Commentary on Article 104. General Procedure for Considering Complaints of the Criminal Procedure Code of the Republic of Kazakhstan
- 1. It is prohibited to assign the consideration of a complaint to the inquiry officer, investigator, prosecutor or judge whose actions are being appealed, as well as to the official who approved the contested decision.
- 2. When considering a complaint, the head of the investigative department, the head of the body of inquiry, the prosecutor or the judge shall be obliged to examine all the arguments set out therein and, where necessary, request additional materials and obtain written explanations from the relevant officials, individuals or legal entities concerning the actions and decisions being appealed.
- 3. The head of the investigative department, the head of the body of inquiry, the prosecutor or the judge considering the complaint shall, within the scope of their powers, immediately take measures to restore the violated rights and legitimate interests of participants in criminal proceedings, as well as other individuals or legal entities.
- 4. If the unlawful actions or decisions being appealed have caused moral, physical or property damage to an individual or legal entity, that person or entity shall be informed of the right to compensation for or elimination of the damage and of the procedure for exercising this right as provided for in Chapter 4 of this Code.
- Footnote. Article 104 was amended by Law of the Republic of Kazakhstan No. 292-VI dated 27 December 2019 (for the procedure for its entry into force, see Article 2).
- The provisions of Part 1 of Article 104 of the CPC are addressed to persons whose actions are being appealed, heads of pre-trial investigation bodies, higher-ranking prosecutors or courts, and are aimed at maintaining the necessary level of objectivity, legality and substantiation in the consideration of complaints.
The law does not restrict the relevant head of a pre-trial investigation body, prosecutor or judge in the methods used to verify the arguments of a complaint (Part 2 of Article 104 of the CPC). The prosecutor's powers in this regard are governed by the provisions of the CPC and the Law “On the Prosecutor's Office” (Articles 6—7). An investigating judge is vested with a separate set of powers concerning the examination of complaints (Articles 55—56 of the CPC). The methods of examining complaints differ in judicial instances when a case is considered on its merits, as well as under appellate and cassation procedures.
Following consideration of a complaint, the head of a pre-trial investigation body, in accordance with the procedure established by the CPC, as well as the prosecutor, shall have the right to annul an unlawful procedural decision of the preliminary investigation body or terminate the contested action and take appropriate measures to restore the lawful rights and interests of individuals and legal entities, including compensation for the damage caused to them (see the commentary on Articles 37—42, 59, 62, and subparagraphs 10, 11 and 12 of Part 1 of Article 193 of the CPC).
At the pre-trial stages, if an investigating judge finds a complaint to be well-founded, the judge shall issue a ruling annulling the procedural decision found to be unlawful or obliging the prosecutor, by means of a ruling, to eliminate the violation of the rights and legitimate interests of a citizen or organization (paragraph 1 of Part 2 and Part 3 of Article 55 of the CPC).
At the judicial stages, in principle, it is excluded that consideration of a complaint (under the appellate or cassation procedure) be assigned to the judge whose decisions and actions are being appealed, by virtue of the legal requirements concerning the need to observe impartiality during court proceedings (Article 87 of the CPC).
The actions and decisions of bodies conducting criminal proceedings that are being appealed may be associated with the infliction of some form of damage on a participant in criminal proceedings (Part 4 of Article 104 of the CPC). The procedure for compensation for or elimination of damage caused by unlawful actions and decisions of bodies conducting criminal proceedings has been considered above and is governed by the provisions of Articles 37—42 of the CPC.
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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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