The right to personal freedom must be protected at all stages of criminal proceedings - Constitutional Court

Теlegram CС - https://t.me/consot_kz  

 

The Constitutional Court considered a citizen's appeal to review the constitutionality of part five of Article 319 of the Code of Criminal Procedure (CCP).

According to this provision, when issuing a ruling to accept a case for trial, the judge is obliged to consider the issue of preventive measures in relation to the person brought before the court. If the term of detention of such a person expires, the judge is obliged to extend the specified term.

History of circulation

In his appeal, the applicant stated that the period of his detention set by the investigating court expired on December 18, 2024. The criminal case was accepted by the court for consideration on December 20, 2024, which decided to extend the defendant's detention “until the case is considered on its merits.”

The applicant believes that the current wording of the provision creates legal uncertainty and, in violation of the Constitution, allows for the possibility of keeping the accused in custody after the expiry of the period set by the court.

Conclusions of the Constitutional Court

The Constitutional Court has stated that any restriction of human and civil rights and freedoms must not only be strictly defined by law, but also comply with the principle of legal certainty – it must be clear, predictable, and not subject to arbitrary interpretation.

Any restriction of the constitutional right to personal freedom, including in the form of detention, may only be applied on the basis and in the manner established by law, and only with the sanction of a court.

Legislative mechanisms in criminal proceedings related to preventive measures must ensure constant and timely judicial control. They cannot leave procedural “loopholes” that allow a person to be kept in custody without a court decision, even for a short period of time.

Thus, in accordance with the current law of the Republic of Kazakhstan, any extension of detention must be justified by necessity and confirmed by a court.

The legislator has provided for the mandatory advance decision on the extension of such a term at the pre-trial investigation stage. At the same time, according to the Constitutional Court, in order to ensure legal certainty and predictability of the law, a clearer statement of the criminal procedure rules governing the observance of human and civil rights and freedoms, including the detention of a person after the completion of pre-trial proceedings, is required.

The Constitutional Court noted that the incorrect wording of part five of Article 319 of the Code of Criminal Procedure could be interpreted in practice as obliging the judge to extend the period of detention without alternative for the duration of the criminal case if it had expired at the time the case was brought to court. Meanwhile, Article 342 of the Code of Criminal Procedure specifies the calculable terms of detention of the defendant for the period of the trial.

Constitutional Court ruling

Based on the legal positions set out in the final decision, the Constitutional Court found that part five of Article 319 of the Code of Criminal Procedure was unconstitutional insofar as it referred to “extending the term of application of a preventive measure if it has expired by that time.”

The Constitutional Court recommended that the Government submit to the Mazhilis of Parliament, within six months, a draft law aimed at bringing the legislation into line with the legal positions it had set out in its final decision.

The full text of the Constitutional Court's ruling can be found at the following link https://www.gov.kz/memleket/entities/ksrk/documents/details/872218?lang=en