The President of the country, speaking at the fifth meeting of the National Council of Public Trust on February 25, 2021, noted that building a rule of law is impossible without a strong and independent legal profession.
The Criminal Procedure Code of the Republic of Kazakhstan (CPC RK) establishes that criminal proceedings are carried out on the basis of the principle of adversarial nature and equality of the parties to the prosecution and defense. According to the provisions of the Criminal Procedure Code of the Republic of Kazakhstan, only the investigator collects evidence in a criminal case, which excludes the possibility of the defense side during the pre-trial investigation independently collecting factual data and submitting it directly to the court. Moreover, the prosecution should not exercise the function of proving (that is, admitting factual data as evidence), since only the court recognizes that the provided factual data is evidence.
In the course of pre-trial prosecution, the parties should only be engaged in the collection of factual data, justify their sufficiency and submit to the court.
Also, at present, the prosecution is presenting an indictment before the trial is considered by the court, that is, it determines the persons guilty without a verdict.
We believe that the presentation of an accusation should be carried out by a prosecutor in the capacity of a public prosecutor only in court.
The above measures will make it possible in practice to establish the real implementation of the principle of adversarial nature and equality of the parties to the prosecution and defense, which will contribute to a fair resolution of cases, a decrease in the number of complaints and the exclusion of an accusatory bias in the consideration of cases by the courts.
On the implementation of the above conclusions and proposals, the Institute of Parliamentarism is preparing a corresponding draft law.
April 16 this year At the Institute, a meeting was held with the participation of representatives of law enforcement, government agencies and the legal profession, where the conceptual approaches of the draft law were considered and it was noted that the implementation of the noted novelties in the CPC would strengthen the guarantees of the rights and freedoms of citizens involved in the criminal process.
The draft law being developed by the Institute complements the Concept of the draft law on the implementation of a three-tier model with the delimitation of powers and areas of responsibility between law enforcement agencies, the prosecutor's office and the court, and taking into account the ability of the prosecutor to make procedural decisions, amendments are envisaged to increase the competitiveness of the process and strengthen the independence of the legal profession and strengthen the guarantee.
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Institute of Parliamentarism on April 27 this year a round table was held with the participation of deputies of the Mazhilis of Parliament, representatives of the Supreme Court, the General Prosecutor's Office, the Ministry of Justice, law enforcement, government agencies, the legal profession and the academic community to discuss conceptual approaches to the draft law on increasing the competitiveness and equality of the parties, strengthening the independence of the legal profession and strengthening the guarantee of protection the rights of participants in the criminal process, developed by the Institute of Parliamentarism at the request of a group of deputies of the Mazhilis.
The bill is aimed at implementing the order of the Head of State on the systemic modernization of the judicial system in order to ensure impartial and fair justice, the priority of work to ensure the protection of the constitutional rights of citizens and the need to create conditions for real competition between prosecutors and lawyers in court.
The speakers drew attention to the fact that the current criminal procedural legislation did not fully resolve the principle of adversarial proceedings and equality of the parties; did not allow to fully strengthen the independence of the legal profession and exclude the accusatory bias of the court.
The reasons for the problems noted, as noted by the participants of the round table, are the presence in the legislation of norms that go against the requirements of the Constitution, since a person is considered innocent of committing a crime until his guilt is recognized by a court verdict that has entered into legal force.
The bodies of pre-trial investigation, in fact, from the beginning of the investigation, determine the guilt of a person. The prosecutor brings the person to trial with a determination of his guilt on the basis of the collected evidence.
In order to increase the protection of constitutional rights and freedoms of citizens, the draft law proposes, within the framework of a pre-trial investigation, to collect "factual data" by the prosecution and the defense, which will then be submitted to the court. The court, in turn, recognizing the "factual data" as evidence in the case, determines the guilt of the person in the commission of the crime.
At the same time, other norms have been proposed that strengthen the independence of the legal profession, increase the equality of the parties and the competitiveness of the process.
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June 16 this year representatives of the Institute of Parliamentarism took part in a meeting of the Mazhilis of Parliament to consider the conceptual approaches of the draft law on increasing the competitiveness and equality of the parties, strengthening the independence of the legal profession and strengthening the guarantee of protecting the rights of participants in criminal proceedings.
The meeting was held with the participation of deputies of the Mazhilis of the Parliament, representatives of the Supreme Court, the General Prosecutor's Office, the Ministry of Justice, law enforcement, special and state bodies, the legal profession.
Representatives of the Institute of Parliamentarism noted that the bill is aimed at implementing the instructions of the Head of State on the systemic modernization of the judicial system in order to ensure impartial and fair justice, the priority of work to ensure the protection of the constitutional rights of citizens and the need to create conditions for real competition between prosecutors and lawyers in court.
It was noted that the implementation of the bill will strengthen the protection of the rights and freedoms of participants in criminal proceedings, eliminate contradictions between the Constitution and criminal procedure legislation, strengthen the independence of the legal profession and increase the competitiveness of the process.
