Commentary on Article 105. Procedure for Considering Complaints Against Actions (Inaction) and Decisions of Persons Conducting Pre-Trial Investigations, the Head of the Investigation Department, the Head of the Inquiry Body, and the Prosecutor, Filed by Persons Protecting Their Own Rights and Interests or Those They Represent, of the Criminal Procedure Code of the Republic of Kazakhstan
1. Complaints filed by persons protecting their own rights and interests or those they represent against actions (inaction) and decisions of persons conducting pre-trial investigations shall be submitted to the Head of the Investigation Department, the Head of the Inquiry Body, the prosecutor, or the court.
A person conducting a pre-trial investigation who receives a complaint concerning their own actions (inaction) or decisions shall immediately forward the complaint, together with their explanations, to the Head of the Investigation Department or the Head of the Inquiry Body.
Complaints against actions (inaction) and decisions of the Head of the Investigation Department or the Head of the Inquiry Body shall be submitted to the prosecutor. The Head of the Investigation Department or the Head of the Inquiry Body who receives a complaint concerning their own actions (inaction) or decisions shall immediately forward the complaint, together with their explanations, to the appropriate prosecutor.
Complaints against actions (inaction) and decisions of the prosecutor shall be submitted to a higher-ranking prosecutor. Complaints concerning the matters specified in Article 106 of this Code shall be submitted to the court and considered in accordance with the procedure provided for in that Article.
1-1. Refusal to accept and register a complaint shall not be permitted and shall entail liability established by law.
A complaint filed by a person protecting their own rights and interests or those they represent in relation to the substance of the criminal case under investigation, as well as the response thereto and the decision adopted following consideration of the complaint, shall be attached to the materials of the criminal case.
2. The prosecutor, the Head of the Investigation Department, and the Head of the Inquiry Body shall be obliged to consider the complaint and notify the person who filed it of the decision adopted within seven days from the date of its receipt. Complaints concerning violations of the law in connection with detention, recognition as a suspect, classification of the suspect's act, and removal from office shall be considered within three days from the date of their receipt. In exceptional cases, where additional materials must be requested or other measures must be taken in order to verify the complaint, consideration of the complaint shall be permitted within a period of up to fifteen days, provided that the person who filed the complaint is notified thereof.
3. Following consideration of a complaint, the Head of the Investigation Department or the Head of the Inquiry Body shall have the right to petition the prosecutor to revoke or amend the contested decision, issue instructions binding on the person conducting the pre-trial investigation, and give assignments to the inquiry body.
As a result of consideration of the complaint, a decision may be adopted to satisfy the complaint in whole or in part, with the revocation or amendment of the contested decision, or to refuse to satisfy the complaint.
At the same time, a previously issued decision may not be amended if such amendment would worsen the position of the person who filed the complaint or the person in whose interests the complaint was filed.
4. The person who filed the complaint shall be notified of the decision adopted on the complaint and of the further procedure for appealing it. A refusal to satisfy the complaint must be reasoned.
Note. Article 105 was revised by the Law of the Republic of Kazakhstan dated July 11, 2017 No. 91-VI (shall enter into force upon the expiration of ten calendar days after the date of its first official publication); as amended by the Law of the Republic of Kazakhstan dated December 27, 2019 No. 292-VI (see Article 2 for the procedure for its entry into force).
1. As follows from its title, the commented Article 105 of the Criminal Procedure Code regulates the procedure for appealing against the actions and decisions of officials of criminal prosecution bodies, their heads, and the prosecutor, as well as the sequence for the immediate forwarding of a complaint when it is received by the relevant law enforcement officials. Such complaints, in accordance with this requirement of criminal procedure law, must be immediately forwarded to the appropriate recipient for consideration on their merits (Part 1 of Article 105 of the Criminal Procedure Code). At the same time, all participants in criminal proceedings whose legal capacity is regulated by Chapter 9 of the Criminal Procedure Code shall have the right to file a complaint.
Of fundamental importance is the fact that the complaint itself, the response to the complaint, and the decision adopted following its consideration must be attached to the criminal case. In this way, continuity in all work carried out on the criminal case and completeness of its materials are ensured (Part 1-1 of Article 105 of the Criminal Procedure Code).
Every complaint, and this is a direct requirement of Part 1-1 of Article 105 of the Criminal Procedure Code, is subject to mandatory acceptance and registration. Otherwise, a refusal to accept and register a complaint may become the subject of a prosecutor's submission (Subparagraph 1 of Paragraph 1 of Article 27 of the Law of the Republic of Kazakhstan "On the Prosecutor's Office", Subparagraph 20 of Part 1 of Article 193 of the Criminal Procedure Code) or a separate ruling issued by an investigating judge (Subparagraph 1 of Part 2 of Article 55 of the Criminal Procedure Code) addressed to the management of the criminal prosecution body. Participants in pre-trial criminal proceedings may approach the management of the relevant body in this regard. They are also entitled to apply to the management of the criminal prosecution body concerning this matter. In such a case, disciplinary measures shall be applied to the official of the criminal prosecution body responsible for this, unless their actions contain elements of an official offence punishable under criminal law.
2. The submission of complaints to the prosecutor at the pre-trial investigation stage, within the meaning of Part 2 of Article 105 of the Criminal Procedure Code, is обусловлено by the fact that it is precisely the prosecutor who is entitled, at this stage, to revoke unlawful decisions of an investigator and an inquiry officer by their resolutions adopted following consideration of a complaint and to recognize the actions of the inquiry officer and investigator as unlawful (Subparagraph 10 of Part 1 and Subparagraph 2 of Part 2 of Article 193 of the Criminal Procedure Code). The Head of the Investigation Department and the Head of the Inquiry Body are not vested by law with the authority to revoke unlawful decisions of an investigator or an inquiry officer. They may do so only through the prosecutor by submitting petitions to revoke or amend the contested decisions (Articles 59 and 62, Part 3 of Article 105 of the Criminal Procedure Code). If the complainant's complaint is not satisfied by a lower-ranking prosecutor, the complainant shall have the right to appeal to a higher-ranking prosecutor referred to in Part 1 of Article 105 of the Criminal Procedure Code. The list of higher-ranking prosecutors is set out in Part 1 of Article 58 of the Criminal Procedure Code.
3. An official shall have the right to discontinue the contested action or revoke the contested decision themselves (Part 3 of Article 105 of the Criminal Procedure Code). For example, having agreed with the arguments set out in the complaint, an investigator may revoke a preventive measure imposed by them (except for detention, house arrest, and bail), for instance, replacing a written undertaking not to leave the place of residence and to maintain proper conduct with an obligation to appear (which is not a preventive measure); resume preliminary investigation proceedings, and so forth.
4. Part 2 of Article 105 of the Criminal Procedure Code establishes three time limits for the consideration of a complaint filed by a participant in criminal proceedings by the prosecutor, the Head of the Investigation Department, or the Head of the Inquiry Body, and for sending notification of the decision adopted to the person who filed the complaint within the same time limit: within seven days from the date of receipt; within three days from the date of receipt; and within a period of up to fifteen days from the date of receipt.
The period of up to seven days is the general time limit within which the above-mentioned officials are required to consider all complaints and provide a response. The period of up to three days applies to complaints concerning violations of the law in connection with detention, recognition as a suspect, classification of the suspect's act, and removal from office. The period of up to fifteen days is обусловлено by exceptional circumstances requiring a systematic and thorough examination of the applicant's arguments or the taking of other measures. This period may also be applied where it is necessary to extend the time limit for considering a complaint beyond seven days or beyond three days.
In general, the aforementioned time limits shall not be extended unless there are grounds for doing so. The period of up to fifteen days is the maximum time limit.
5. A resolution issued by the prosecutor, the head of the criminal prosecution body, or the court (on matters specified in Article 106 of the Criminal Procedure Code) refusing to satisfy a complaint or satisfying it in whole or in part must be reasoned and communicated to the complainant in an acceptable and comprehensible form, and must also be attached to the materials of the criminal case. This is required under the provisions of the Criminal Procedure Code, since this document constitutes part of the investigation and is necessary for taking appropriate action in response to the complaint at other stages of the criminal proceedings, as well as for assessing the legality and validity of the entire proceedings in the case and, in particular, of the evidentiary process (Parts 3–4 of Article 105 of the Criminal Procedure Code).
Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan, by Marat Chekishuly Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
Constitution Law Code Regulatory Act Decree Order Decision Resolution Lawyer Almaty Lawyer Legal services Legal Consultation Civil Criminal Administrative cases and disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Program Charter Statute Charter Article Commentary Resolution Regulation Protocol Draft Program Rules Addresses
