Commentary on Article 101. Procedure for Forwarding Complaints by Persons Detained or Held in Custody of the Criminal Procedure Code of the Republic of Kazakhstan
1. The administration of pre-trial detention facilities is obliged to immediately forward to the body conducting the criminal proceedings complaints addressed to it by persons detained on suspicion of committing a criminal offence or held in custody as a preventive measure.
2. Complaints by persons detained or held in custody concerning torture and other cruel, inhuman or degrading treatment, as well as actions or decisions of an investigator, interrogator, or head of an inquiry body, must be immediately forwarded by the administration of detention facilities to the prosecutor, while complaints concerning actions and decisions of the prosecutor must be forwarded to a higher-ranking prosecutor. Other complaints shall be forwarded by the administration of detention facilities to the person or body in charge of the case no later than twenty-four hours from the time they are received.
The provisions of Part 1 of Article 101 of the CPC regulate the procedure for considering complaints by persons detained or held in custody as a particularly vulnerable category of persons (who have not yet been convicted), in terms of ensuring effective protection of their legitimate rights and interests. The administration of pre-trial detention facilities is responsible for forwarding such complaints.
In particular, the procedure for forwarding complaints by detained persons and persons held in custody is regulated by paragraph 3 of Article 19 and Article 20 of the Law dated 30 March 1999 “On the Procedure and Conditions for the Detention of Persons in Special Institutions and Special Premises Ensuring Temporary Isolation from Society” and consists of the following rules.
Proposals, applications and complaints by suspects and accused persons addressed to state bodies, local self-government bodies, public associations and mass media shall be forwarded through the administration of the place of detention. Proposals, applications and complaints addressed to the prosecutor and the court shall not be subject to censorship and shall be immediately forwarded to the addressee in a sealed form. Proposals, applications and complaints addressed to state bodies must be considered by the administration of the place of detention and forwarded no later than twenty-four hours from the time they are submitted. Letters containing information that may impede the establishment of the truth in a criminal case or contribute to the commission of a crime, written in secret writing or cipher, or containing state secrets or other secrets protected by law, shall not be sent to the addressee, shall not be delivered to suspects and accused persons, and shall be transferred to the person or body in charge of the criminal case. Complaints concerning actions and decisions of the court, interrogator, head of the inquiry body, investigator or prosecutor shall be forwarded immediately. Responses to proposals, applications and complaints shall be announced to suspects and accused persons against their signature and attached to their personal files. Persecution of suspects and accused persons in any form for submitting proposals, applications or complaints in connection with violations of their rights and legitimate interests shall not be permitted. Officials of places of detention guilty of such persecution shall bear liability in accordance with the legislation of the Republic of Kazakhstan.
3\. Part 2 of Article 101 of the CPC contains important clarifications detailing the requirements concerning the specific procedure for submitting complaints about instances of torture and other forms of unlawful treatment of a person under investigation, as well as complaints about actions and decisions of officials of criminal prosecution bodies and the prosecutor. First, all the above-mentioned types of complaints shall be forwarded to the head of the prosecutor's office exercising supervision over the pre-trial investigation (subparagraph 6) of part 2 of Article 193 of the CPC). Second, complaints concerning the actions of the prosecutor (procedural prosecutor) shall be forwarded to a prosecutor superior to that prosecutor. Third, all other complaints shall be forwarded within the time limits established by Article 20 of the Law “On the Procedure and Conditions for the Detention of Persons in Special Institutions and Special Premises Ensuring Temporary Isolation from Society” to the official or body in charge of the criminal case in connection with which the complaint is submitted.
4\. Fundamental provisions concerning the proper application of the rules of Part 2 of Article 101 of the CPC are also contained in Regulatory Resolution No. 7 of the Supreme Court dated 28 December 2009 “On the Application of Criminal and Criminal Procedure Legislation on Issues of Respect for Personal Liberty and Human Dignity, Combating Torture, Violence, and Other Cruel or Degrading Forms of Treatment and Punishment”. In particular, a complaint concerning the use of torture, violence, or other cruel or degrading treatment shall be registered by the prosecutor in the Unified Register of Pre-Trial Investigations, and the materials shall be forwarded for the conduct of a pre-trial investigation (paragraph 11). In cases where a complaint concerning the use of torture, violence, or other cruel or degrading treatment is made during a court hearing, the court is obliged to take the measures provided for by law to ensure its immediate consideration. If verification of the complaint requires the implementation of measures falling outside the court's competence or pre-trial proceedings, the court shall issue a ruling assigning the prosecutor to conduct the relevant verification and specifying the deadline for submitting the verification materials to the court. Conducting the verification and holding persons who committed unlawful acts liable shall not entail the suspension of proceedings in the case. The court is obliged to examine the materials relating to the verification of complaints and the procedural decisions adopted by the prosecutor in connection with them during the court hearing and, where grounds exist, resolve the issue of declaring evidence inadmissible. The materials relating to the verification of complaints and the procedural decisions adopted in connection with them shall be attached to the case (paragraph 13).
Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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