Information regarding the regulatory resolution of the Constitutional Court
(№ 29 of 25 September 2023)
The Constitutional Court was asked to review the constitutionality of Article 482 of the Code of Criminal Procedure (hereinafter – the CCP).
According to this article, a convicted person has the right to appeal to a court against the actions (inaction) and decisions of a penal institution or body enforcing a sentence affecting his or her rights and legitimate interests, as well as against decisions of the procurator on matters related to the enforcement of the sentence.
In the opinion of the subject of the appeal, the provision of the contested norm deprives a citizen of the right to receive one of the types of qualified legal assistance, imposes on him an obligation not provided for by law to personally sign and submit complaints to the court, depriving a lawyer of such a right, and creates obstacles for convicted citizens to access qualified legal assistance guaranteed by the Constitution.
The Constitutional Court considers that at the stage of sentence enforcement the defence counsel's procedural right to file motions in the interests of the convicted person is limited. The defence counsel is not empowered to lodge complaints in defence of the convicted person. The noted legal gap in practice is filled by a lawyer providing legal assistance to a convicted person by filing complaints on behalf of the convicted person on the basis of a power of attorney issued to him by the convicted person, which includes the authority to bring complaints on behalf of the principal. The CCP does not provide for such a procedural figure as a representative of the convicted person among the participants in criminal proceedings. The inability of a convicted person to use the services of a lawyer to file complaints in defence of the rights and interests of such a person at the stage of sentence enforcement significantly limits the scope of legal assistance guaranteed by the Constitution and established by other laws of the Republic.
In addition, a review of Article 482 of the CCP also revealed a semantic non-identity of its texts in the Kazakh and Russian languages.
The Constitutional Court found the first sentence of the first part of Article 482 of the Code of Criminal Procedure to be unconstitutional and recommended that the Government submit to the Mazhilis of Parliament, within six months at the latest, a draft law aimed at improving the legal regulation of the rights of persons to defend themselves and to receive qualified legal assistance in criminal proceedings. Before the adoption of new normative legal acts, the Constitution and the judgement of the Constitutional Court shall be directly applied, taking into account the peculiarities of the legal regulation of the public relations affected.