Commentary on Article 100. Appealing Decisions and Actions (Inaction) of Bodies and Officials of the Criminal Procedure Code of the Republic of Kazakhstan
1. Decisions and actions (inaction) of the person conducting the pre-trial investigation, the prosecutor, the court or the judge may be appealed, in accordance with the procedure established by this Code, by participants in the proceedings, as well as by individuals and legal entities if the procedural actions being carried out affect their interests.
2. Complaints shall be submitted to the state body or official authorized by law to consider complaints and make decisions in the relevant criminal case.
3. Complaints may be oral or written. Oral complaints shall be entered into a record, which shall be signed by the applicant and the official who received the complaint. Oral complaints presented by citizens during appointments with the relevant officials shall be resolved on the same general grounds as complaints submitted in writing. Additional materials may be attached to the complaint.
4. A person who does not speak the language in which the criminal proceedings are conducted shall be guaranteed the right to submit a complaint in their native language or in a language they speak.
5. A person who has submitted a complaint shall have the right to withdraw it. A suspect or accused person shall have the right to withdraw a complaint filed by their defence counsel; a civil claimant, victim (private prosecutor), or civil defendant shall have the right to withdraw a complaint filed by their representative, except for a legal representative. A complaint submitted in the interests of a suspect or accused person may be withdrawn only with their consent. Withdrawal of a complaint shall not prevent its resubmission before the expiry of the time limits specified in Article 102 of this Code, except in cases expressly provided for by this Code.
Unlike a motion, a complaint is an official statement expressing dissatisfaction and containing a request for satisfaction or elimination of the reasons that caused such dissatisfaction (see the commentary to subparagraph 55 of Article 7 of the CPC). A complaint, unlike a motion, is therefore a response by a participant in the proceedings to a procedural decision or procedural action of the body conducting the criminal proceedings which, in their opinion, is unlawful and affects their interests (Part 1 of Article 100 of the CPC). In fact, the law establishes no restrictions with regard to the submission of complaints by participants in the proceedings. Complaints, like motions, often contribute to a comprehensive, complete and objective examination of the circumstances of the criminal offence committed and must be carefully considered by the body conducting the criminal proceedings.
A particular type of complaint is a victim's complaint in cases of private prosecution and private accusation, to which subparagraph 55 of Article 7 of the CPC draws attention.
3\. According to the provisions of Part 3 of Article 100 of the CPC, the addressee of a complaint is the body conducting the criminal proceedings, which is entitled to consider complaints and make decisions in the case. In other words, the submission of complaints by participants in criminal proceedings to other state bodies or other officials who are not involved in the criminal proceedings is a waste of time, since they have no right to interfere in the course, outcome or results of the proceedings in the case. At present, it is necessary to proceed from the fact that every case is subject to thorough prosecutorial supervision by the prosecutor and the procedural prosecutor, as well as judicial review exercised by the investigating judge, and these persons are entirely sufficient to ensure the proper and timely resolution of a complaint submitted by any participant in the proceedings.
Complaints, whether written or oral, in the applicant's native language or in a language spoken by the applicant, with additional materials attached at the discretion of the participant in the criminal proceedings (Parts 3–4 of Article 100 of the CPC), may be submitted to the body conducting the criminal proceedings or stated orally during a personal meeting between the applicant and the officials conducting the criminal proceedings, at any stage thereof. Such complaints may concern both final procedural decisions in the case and the results of the performance of specific procedural actions by the body conducting the criminal proceedings.
The provisions of Part 5 of Article 100 of the CPC permit the applicant to withdraw a complaint. At the same time, certain rules must be observed in this regard. First, any complaint submitted in the interests of a suspect or accused person may be withdrawn only with their clearly expressed consent. Second, under no circumstances may a complaint submitted by the legal representative of any participant in criminal proceedings be withdrawn by another person. It may be withdrawn by the legal representative themselves. Third, the submission of any complaint is subject to specific time limits (which must be strictly observed), depending on the type of action or decision being appealed and the stage of the criminal proceedings.
Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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