Comment to article 208. Procedure for summoning for questioning The Criminal Procedure Code of the Republic of Kazakhstan
A witness, victim, or suspect is summoned by the person conducting the pre-trial investigation for questioning with a summons.
The summons shall indicate the surname, first name, patronymic (if any) of the person being summoned for questioning, last name, first name, patronymic (if any), position of the person to whom the person is being summoned, address and time of appearance for questioning (day, hour), the right to invite a lawyer, as well as the consequences of failure to appear without valid reasons. the reasons.
The summons is handed over to the person being summoned for questioning, against receipt, or transmitted by means of communication. In case of temporary absence of the person being summoned for questioning, the summons is handed to an adult member of his family or transferred to a housing maintenance organization or administration at the place of residence or to the administration at the place of work or on behalf of the person conducting the pre-trial investigation to other persons and organizations that are required to transfer the summons to the person being summoned for questioning.
The interrogated person may be summoned using other means of communication.
A suspect in custody is summoned and taken for questioning through the administration of the place of detention.
The person being summoned for questioning must appear at the appointed time or notify the person conducting the pre-trial investigation in advance of the reasons for non-appearance. In case of failure to appear without valid reasons, the person being summoned for questioning may be brought in or other measures of procedural coercion provided for by this Code may be applied to him.
A person under the age of eighteen is summoned for questioning through his legal representatives, and in their absence through the guardianship and guardianship authorities or through the administration at his place of work or study.
A serviceman is called in for questioning through the command of a military unit.
Interrogation is one of the most common investigative actions through which an investigator obtains evidence such as testimony and an interrogation protocol (Part 2 of Article 111 of the CPC). The essence of the interrogation is to obtain information from the person conducting the pre-trial investigation about the circumstances to be established in the criminal case and relevant to a comprehensive, complete and objective investigation.
The law includes a witness, a victim, and a suspect among the persons to be called for questioning. Since the law provides for the obligation of an expert (paragraph 1, part 5, Article 79 of the CPC), a specialist (paragraph 1, part 5, Article 80 of the CPC), a civil plaintiff (Part 3, Article 71 of the CPC), and a civil defendant (Part 3, Article 74 of the CPC) to appear at the summons of the body conducting the criminal proceedings and give evidence, these The procedure established by the commented article for summoning them for questioning should also apply. In addition, such an order should also apply to a witness who has the right to defense, since, according to paragraph 24 of art. According to Article 7 of the CPC, he is classified, along with the witness, as independent other persons participating in the criminal process and, in particular, he is obliged to appear at the summons of the person conducting the pre-trial investigation (Part 6 of Article 78 of the CPC). At the same time, the persons specified in Part 2 of Article 78 of the CPC are not subject to interrogation as witnesses.
These persons may be summoned for questioning only after the criminal case has been accepted for trial and only by the official in charge of the criminal case, if there are specific factual grounds. Such grounds are the existence of sufficient factual data to believe that a person may be aware of any circumstances relevant to the case (Part 1 of Article 78 of the CPC). A person is called for questioning as a witness entitled to defense if he is identified in the statement and report of a criminal offense as the person who committed it, or a witness participating in the criminal process testifies against him, but no procedural detention has been applied to this person or a decision has been made to recognize him. suspects (Part 5 of Article 78 of the CPC). Summoning a person for questioning as a victim - if there is reason to believe that moral, physical or property harm has been caused to him directly by a criminal offense (Part 1 of art. 71 CPC). A suspect who has not been arrested is summoned for questioning in order to establish the circumstances that served as the basis for recognizing him as a suspect or in connection with a decision on the qualification of his act (Part 1 of Article 64 of the CPC).
Summoning these persons, as well as a suspect who is not under arrest, for interrogation consists in handing them a summons, which is sent through a postal institution or through a courier, or through other means of communication.
In addition to the information specified in Part 1 of Article 208 of the CPC, the agenda must also include: the date on which the agenda was issued (day, month, year); as whom (i.e., as which participant in the process) the person is called and the address of his place of residence; the name of the pre-trial investigation body and the number of the office to which the person is called and the phone number (for notification in case of inability to appear); the need to have an identity card or other document replacing it; the seal (stamp) of the criminal prosecution body.
A summons for questioning may also be carried out through other means of communication, including telephone messages, telegrams, SMS messages, fax messages, e-mail, the contents of which must comply with the requirements of Part 1 of Article 208 of the CPC, as well as sending a summons through a courier, whose surname, first name and patronymic must be indicated. on the agenda. Summoning these persons for questioning in any other way or in any other form not specified in Part 1 of Article 208 of the CPC may not entail their responsibility for non-appearance.
The fact of the delivery of the summons must be certified by the signature of the person being called on the counterfoil of the summons, and in his absence - by the person to whom it was handed, indicating his surname and initials, date and time of delivery, the signature of the person who received the summons, and the surname and initials of the person who sent the summons or the notification of the postal institution her presentation. If a person refuses to accept the summons, this is indicated in the counterfoil of the summons, which it is advisable to certify with the signature of unauthorized persons (neighbors, colleagues, etc.). The counterfoil of the summons or the notification of the postal institution about the delivery must be returned to the person conducting the pre-trial investigation in order to attach it to the materials of the criminal case, which confirms the fact of the proper and timely summoning of the person for questioning.
If the summons is sent by SMS, e-mail, etc., the fact of its receipt can be confirmed by a printout from the relevant communication services.
Failure to deliver or untimely delivery of the summons must be certified by an appropriate mark on the summons or by a written explanation from the courier or the person who received the summons to be handed over to the person being called, but did not deliver or did not deliver it in a timely manner.
Written confirmation of receipt of the summons has procedural significance: a person is obliged to appear for questioning, and his failure to appear without a valid reason when establishing the fact of timely delivery of the summons is the basis for his forcible delivery for interrogation, imposition of a fine or a change in the measure of restraint (part 1 of art. 153, art. 157, art. 160 of the CPC).
After the interrogation, the summons of the criminal prosecution body should indicate the length of time the person has been in the criminal prosecution body, which is a confirmation of a valid reason for absence from work (study), as well as for reimbursement of expenses incurred by the person in connection with the summons for interrogation.
A special summoning procedure is provided for minors (through legal representatives); suspects against whom a preventive measure in the form of arrest has been chosen (through the administration of the pre-trial detention facility); for suspects detained in accordance with Article 128 of the CPC (through the administration of the temporary detention facility), for witnesses, victims against whom a security measure has been chosen (through the body providing security measures), military personnel (through the command of the military unit); persons located outside Kazakhstan (based on a request (instruction, petition) for legal assistance). If it is necessary to interrogate persons serving sentences in places of deprivation of liberty, they are called through the administration of the place of serving the sentence.
According to Article 157 of the CPC, if a person who is being summoned for questioning fails to appear without valid reasons, he may be brought in on the basis of a reasoned decision of the person conducting the pre-trial investigation. The recognition of the reason for non-appearance as disrespectful must be confirmed by sufficient factual data.
Among the valid reasons for the non-appearance of a person duly notified of the summons, the law recognizes: illness, which makes it impossible for a person to appear, the death of close relatives, natural disasters, and other reasons that make it impossible for a person to appear at the appointed time. The person summoned for questioning is obliged to notify the body by which they were summoned (Part 2 of art. 157 CPC) and submit an appropriate document confirming their presence (for example, a sick leave or a certificate of temporary disability certified by a doctor of a medical institution). Other reasons that deprive a person of the opportunity to appear at the appointed time for questioning include, for example, the care of a sick family member (if there is no possibility of assigning care to another person), a break in traffic, as well as other reasons that, depending on the circumstances in each particular case, can be considered valid.
In order to ensure the appearance of a person for the performance of an investigative action, a measure of procedural coercion may be applied to him in the form of an obligation to appear - a written obligation of a witness, victim, suspect who is not under arrest to appear promptly at the summons of the criminal prosecution authority. This measure of procedural coercion can only be applied if there are sufficient grounds to believe that a person may evade participation in investigative actions, or if he actually fails to appear on summons without valid reasons (Article 156 of the CPC). If the obligation to appear is not fulfilled, a monetary penalty may be imposed on the specified participants in the criminal process in accordance with the procedure provided for in Article 160 of the CPC, and a preventive measure may be applied against the suspect.
When a person under the age of eighteen is summoned for questioning, the summons is addressed to the legal representative, and in his absence - to the guardianship and guardianship authorities or the administration at his place of work or study. The summons is sent and served according to the general rules established by the first part of the commented article. At the same time, the agenda must include the surname, first name and patronymic of the legal representative, or the guardianship and guardianship authority, or the name of the administration at his place of work or study, indicating the addressee's obligation to ensure the appearance of the minor for questioning, as whom he is being summoned, and the need for both the legal representative and the minor to have documents certifying them. personality. A minor suspect who has been subjected to a preventive measure in the form of arrest is summoned for questioning through the administration of the detention facility. In some cases, it is possible to deviate from the general rules of summoning for questioning due to objective circumstances. For example, when an investigation has factual information about the abuse of the rights of a legal representative, or about a conflict between a minor and him, or when calling a minor through legal representatives may have adverse consequences for the minor or for the investigation, etc.
4. Military personnel, witnesses and victims, are summoned for questioning through the command of a military unit in accordance with the procedure provided for in part one of the commented article. Military personnel suspected of committing crimes against whom a preventive measure in the form of arrest has been chosen are sent for investigative actions, including for interrogation, under the protection of a convoy armed with standard-issue weapons (paragraph 211 of the Charter of the Internal Service of the Armed Forces, Other Troops and Military Formations of the Republic of Kazakhstan, approved by the Government of the Republic of Kazakhstan). By Decree of the President of the Republic of Kazakhstan dated July 05, 2007 No. 364).
Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Source: The PARAGRAPH Information System Document: Commentary to Chapter 26 of the Criminal Procedure Code of the Republic of Kazakhstan "Interrogation and confrontation" (Suleimenova G.Zh. professor, member of the Almaty City Bar Association)
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