Information regarding the regulatory resolution of the Constitutional Court
(No. 53 - NP of 9 October 2024)
The Constitutional Court considered the appeal of a citizen on verification of the conformity to the Constitution of the Republic of Kazakhstan of paragraph 3) of the first part of Article 94 of the Criminal Procedure Code of the Republic of Kazakhstan (CPC).
Under this provision of the Code of Criminal Procedure, a defence counsel may not participate in criminal proceedings if he or she is in a family relationship with a person who has interests opposite to those of the defendant.
The subject of the application to the Constitutional Court is the head (and founder) of a construction organisation and a criminal case of fraud was initiated against her. Her chosen defence counsel (lawyer) was suspended by the prosecutor's decision from participating in the criminal proceedings due to the fact that he is a close relative of the person who had previously entered into a booking contract with the said organisation.
According to the applicant, the wording of paragraph 3) of part one of Article 94 allows the prosecutor to apply this provision at his discretion (discretion), which violates her constitutional rights to receive qualified legal assistance from a lawyer (defence counsel) of her choice.
Following the review, the Constitutional Court concluded that this provision of the Code of Criminal Procedure was in conformity with the Constitution. In its final judgement, it stated that the removal of a defence counsel from participation in criminal proceedings in the presence of circumstances established by law, including a conflict of interest, does not contravene the Constitution, as it is aimed at ensuring fairness and legality of criminal proceedings and the adoption of a correct decision in the case. The work of lawyers as qualified defenders is closely linked to the exercise of the right to judicial protection and the principles of justice enshrined in the Basic Law, and serves the public interest in ensuring objectivity, impartiality and fairness in decision-making in criminal cases.
At the same time, considering the results of the audit, the Constitutional Court, in its final judgement, recommended that the Government consider further improvement of the criminal procedure legislation, considering the legal positions set out therein.