Information regarding the regulatory resolution of the Constitutional Court
(№ 15 dated 22 May 2023)
The Constitutional Court considered a citizen's appeal concerning the constitutionality of the third part of Article 217 of the Code of Criminal Procedure (hereinafter – the CPC).
This criminal procedural norm determines that the interrogation by the investigating judge of the victim and witness (deposition of testimony) is carried out in the presence of the prosecutor, the suspect (if any), his lawyer participating as defence counsel, the lawyer representing the victim, and, if necessary, other participants in the proceedings. The suspect shall not be summoned for interrogation if the presence of the suspect at the interrogation threatens the safety of the victim or witness.
According to the subject of the appeal, the absence of a witness entitled to defence and his lawyer from the list of persons entitled to be present when the investigating judge interrogates the victim and witness (deposition) contradicts the provisions of the Constitution on the rights of everyone to receive qualified legal assistance, to be assisted by a lawyer (defence counsel) from the moment of detention, arrest or indictment, the equality of all before the law and the courts and the inadmissibility of any discrimination.
The Constitutional Court considered that the legislator did not include a witness with the right to defence in the list of persons entitled to receive state-guaranteed legal aid. At the same time, the CPC provides for his right, on his own or through his relatives or trusted persons, to invite a lawyer as defence counsel and to give evidence in his presence, which is consistent with the constitutional right of everyone to receive qualified legal assistance. In general, an analysis of the norms of the CPC shows the existence of equality of rights and obligations of each person in the procedural status of a relevant participant in the process, defending his or her own or represented rights and interests, regardless of origin, social, official and property status, sex, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances. At the same time, leaving only to the discretion of the investigating judge the decision on the need for the presence of a witness with the right to defence when depositing testimony in law enforcement practice may subsequently lead to the restriction of the procedural rights of this person in the status of a suspect (accused).
The Constitutional Court recognised the third part of Article 217 of the CPC as compliant with the Constitution and recommended the Government to submit to the Mazhilis of Parliament a draft law aimed at improving the criminal procedure legislation.
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