Information regarding the regulatory resolution of the Constitutional Court
(№ 60 of 27 December 2024)
The Constitutional Court considered an appeal of A. F. Kunakbaev on the verification of compliance with paragraphs 1 and 2 of Article 12, paragraphs 1 and 3 of Article 13, paragraph 2 of Article 20 and paragraphs 1 and 3 of Article 39 of the Constitution of the Republic of Kazakhstan, paragraph two of Article 109, subparagraph 2) of paragraph one of Article 134 of the Criminal Executive Code of the Republic of Kazakhstan dated 5 July 2014 (hereinafter - CEC) and paragraph 104 of the Internal Regulations of the penal enforcement system, approved by Order of the Minister of Internal Affairs of the Republic of Kazakhstan from 17 November 2014 № 819 (hereinafter - the Rules).
At the present time, the subject of the appeal is serving a long sentence of imprisonment in an institution of the penal enforcement system. During his placement in the disciplinary isolation ward of the institution for violation of internal regulations, he was not given the opportunity to make a telephone call to a lawyer to receive qualified legal assistance.
The subject of the appeal believes that the norms mentioned by him in terms of the restriction on telephone conversations violate his constitutional right to defend himself by all means not contrary to the law, as well as his right to receive qualified legal and medical assistance.
The Constitutional Court has previously clarified that the constitutionally enshrined right of everyone to receive qualified legal assistance is not subject to restriction in any case. In this context, the establishment of peculiarities of legal aid by other normative legal acts, except for the Law of the Republic of Kazakhstan dated 5 July 2018 ‘On Advocacy and Legal Aid’ (hereinafter - the Law), may consist in the creation of special conditions for the activities of persons providing such assistance, taking into account the specifics of the legal process, but should not be accompanied by a reduction in the scope, types and methods of legal aid (Regulatory Resolution № 29-NP dated 25 September 2023).
In accordance with paragraph 1 of Article 34 of the Constitution, everyone is obliged to observe the Constitution and legislation of the Republic of Kazakhstan and to respect the rights, freedoms, honour and dignity of other persons. The basic duties of a convicted person include compliance with the internal regulations of the institutions or bodies executing the sentence and fulfilment of the lawful requests of the staff of those institutions or bodies and of persons authorised to control and supervise the behaviour of convicted persons (paragraphs 2) and 3) of part one of Article 11 of the Penal Enforcement Code).
The enshrinement in the Penal Enforcement Code of certain restrictions on the rights of convicts who have violated the established procedure for serving their sentences does not contradict the Constitution, provided that they do not degrade human dignity and are established only at the level of laws, as well as are proportionate to the offence committed.
The list of cases in which telephone calls are allowed, as set out in the second part of Article 109 of the Penal Enforcement Code and paragraph 104 of the Rules, contributes to the maintenance of the convicted person's social ties and should not be perceived in law enforcement practice as exhaustive. This provision should be considered in conjunction with other provisions of the Penal Enforcement Code, which do not limit the possibility for a convicted person to receive qualified legal assistance or medical care even while under strict conditions of serving a sentence, as well as while in a disciplinary isolation centre.
According to the current legislation, lawyers provide legal assistance in its various forms, including advice on legal matters both orally and in writing. Such legal counselling may concern the drafting of applications, complaints, petitions and other documents of a legal nature (subparagraph 8) of Article 1 and subparagraphs 1) and 2) of paragraph 1 of Article 45 of the Law).
As a result of the verification, the Constitutional Court recognised the contested norms of the Penal Enforcement Code and the Rules as being in conformity with the Constitution in their interpretation, according to which, during the period of detention in a disciplinary isolation centre as a punishment, as well as in strict conditions of serving the sentence, the convicted person has the right to telephone conversations in order to receive qualified legal or medical assistance.
In addition, the Constitutional Court recommended that the Ministry of Internal Affairs clarify certain provisions of the Rules, taking into account the legal positions set out in the Regulatory Resolution, in order to eliminate the identified legal inconsistencies with the Code and the Law.