Comment to Article 107. Appeal, protest against the decisions of the investigating judge of the Criminal Procedure Code of the Republic of Kazakhstan

1 During the pre-trial investigation, the suspect, his defender, legal representative, victim, his legal representative, representative have the right to appeal, and the prosecutor to protest the decision of the investigating judge:

1) on the authorization of a preventive measure in the form of detention of a suspect, extradition arrest, house arrest, bail or extension of the period of detention, house arrest;

2) refusal to authorize the detention of a suspect, extradition arrest, house arrest, bail, or refusal to extend the period of detention, house arrest;

3) on the cancellation or refusal to cancel the authorized preventive measure;

4) on the imposition or refusal to seize property;

5) about exhumation or refusal to do so;

6) the announcement of an international wanted list or the refusal to do so;

7) on the forced placement of a person in a medical organization for the conduct of forensic medical and (or) forensic psychiatric examinations or the refusal to do so;

8) on the conversion of the pledged object into state revenue or the refusal to do so;

9) to consider complaints about actions (inaction) and decisions of the prosecutor and the criminal prosecution authorities.

2 The decision of the investigating judge made in accordance with the rules of this article may, within three days from the date of its announcement, be appealed by the persons specified in the first part of this article, as well as protested by the prosecutor to the regional and equivalent court through the court whose investigating judge issued the decision. A deadline missed for a valid reason may be restored at the request of an interested person in accordance with Article 50 of this Code.

3. Filing a complaint or bringing a protest does not suspend the execution of the decisions specified in the resolution on the issues specified in paragraphs 8) and 10) of the first part of Article 55 of this Code and paragraphs 1), 2) and 7) of the first part of this Article.

4 Upon expiration of the time limit for appeal, the materials with the complaint or protest are sent to the regional or equivalent court with notification of the applicant and the person whose actions and decisions are being appealed, and the prosecutor. The decision of the regional or equivalent court, adopted based on the results of consideration of the complaint or protest, is final.

5. A judge of a regional or equivalent court, in compliance with the rules and deadlines provided for in parts two and three of this article, shall, no later than three days after receipt of the complaint or protest to the court, verify the legality and validity of the decision of the investigating judge.

The decision of a judge of a regional or equivalent court, issued as a result of consideration of a complaint or protest, comes into legal force from the moment of announcement.

6. The prosecutor and the suspect's defense counsel participate in the closed court session. The meeting may also be attended by the suspect, his legal representative, the victim, his legal representative and representative, and other persons whose rights and interests are affected by the appealed decision, whose failure to appear upon timely notification of the time of consideration of the complaint or protest does not prevent their judicial review.

7. After hearing the arguments of the parties, having considered the submitted materials, the court issues one of the following reasoned decisions:

1) on leaving the decision of the investigating judge of the district or equivalent court unchanged;

2) on the amendment of the decision of the investigating judge;

3) on the cancellation of the decision of the investigating judge and the issuance of a new decision.

8. A copy of the court decision is sent to the pre-trial investigation body, as well as to the prosecutor, the suspect, the defender and the representative of the administration of the place of detention of the person and is subject to immediate execution.

9. An appeal against a decision to extradite a person accused of committing a crime or convicted in the territory of a foreign state and judicial review of its legality and validity shall be carried out in accordance with the procedure provided for in Article 592 of this Code.

1. The subject of the norm of Article 107 of the CPC is the appeal, protest of nine types of the decision of the investigating judge:

1) on the authorization of a preventive measure in the form of detention, extradition arrest, house arrest, bail or extension of the period of detention, house arrest;

2) refusal to authorize the detention of a suspect, extradition arrest, house arrest, bail, or refusal to extend the period of detention, house arrest;

3) on the cancellation or refusal to cancel the authorized preventive measure;

4) on the imposition or refusal to seize property;

5) about exhumation or refusal to do so;

6) the announcement of an international wanted list or the refusal to do so;

7) the forced placement of a person in a medical organization for the conduct of a forensic medical and (or) forensic psychiatric examination, or the refusal to do so;

8) on the conversion of the pledged object into state revenue or the refusal to do so;

9) to consider complaints about actions (inaction) and decisions of the prosecutor and the criminal prosecution authorities.

2. The appellate instance of the regional court is provided for appealing or protesting the decision of the investigating judge on the issues mentioned above, however, with shortened terms for their consideration in the court of appeal.

Within the framework of the norm of Article 107 of the CPC, the regional or equivalent court (the judge of the regional or equivalent court alone) checks the legality and validity of the decision of the district (city) court on these issues no later than three days after the criminal case is submitted to the court of appeal.

A protocol must be kept at a court hearing of the Court of Appeal.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

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