A ban on the initiation of criminal proceedings on facts on which there is a civil dispute. Lawyers' access to state secrets. The possibility of confiscation of property already alienated to third parties. About these and other innovations in the Criminal Code and the CPC to the Zakon edition.Deputy of the Mazhilis of the Republic of Kazakhstan Abzal Kuspan told kz.

Traditionally, a sensitive topic for Kazakh society is the "accusatory bias" in the courts and, in general, a certain repressiveness in the actions of officials. This has a variety of manifestations: from the lack of competitiveness of the process to the criminalization of economic crimes. This obviously contradicts the "Just State" construct, which Kazakhstan positions itself as.

It is no coincidence that one of the theses of the election program of the current head of state and his Message to the people of the Republic of Kazakhstan was precisely the optimization of legislation "from the point of view of exhaustive establishment of the truth with the minimum necessary involvement of citizens in the orbit of the criminal process."

To correct the situation and bring this thesis to life, deputies have developed a draft law of the Republic of Kazakhstan "On Amendments and additions to some legislative acts of the Republic of Kazakhstan on optimization of the Criminal, Criminal Procedure and Penal Enforcement Codes." On March 13, the document is expected to be submitted to the plenary session of the Mazhilis of the Parliament of the Republic of Kazakhstan in the first reading. The Zakon edition.kz the bill was commented on by the deputy of the Mazhilis and the head of the working group, Abzal Kuspan.

To minimize the involvement of citizens in the orbit of criminal prosecution

What changes are proposed by the draft law regarding cases related to economic and tax disputes? Is the liberalization of punishments (alternative types of punishments, etc.) expected?

This is not about liberalization. One of the directions of the draft law is the rationalization of the procedure for the appointment, release and execution of criminal penalties. As part of this, on the contrary, it is even proposed to strengthen responsibility for certain offenses (the principle of "zero tolerance").

For example, this applies to liability even for attempted criminal offenses. Now "malefactors" avoid responsibility in cases where minor offenses could not be completed.

Some existing types of punishments are also being reviewed. It is proposed, for example, to correct the concept of "arrest" by excluding from it an indication of the mandatory serving of this type of punishment in conditions of "strict isolation", that is, in solitary confinement. As it is required now. Why?

The fact is that this punishment was supposed to be carried out in special receivers, but the construction of these structures was extended more than once, and therefore it was problematic to carry out the arrest. And the preventive function of arrest as an institution of criminal misconduct was not performed properly.

Or as for the confiscation of property. What's the problem here? Now, persons who have received property as a result of committing a criminal offense simply transfer it to third parties. After that, it is not possible to confiscate such property. Therefore, the draft law proposes to extend the possibility of confiscation to property obtained by criminal means, but not owned by the convicted person.

There are many such moments. They also apply to the business sector. For example, it is proposed to criminalize the previously deleted Article 215 of the Criminal Code ("Pseudo-entrepreneurship") again. Strengthening responsibility in no way contradicts the task of improving the protection of citizens' rights, which justifies any NPA. After all, this protection also includes the protection of the rights of third parties who may suffer from illegal actions.

However, the draft law does propose mechanisms that make it possible not only to liberalize legislation, but to exclude unjustified involvement of citizens in the orbit of criminal prosecution.

Namely, registration in the ERDR of a criminal case will be prohibited if:

1. The damage has not been confirmed by a specialist of the law enforcement agency;

2. there is a civil dispute;

3. without an act of tax audit or without a pre-trial or judicial appeal on tax offenses.

For the same purpose – to reduce the involvement of entrepreneurs in the orbit of criminal prosecution – amendments are proposed that should distinguish "commercial organizations" from organized criminal formations.

"The reason for imputing to entrepreneurs the provisions of the Criminal Code of the Republic of Kazakhstan (under Article 262) on organized crime lies in the almost complete identity of the signs of a commercial organization and a criminal community. For example, the presence of a sole executive body (unified management), organizational structure (structuring), activities aimed at making a profit (obtaining financial / material benefits) and more."

So, it is proposed to establish provisions that would limit the possibility of recognizing commercial organizations as criminal formations.

Alternatives to imprisonment

The information note to the draft law refers to the proposed ban on imposing imprisonment on a person who has committed a criminal offense for the first time. In those cases, of course, if it is not related to causing harm to health and causing death, the person voluntarily compensated for property damage, made amends for moral and other harm. Please comment.

There is no direct prohibition. The current legislation already instructs the courts, when choosing the type of punishment, depending on all the circumstances of the case and the personality of the defendant, to consider the possibility of imposing an alternative punishment to imprisonment and the least severe of them.

By the way, it is also appropriate to mention another proposed innovation here. The point is to provide an opportunity to conclude a procedural agreement in the form of a plea bargain for certain types of particularly serious crimes not related to the death of people.

Multiple penalties

As a punishment under some articles of the Criminal Code, it is proposed to introduce multiple fines. What is the point?

This is exactly the question that was raised earlier – about alternative types of punishment. To formulate it more clearly, the task of the bill is to ensure the proportionality of the criminal act and punishment and to do this by extending the use of sanctions alternative to imprisonment.

For this purpose, it is proposed to introduce multiple fines for committing a number of criminal offenses. Namely, we are talking about the articles of the Criminal Code:

• 189 "Appropriation or embezzlement of entrusted property of others";

• 197 "Transportation, purchase, sale, storage of oil and petroleum products, as well as oil refining without documents confirming the legality of their origin";

• 208 "Unlawful acquisition of information";

• 216 "Performing actions to issue an invoice without actually performing work, rendering services, or shipping goods";

• 218 "Legalization (laundering) of money and (or) other property obtained by criminal means" and others.

Parallel financial investigation

How likely is it that the so–called FIU – parallel financial investigation - will be introduced to return illegally acquired assets. What's the idea anyway?

The introduction of a parallel financial investigation (FIU) is necessary for the further implementation of the Law of the Republic of Kazakhstan "On the return of illegally acquired assets to the State". However, so far, according to these amendments, there is no single consolidated position of law enforcement and special agencies. In particular, the KNB and the Interior Ministry do not support these amendments.

The FIU is a complex of investigative actions aimed at collecting and consolidating evidence about the legalization and illegal possession of property obtained as a result of a committed crime.

The FIU is proposed to be implemented in two stages. At the first stage, to consolidate the concept of the FIU in the CPC, to prescribe the duty of officials of investigative bodies, inquiries and prosecutors to implement and control the FIU.

At the second stage, include in the CPC a separate chapter on the FIU, which will set out in detail the procedure, limits, grounds for starting, and timing of the FIU.

But, again, while "the possibility of implementing the FIU is being worked out."

Before going to the camera, they filmed it on the "camera"

The draft law expands the possibility and even the obligation to use audio and video recordings in criminal proceedings at all stages. Could you tell us in more detail what the purpose is? What other changes are awaiting the court proceedings in terms of modernization and digitalization?

A whole range of short stories is dedicated to this. This is the option to conduct a criminal case in electronic format by default, with the right to appeal such a decision. And the possibility of a remote confrontation. And the option to combine all procedural decisions/actions into one prosecution protocol. And much more.

And it is also proposed to allow the pre–trial investigation at the location of the victim - in the case of crimes on the Internet.

Often, the mandatory use of recording devices is also an additional protection of citizens' rights. For example, the requirement of video recording when delivering and driving a person.

It is no secret that there is a "vicious" practice that significantly infringes on the rights of citizens brought and brought to the buildings of the criminal prosecution authorities. Sometimes the first three hours are not enough to make a decision, then the person is formally taken outside the checkpoint and a new pass is issued for the next three hours.

Thus, it is possible to "overwrite" the face up to several times. To exclude this, this novel is proposed.

Or such a violation of the principle of the presumption of innocence. Sometimes people who find themselves in the orbit of criminal prosecution, as well as their loved ones, face public censure after media coverage. Moreover, the recognition of a person as a suspect is sufficient for this.

It is necessary to review the mechanisms for protecting individuals by imposing restrictions on the publication in the media of personal data of participants in criminal proceedings.

Or one more thing. In 2015, with the exception of the institute of additional investigation, the Republic of Kazakhstan introduced the practice of returning the case by the court to the prosecutor in order to eliminate significant violations of the norms of the criminal procedure law. In fact, the court returns the case to the prosecutor to correct mistakes and re-send it to the court.

Thus, the court provides assistance in the implementation of criminal prosecution, which, of course, significantly infringes on the right to protection.

It is proposed to exclude the practice of sending the case by the court to the prosecutor. If a case is accepted for consideration by a court with significant violations of the norms of criminal procedure legislation, it must be considered by the court on its merits.

I repeat, there are many proposed novels. However, their number has decreased compared to the original figure. Initially, there were 312 positions, 115 of them were accepted, 70 were under revision, 62 were not accepted, 65 were open. 196 amendments are under the conclusion of the government.

The act of protection and other new features of the lawyer

The bill proposes to increase the adversarial nature of the process by giving additional opportunities to the defender. Which ones exactly?

The list turns out to be rather long and eloquent, even if the positions are simply listed:

• to grant lawyers the right to submit to the court a document contrary to the indictment – the act of protection;

• to grant lawyers the right to publish in the media a rebuttal to the publication of the criminal prosecution authorities against the defendant, without disclosing the data of the pre-trial investigation;

• provide lawyers with access to state secrets on the basis of a non-disclosure agreement;

• provide lawyers with the right to familiarize themselves with the materials of operational investigative activities (ORD), counterintelligence activities (KRD), secret investigative actions (NSD) when sending them for examination;

• provide lawyers with the right to appoint an expert examination for all objects (now it is possible only if there is no need to request research objects from the body conducting the criminal process);

• to establish the possibility for lawyers to directly ask questions to the expert without petitioning the investigator;

• exclude the possibility of the court to appoint procedural actions on its own initiative, while retaining the possibility of requesting such actions before the court by the parties.

Each position is justified. For example, why is it proposed to grant lawyers the right to submit to the court a document opposite to the indictment – the act of protection?

The fact is that now the indictment "enters" the court with the materials of the criminal case. This contributes to the formation of an "accusatory bias" among judges. Which is what we intend to fix. At the same time, the defense act, reflecting the main evidence and refutations of the defense, is a lawyer's right, not an obligation, and does not restrict the lawyer in making petitions during the main trial.

As for access to state secrets, this is not a whim. Currently, due to the lack of a separate procedure for obtaining a lawyer's admission to participate in a case that has been classified as classified, or familiarization with materials containing state secrets, a lawyer is forced to obtain admission in a general manner, which delays the process.

Of course, access to state secrets involves making commitments on their non-disclosure.

The next point: given the evidentiary value of the results of the forensic examination, it is necessary to provide another opportunity. Namely, when initiating the examination by a lawyer, at his request, exclude from the law the condition on the possibility of exercising this right only if there is no need to demand the objects of research from the body conducting the criminal process (with the provision of an opportunity for an expert to obtain the necessary objects from the appropriate body).

The fact is that such a requirement negates the possibility of providing an alternative evidence base for the defense of the defendant.

In addition, the lawyer is currently petitioning the investigator to put questions to the expert. In this case, the investigator may reject such a request.

Such a lack of opportunity to get acquainted with the materials of operational investigative activities, counterintelligence activities and secret investigative actions puts the lawyer in a "losing" position in advance.