition to the procurator for establishment of a certain period, during which the person conducting the criminal prosecution shall complete the investigation of the case in full or to appeal to the court in the manner prescribed by this Code. Right to Equal Protection of the Laws Constitution, article 14: 1. Everyone shall be equal before the law and court. Kazakhstan Right to Bail CPCKZ, article 145 explains terms of bail and notes that 'the pledge shall not be applied in cases stipulated by part nine of article 148 of this Code' (e.g. incases of grave crimes). Right Against Ex Post Facto Prosecution Constitution, article 77, 3: 5) laws that establish or strengthen liability, impose new duties on citizens or worsen their situation, do not have retroactive effect. If, after committing the offense, the responsibility for it is cancelled or mitigated by law, the new law shall be applied. Right Against Double Jeopardy Constitution, article 77, 3: 2) no one may be subjected to repeated criminal or administrative liability for the same offense. Right to a Fair Trial Also see above right to Due Process. i. General CPCKZ, article 11: 1. Criminal justice in the Republic of Kazakhstan shall be exercised only by the court. Assignment of powers of the court whosoever entails the criminal liability under the law. 2. No one shall be found guilty of a criminal offence, as well as subjected to criminal punishment except by a court decision and in accordance with the law. Article 51: 2. Any criminal case can only be considered by legitimate, independent, competent and impartial composition of court that ensured by compliance with the rules of this Code: ii. Right to a Trial by Jury CPCKZ, 52. The consideration of criminal cases in the courts of first instance shall be carried out by a single judge, and for especially grave crimes, upon the request of the accused, by a court with the participation of a jury consisting of one judge and ten jurors, with the exception of cases about iii. Right to a Speedy Trial CPCKZ, 322: 4. The main trial shall commence no earlier than three days from the date of notification of the parties of the place and time of the court hearing and no later than ten days at a reduced order of consideration, and fifteen days under the general order of consideration from the issuance of the decision on its appointment. In exceptional cases, this period may be extended by the decision of the judge, but not more than thirty days. 5. The main trial must be completed within a reasonable time. Kazakhstan iv. Right to an Impartial Judge Constitution, article 72: 1. The courts consist of permanent judges whose independence is protected by the Constitution and the law. CPCKZ, article 22: 1. A judge in the administration of justice shall be independent and subject only to the Constitution of the Republic of Kazakhstan and the law. 2. Any interference in the activities of the court in the administration of justice is prohibited and shall be punishable by law. Right to Language Interpretation CPCKZ, article 30: 3. Ensures use of the services of an interpreter and free of charge. Right to Habeas Corpus CPCKZ, article 14: 2. Detention and house arrest shall be allowed only in the cases provided by the present Code and only with the authorization of the court, with the right of the detainee to appeal to the court or house arrest. Capital Punishment Article 15 1. Everyone shall have the right to life. 2. No one shall have the right to deprive life of a person arbitrarily. The death penalty is established by law as an exceptional punishment for terrorist offenses involving the death of people, as well as for particularly serious crimes committed in wartime, with giving the sentenced person the right to seek pardon. Right to Appeal CPCKZ, article 107: 1. In the course of the pre-trial investigation, the suspect, his/her defense lawyer, legal representative, victim, his/her legal representative, representative, a person whose rights and freedoms are directly affected by the act of the investigating judge, shall have the right to appeal. Also refer above to CPCKZ, article 192 (8) in the chapter, Right to Due Process. Also, see below the subchapter: iv Interrogation. Kazakhstan 3. Rights of Counsel Right to Provide Representation CPCKZ, article 70 lists the rights of the defense counsel. Right of Access to the Client CPCKZ, article 70: 2. The defense counsel shall have the right to: 1) have with the suspected, accused a private and confidential meeting, without limitation of their number and duration. Right to Information CPCKZ, article 70: 2.The defense counsel shall have the right to access the relevant information and be involved in relevant procedures as described in the following subparagraphs 1) to 13). Right to Confidential Communication with the Client See CPCKZ article 70, 2. 1) provided above in the chapter: Right to Access to the Client. 4. Means of Protecting or Enforcing Rights Exclusionary Rule and Nullity of Procedure Constitution, article 77, 3: 9) evidence obtained in an unlawful manner is not legally binding. No one can be convicted solely on the basis of his own confession. CPCKZ article 10: 3. Violation of the law by the court, the bodies of criminal proceedings in the criminal proceedings is inadmissible and entails liability under the law, annulment of illegal acts and their abolition. See also article 112 of this Code for more details.


References