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Information regarding the regulatory resolution of the Constitutional Court
(№ 9 of 11 April 2023)
The Constitutional Court has reviewed a citizen's appeal concerning the constitutionality of the provision of the second part of Article 146 of the Code of Criminal Procedure (hereinafter the CPC), which completely prohibits a suspect under house arrest from leaving his home, receiving anyone, conducting telephone conversations, receiving correspondence and using means of communication.
According to the subject of the appeal, the said article of the CPC restricts his rights.
The Constitutional Court held that, while guaranteeing the right of everyone to recognition as a person before the law, the Constitution provides them with the possibility to defend their rights and freedoms by all means not contrary to the law, including the rights to judicial defence and to receive qualified legal assistance. Everyone detained, arrested or accused of committing an offence shall have the right to be assisted by a lawyer (defence counsel) from the moment of detention, arrest or indictment, respectively, and citizens shall have the right to health care. Every person to whom a preventive measure is applied is a person with dignity, inalienable and birthright rights. House arrest refers to one of the strict preventive measures and ‘consists in isolating the suspect, accused person from society without keeping them in custody, but with the application of restrictions’. The provisions of the Code of Criminal Procedure contested by the subject of the appeal must not, in law enforcement practice, in conjunction 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, must exclude risks of endangering his or her life and health.
The Constitutional Court found the provisions of paragraphs 1), 2) and 3) of the second part of Article 146 of the CPC to be in conformity with the Constitution in the following interpretation: restrictions during house arrest should ensure respect for the guaranteed rights of the arrested person and his/her defence counsel, including the rights to life and health care, recognition as a person before the law, and protection of his/her rights and freedoms by all means not contrary to the law.
The Government was recommended to submit a draft law to the Mazhilis of Parliament no later than six months to bring the Criminal Procedure Code into line.