of December 6, 2002 No. 25
About respect for the principle of publicity of criminal law of procedure
Studying of court practice of respect for the principle of publicity of legal proceedings showed that courts of the republic consider the vast majority of criminal cases in proceedings in open court, and when carrying out the closed judicial sessions are guided by the requirements established by the law. At the same time there are cases of illegal restriction of publicity of legal proceedings.
For the purpose of respecting the rule of law in case of administration of law the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. The principle of publicity of legal proceedings enshrined in Article 29 of the Code of penal procedure (further - the Code of Criminal Procedure), in total with other principles provides accomplishment of the tasks of criminal procedure directed to exposure and accountability of persons who committed crimes on fair legal proceedings. In this regard courts need to realize more widely this principle, to provide possibility of open entry to courtrooms of all interested persons, including representatives of mass media.
2. Courts shall observe strictly requirements of the criminal procedure law on open legal proceedings of cases in all degrees of jurisdiction and not allow the facts of violation of the principle of publicity of legal proceedings, unreasonable refusal to citizens to be present at court room.
Illegal restriction of publicity (unreasonable classification of case papers, holding private meetings on the unforeseen law to the bases, etc.) can entail derogation and infringement of procedural law of participants of process.
Depending on nature and materiality of these violations the production which took place on case can be nullified, with cancellation of the passed decision, or collected materials can be acknowledged not having strength of evidence.
3. It is necessary to understand as publicity of legal proceedings not only carrying out open legal proceedings, but also ensuring participation in it the parties, possibilities of presence of the other persons who are not participating in case. Publicity assumes availability of participants of process to all case papers including received during investigation and search operations, to the instructions of the prosecutor this during pre-judicial investigation (except as specified, provided by the law). Besides, this principle joins public declaration of the judgment, the notice and acquaintance of the parties with the arrived claims of other participants of process, awareness on time and the place of consideration of the case in court of any instance, creation of the single database of the sentences which took legal effect and resolutions of courts and open entry to them, availability of information on execution of court resolutions.
4. Publicity limits on pre-judicial production stages by case according to article 201 Code of Criminal Procedure are determined by the prosecutor, and in judicial session - court.
The court, according to the petition of the parties or on own initiative, in case of purpose of the main legal proceedings, with reduction in the resolution of the corresponding bases, shall resolve issue of the opened or closed consideration of the case.
5. Participants of process can declare petitions for restriction of publicity of legal proceedings as at stage of purpose of the main legal proceedings (initial hearing of case), and during the main legal proceedings.
Other persons, including representatives of the mass media having no right to declare petitions for hearing of cases in the opened or closed judicial session.
6. Petitions for restriction of publicity are subject to satisfaction only in the presence of the circumstances specified in part one of article 29 Code of Criminal Procedure, for the purpose of protection of the state secrets, prevention of disclosure of data on intimate aspects of life participating in case of persons, safety of the victims, witnesses and other persons, members of their families or close relatives, protection of interests of minor defendants. According to part six of article 106 Code of Criminal Procedure of the claim are considered by the investigative judge solely without carrying out judicial session. If it is necessary to research the circumstances important for acceptance of legal and reasoned decision, the investigative judge considers the claim in the closed judicial session with participation of the corresponding persons and the prosecutor which absence does not interfere with consideration of the claim. According to the order of the investigative judge judicial session can be held in the video conference mode.
7. Restriction of publicity of legal proceedings can extend to the entire period of judicial session or to that its part in which the circumstances specified in part one of article 29 Code of Criminal Procedure are researched about what it shall be specified in the resolution.
If concerning certain defendants there are bases for carrying out the closed legal proceedings in connection with protection of the state secrets, and these circumstances do not concern to other defendants, the court has the right to allocate from criminal case in separate production another criminal case which is subject to consideration in the closed judicial session.
If allocation of case affects comprehensiveness, completeness of its research and permission, then production of such legal proceeding, according to part four of article 44 Code of Criminal Procedure, is not allowed. In this case the court, according to part one of article 29 Code of Criminal Procedure, resolves issue of carrying out the closed legal proceedings on case in general.
8. The chairman when opening the main legal proceedings declares consideration of the case in the opened or closed judicial session. In the protocol of judicial session the corresponding record is made.
In case of receipt in the main legal proceedings of the petition for consideration of the case in the closed judicial session the court shall find out from person who declared the petition on what bases provided by the law the question of restriction of publicity of legal proceedings and opinion of other participants of process is put. If the court made the decision according to the declared petition, conferring on site, it is entered in the protocol of judicial session if the petition is considered in the consultative room, the court issues the decree in the form of the separate procedural document.
9. According to requirements of article 347-1 Code of Criminal Procedure fixation of the course of judicial session is performed by the court session secretary by means of means audio-, videos. The impossibility of use of means audio-, video because of technical defect of the equipment does not exclude continuation of judicial session with obligatory reflection of the reasons of non-use audio-, videos in the protocol of judicial session.
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