To the Attention of the General Prosecutor's Office: A search in absence of a lawyer violates the law
On December 18, officers of the Financial Monitoring Agency searched Mikhail Kozachkov's apartment. They did not allow the lawyers of Mikhail Kozachkov and his wife to participate in the investigative activity thus violating the journalist's right to defense.
This and other defects of proceedings drew the attention of the media, human rights activists and public figures:
Appeal to the President of Kazakhstan Kassym-Jomart Tokayev
Lawyer Murat Adam about the detention of Kozachkov
Article by the international organization "Committee to Protect Journalists"
After that, the press secretary of the President assured that "the Prosecutor General's Office will ensure proper supervision of the legality of the investigation and ensure that the rights of the journalist are fully respected.
In response, the FMA stated that the investigator had the right not to let the lawyer in at hte time of the search "in order to avoid the loss of evidence and falsification of them."
The FMA played cunning with neither law no logic.
Part 12 of Article 254 of the Code of Criminal Procedure provides that the person, conducting the pre-trial investigation, shall have the right to prohibit the persons in the room or place where the search or seizure is conducted, and the persons who come into this room or place, to leave it, as well as communicate with each other or other persons before the end of the search or seizure.
So the mentioned above provision of the Code of Criminal Procedure stipulates that persons can enter the room where search is conducted. A lawyer can come in as well. The investigator has the right to prohibit persons from leaving the room before the end of the search. There are no legal provisions that authorise an investigator to prohibit anyone to enter the searched room.
This means that the legal regulation of the situation differs from FMA's commentary.
As for the logic of the commentary, loss of evidence is possible if someone takes it out of the searched room. Therefore, the law empoers the investigator to prohibit persons from leaving the room before the end of the search. Letting a lawyer in cannot entail the loss of evidence.
Anna Kustova, Kozachkov's wife, requested the presence of a lawyer during the search in her apartment. Her lawyer Anna Veretelnikova arrived at the place of the search. Preventing the lawyer from entering the apartment was a out of logics and constituted procedural defects . Yelena Zhigalyonok, Mikhail's lawyer, was not allowed into the apartment as well.
Adil Soz once again draws the attention of the supervisory authority to the violation of Articles 13 and 16 of the Constitution of the Republic of Kazakhstan and demands to ensure legality in Mikhail Kozachkov's case.
Adil Soz believes that the political will of the state authorities and public administration is required to ensure legality of the case.
