of June 25, 2010 No. 4
About judicial protection of the rights, freedoms of man and citizen in criminal trial
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.
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