Information regarding the regulatory resolution of the Constitutional Court
(№ 25 of 17 August 2023)
The Constitutional Court considered the appeal of a citizen on verification of compliance with the Constitution of the Republic of Kazakhstan of part four of Article 107 and paragraph (3) of part two of Article 484 of the Code of Criminal Procedure of the Republic of Kazakhstan (hereinafter - CCP).
According to these rules, the decision of a regional or equivalent court taken on the basis of an appeal or a procurator's application against a ruling of an investigating judge is final. Judicial acts issued by an investigating judge are not subject to cassation review.
According to the subject of the appeal, these norms do not comply with the Constitution of the Republic of Kazakhstan, as the impossibility of appealing against a judicial act issued in accordance with Article 107 of the CCP deprives him of the legal guarantee of realisation of the constitutional right of everyone to judicial protection of their rights and freedoms.
The Constitutional Court considers that the entry into force of an investigating judge's ruling after its legality and validity have been verified by a regional or equivalent court, as well as the exclusion of an investigating judge's ruling from the list of judicial acts that may be reviewed under the cassation procedure, cannot be regarded as a restriction of everyone's right to judicial protection of their rights and freedoms, since the main purpose of pre-trial proceedings is to prepare the criminal case for the main trial. The legality of the actions and decisions of the bodies conducting criminal proceedings is checked mainly during the subsequent consideration of the case in court on the merits. In drafting the Code of Criminal Procedure, account has been taken of the experience of foreign countries, where the procedure for reviewing judicial acts has been optimised and limits have been set on appeals against the decision of the investigating judge in order to exclude abuse of the right of appeal and to expedite the resolution of the appeal and the execution of the judicial act. The legislator, within the framework of his constitutional powers, has established such institutional and procedural conditions for the review of judicial acts of the investigating judge that meet the requirements of procedural efficiency, economy in the use of judicial remedies, and also exclude the possibility of delayed or unjustified reopening of court proceedings.
The Constitutional Court recognised the fourth part of Article 107 and paragraph 3) of the second part of Article 484 of the CCP as being in conformity with the Constitution of the Republic of Kazakhstan.