Commentary on Article 106 of the Criminal Procedure Code of the Republic of Kazakhstan. Judicial Procedure for Considering Complaints Against Actions (Inaction) and Decisions of the Prosecutor and Criminal Prosecution Authorities

1. A person whose rights and freedoms are directly affected by an action (inaction) or decision of the prosecutor, investigative authorities or bodies of inquiry shall have the right to file a complaint with the court against the refusal to accept a report of a criminal offence, as well as against violations of the law when commencing a pre-trial investigation, suspending the investigation period, terminating a criminal case, compulsory placement in a medical organization for the purpose of conducting a forensic medical examination, conducting a search and (or) seizure, performing other actions (inaction), and adopting decisions. When considering a complaint in accordance with this Article, the court shall not prejudge issues which, in accordance with this Code, may be the subject of judicial consideration when resolving the criminal case on its merits.

2. When considering a complaint, the court, without assessing the evidence available in the case file, shall determine whether the inquiry officer, investigator or prosecutor has examined and taken into account all the circumstances referred to by the applicant in the complaint. At the same time, without making any conclusions as to whether guilt has or has not been proven, or whether the collected evidence is admissible or inadmissible, the court shall verify the existence or absence of substantive legal and procedural grounds for adopting a decision in the case.

3. The limits of judicial review shall be restricted to determining whether the requirements of the law were observed when performing the actions (inaction) and adopting the decisions specified in Part One of this Article.

4. Filing a complaint shall not suspend the performance of the challenged action or the execution of the challenged decision.

5. A complaint may be filed with the district court at the location of the body conducting the criminal proceedings within fifteen days from the date on which the person became acquainted with the decision with which they disagree, or within the same period after receiving notification from the prosecutor refusing to grant the complaint submitted to the prosecutor, or from the date of expiry of fifteen days after the complaint was submitted to the prosecutor, if no response has been received.

6. The complaint shall be considered by a single investigating judge without holding a court hearing within three days. If it is necessary to examine circumstances relevant to the adoption of a lawful and well-founded decision, the investigating judge shall consider the complaint within ten days in a closed court hearing with the participation of the relevant persons and the prosecutor, whose failure to appear shall not prevent consideration of the complaint. By order of the investigating judge, the court hearing may be conducted via video communication. Minutes shall be kept during the court hearing. Where necessary, the investigating judge shall have the right to request additional materials, summon and question the relevant persons. Officials whose actions (inaction) and decisions are being challenged shall, at the request of the court, be obliged to submit to the court, within three days, the materials that served as the basis for performing such actions (inaction) and adopting such decisions.

7. When holding a court hearing, the investigating judge shall announce which complaint is subject to consideration, after which the applicant, if participating in the court hearing, shall substantiate the complaint, followed by the hearing of the other persons who have appeared and who shall have the right to submit evidence to the court. The burden of proving the legality of the challenged action (inaction) or decision shall rest with the person who performed or adopted it.

8. Based on the results of consideration of the complaint, the investigating judge shall issue the relevant rulings:

1) on the cancellation of a procedural decision found to be unlawful;

2) on declaring the action (inaction) of the relevant official unlawful or unfounded and imposing on that official the obligation to eliminate the violation committed;

3) on imposing on the prosecutor the obligation to eliminate the violation of the rights and legitimate interests of a citizen or organization;

4) on dismissing the complaint.

The introduction into the Criminal Procedure Code of a judicial procedure for appealing against the actions or decisions of the prosecutor and criminal prosecution authorities was primarily prompted by the legislator's intention to ensure compliance with the requirements of the principles of adversarial proceedings and equality of the parties at the pre-trial stages of criminal proceedings. Such a right of the court cannot be regarded as replacing the heads of investigative bodies and the prosecutor at the pre-trial stages of criminal proceedings.

Within the meaning of Part 1 of Article 106 of the CPC, virtually all procedural actions and procedural decisions of the criminal prosecution authority and the prosecutor which, in the opinion of a participant in the proceedings, are unlawful may be challenged in court. A participant in the proceedings shall have the right to apply directly to the court with a complaint, bypassing the prosecutor. This is consistent with the principles of criminal procedure and individual rights in this area (see paragraph 2 of Article 13 of the Constitution, Articles 10, 12, 21, 23, 24, 26, 27 and 31 of the CPC). Undoubtedly, the opportunities available to a participant in the proceedings increase if, before appealing, for example, against the decisions and actions of an inquiry officer or investigator, the participant first applies to the prosecutor supervising the case, the head of the body of inquiry or the head of the investigative department, whose powers, provided that the complaint is properly considered, are entirely sufficient to correct an investigative error in the case. In any event, the provisions of Article 105 of the CPC guide participants in pre-trial criminal proceedings towards such a procedure for considering complaints against the actions and decisions of the criminal prosecution authority and the prosecutor.

3. By permitting the possibility of judicial appeal against the actions and decisions of criminal prosecution authorities and the prosecutor, Part 1 of Article 106 of the CPC primarily identifies a group of procedural actions and decisions that substantially affect the constitutional rights of an individual in criminal proceedings: refusal to accept a report of a criminal offence, as well as violations of the law when commencing a pre-trial investigation, suspension of the investigation period, termination of a criminal case, compulsory placement in a medical organization for the purpose of conducting a forensic medical examination, and conducting a search and (or) seizure.

Other actions or decisions, as objects of appeal, are not specified in the provisions of Part 1 of Article 106 of the CPC.

All other actions or decisions should presumably be understood as actions or decisions that deprive participants in the proceedings of rights guaranteed by law or restrict such rights, or violate other rules of criminal procedure during a pre-trial investigation or judicial examination of a case, including those that have affected or could have affected the relevance, admissibility, reliability and sufficiency of the factual data obtained in the case.

The possibility of appealing in court against all actions and decisions of the criminal prosecution authority and the prosecutor at the stage of pre-trial investigation of a criminal case (and not only those listed in Part 1 of Article 106 of the CPC) was confirmed by the Constitutional Council in its Resolution No. 1 of January 24, 2007, “On the Review of the Constitutionality of Part One of Article 109 of the Criminal Procedure Code of the Republic of Kazakhstan (Part 1 of Article 106 of the CPC of 2014) upon the Application of the West Kazakhstan Regional Court” (descriptive and reasoning section, paragraphs 1 and 3).

The provisions of Parts 1 and 3 of Article 106 of the CPC contain fundamental reservations which correspond to similar restrictions on the exercise of the powers of an investigating judge provided for in Part 4 of Article 56 of the CPC. The scope of judicial review of a complaint shall not concern the principal issues of the case specified in paragraphs 1–4 of Part 2 of Article 53 of the CPC, which do not fall within the competence of the investigating judge. The investigating judge shall also not replace the investigator, inquiry officer, prosecutor or heads of criminal prosecution authorities. The review shall be limited to examining compliance with the procedural form for performing actions or adopting decisions in the case, for which purpose the law grants the investigating judge certain powers (Part 3 of Article 56 of the CPC).

Unlike the provisions of Article 103 of the CPC, the provisions of Part 4 of Article 106 of the CPC do not permit the suspension of the performance of the challenged action or the execution of the challenged decision, since this is обусловлено by the specific features of the evidentiary process and pre-trial investigation of a criminal case.

Part 5 of Article 106 of the CPC establishes a uniform period of fifteen days for filing a complaint with the investigating judge: from the date on which the person became acquainted with the decision with which they disagree; after receiving notification from the prosecutor refusing to grant the complaint; or after the expiry of this period, if no response to the complaint has been received from the prosecutor.

Part 6 of Article 106 of the CPC regulates the procedure for considering a complaint by a single investigating judge within three days or, where it is necessary to examine circumstances that make it possible to adopt a lawful and well-founded decision in the case, within ten days in a closed court hearing. This gives rise to objective differences. During a closed court hearing, participants in the proceedings and the prosecutor may be summoned and questioned, and additional materials underlying the challenged actions and decisions may be requested and submitted within three days. Keeping minutes in accordance with the rules of Article 347 of the CPC is mandatory during a closed court hearing.

Since this is not a full-fledged trial in the meaning of that term, the court hearing is conducted in an abbreviated form and includes a sequence of actions performed by the investigating judge, among which the following are mandatory: announcing the complaint subject to consideration; the applicant substantiating the complaint, if participating in the court hearing; and hearing the other persons and the prosecutor who have appeared at the hearing. Hearing the prosecutor or another official of the criminal prosecution authority (an inquiry officer, investigator or their superiors) is connected with the provisions of Part 7 of Article 106 of the CPC, according to which the burden of proving the legality of the challenged action (inaction) or decision rests with the person who performed or adopted it. Based on the provisions of Article 106 of the CPC, such persons may be the above-mentioned officials of criminal prosecution authorities and the prosecutor.

The investigating judge may adopt four types of decisions in the form of a ruling following consideration of the complaint, and these decisions concern both decisions and actions, imposing on the persons who performed or adopted them, where they are found to be unlawful or unfounded, the obligation to eliminate violations of individual rights. However, the decisions of the investigating judge become final and acquire legal force if they have not been appealed or challenged by a protest before the regional or equivalent court. This is provided for by the provisions of Article 107 of the CPC.

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan, authored 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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