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NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of June 25, 2010 No. 4

About judicial protection of the rights, freedoms of man and citizen in criminal trial

(as amended on 20-04-2018)

For the purpose of the correct and uniform application by courts in criminal trial of the constitutional regulations and the laws providing personal liberty, personal privacy, personal and family secret, the mystery of correspondence, telephone negotiations, post, cable and other messages, and also increases in efficiency of their judicial protection the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

1. Draw the attention of courts that along with direct permission of legal cases, it is necessary to realize functions of judicial authority on protection against illegal, unreasonable restriction of the rights and freedoms of persons who are involved in criminal trial, to timely acceptance of the measures provided by the law directed to their recovery, and also compensation of damage suffered.

At pre-judicial stage of criminal procedure judicial protection is performed in case of authorization of measures of restraint in the form of detention, house arrest, pledge, measures of procedural coercion in the form of temporary discharge from position and prohibition on approach, and also by consideration of claims to actions (failure to act) and decisions of criminal prosecution authorities, stipulated in Article 106, by part two of Article 109 of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure).

During preparation of case for legal proceedings and the main legal proceedings of case judicial protection is performed by check of legality of the production which is carried out by criminal prosecution authorities, observance by them of the requirements of the law guaranteeing procedural law of persons participating in case.

At stage of execution of sentences, court orders judicial control is exercised according to Article 27 of the Penitentiary code of the Republic of Kazakhstan.

2. Courts should mean that owing to part one of article 106 Code of Criminal Procedure actions (failure to act) and decisions of the prosecutor, investigation authorities and inquiry are subject to judicial appeal: about refusal in reception of an application about criminal offense, and also about violation of the law in case of the beginning of pre-judicial investigation, interruption of terms of investigation, the termination of criminal case, the forced placement to the medical organization for forensic medical examination production, production of search and (or) dredging, making of other actions (failure to act) and decision making.

To other actions (failure to act) and decisions, check adjournment to which legality to stage of preparation of case for legal proceedings or the main legal proceedings does recovery of the infringed rights and freedoms of man and citizen difficult or impossible it is necessary to carry, for example, the resolution of criminal prosecution authorities on refusal in appointment of the defender, about refusal in the admission of the legal representative, about election and application to the suspect, the person accused of measures of procedural coercion (except for authorized by the investigative judge), refusal in recognition of person by the victim, failure to act in case of verification of messages on committed criminal offense and others.

3. The actions and decisions connected with implementation of operational search activities can be appealed directly in court according to the procedure of article 106 Code of Criminal Procedure and Item 2 of article 5 of the Law of the Republic of Kazakhstan of September 15, 1994 No. 154-XIII "About operational search activities" (further - the Law "About Operational Search Activities") if they are related to criminal proceeding.

4. The claim to proceeding decisions and actions (failure to act) of the investigator, body of inquiry, the chief of body of inquiry, the investigator, chief of investigative department, the prosecutor, according to articles 100 and 106 Codes of Criminal Procedure, the having the right tax participants of criminal trial either other persons or the organizations in that part in which the made legal proceedings and the made proceeding decisions infringe on their legitimate interests, and also the defenders who are acting for the benefit of the applicant, the legal representative or the representative.

The person who was not taking part in pre-judicial production in connection with which the complaint is made, but authorized by the applicant on submission of the claim and (or) participation in its consideration can be the representative of the applicant also.

Restriction of the right to judicial appeal of the decisions and actions (failure to act) affecting the rights and legitimate interests of citizens only on the ground that they were not recognized in the procedure established by the law as participants of process, inadmissibly. Providing guaranteed by the Constitution of the Republic of Kazakhstan (further - the Constitution) rights and freedoms of man and citizen shall follow from actual position of this person as the appropriate right needing providing (for example, person to whom it is refused registration of a statement about criminal offense; the face, whose property is withdrawn or injured during search (dredging); person which was injured from the committed crime, unreasonably unrecognized the victim, etc.).

5. In sense of article 106 Code of Criminal Procedure when checking legality and justification of decisions and actions (failure to act) of the prosecutor, investigation authorities, inquiries the investigative judge shall not determine questions which can be afterwards subject of the main legal proceedings. In particular, the investigative judge has no right to draw conclusions about the actual facts of the case, about assessment of proofs and qualification of act.

6. Application of measure of restraint in the form of detention is integrated to restriction of constitutional right for personal liberty. In this regard, according to part three of article 148 Code of Criminal Procedure, courts should research carefully the materials represented together with petitions concerning data on circumstances of committed act, data on the identity of the suspect, the person accused, their participation in making of the incriminated act, the bases for application of this measure of restraint and also to require strict observance of terms of detention of the suspect, the person accused and submission to court of petitions.

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