Commentary on Article 107. Appealing Against Rulings and Sanctions of the Investigating Judge and Submission of Applications by the Prosecutor under the Criminal Procedure Code of the Republic of Kazakhstan

Note. The heading of Article 107 was amended by Law of the Republic of Kazakhstan dated July 11, 2017, No. 91-VI (shall enter into force ten calendar days after the date of its first official publication); Note. The heading of Article 107 was amended by Law of the Republic of Kazakhstan dated December 27, 2019, No. 292-VI (for the procedure for its entry into force, see Article 2).

1. During pre-trial investigation, the suspect, their defense counsel, legal representative, the victim, their legal representative, representative, and a person whose rights and freedoms are directly affected by an act of the investigating judge shall have the right to appeal, and the prosecutor shall have the right to submit an application against the following rulings and sanctions of the investigating judge:

1) on authorizing a preventive measure in the form of detention of a suspect, extradition arrest, house arrest, bail, or extending the period of detention or house arrest;

2) on refusing to authorize detention of a suspect, extradition arrest, house arrest, bail, or refusing to extend the period of detention or house arrest;

3) on revoking or refusing to revoke an authorized preventive measure;

4) on imposing or refusing to impose a seizure of property;

5) on exhumation or refusal thereof;

6) on declaring an international search or refusing to do so;

7) on the compulsory placement of a person in a medical organization for conducting forensic medical and (or) forensic psychiatric examinations, or refusal thereof;

8) on converting the subject of bail into state revenue or refusing to do so;

9) concerning the consideration of complaints against actions (inaction) and decisions of the prosecutor and criminal prosecution authorities;

10) on authorizing or refusing to authorize an inspection, search, seizure, personal search, compulsory examination, or compulsory collection of samples.

1-1. During pre-trial investigation, the prosecutor shall have the right to submit an application against the following rulings and sanctions of the investigating judge:

1) on authorizing or refusing to authorize covert investigative actions;

2) on extending or refusing to extend the periods of covert investigative actions;

3) on extending or refusing to extend the periods for notifying a person of covert investigative actions conducted against them;

4) on granting consent to the pre-trial investigation authority not to notify a person of covert investigative actions conducted against them, or refusing to grant such consent to the pre-trial investigation authority;

5) on refusing to grant the prosecutor's application to terminate covert investigative actions;

6) on terminating covert investigative actions conducted in accordance with the procedure established by Article 235 of this Code and on the inadmissibility of using the results obtained as evidence.

2. A ruling of the investigating judge issued in accordance with the provisions of this Article may be appealed by the persons specified in Part One of this Article within three days from the moment of its announcement, and the prosecutor may submit an application against it to the regional court or a court equated thereto through the court whose investigating judge issued the ruling. A time limit missed for a valid reason may be restored, upon the application of an interested person, in accordance with Article 50 of this Code.

3. Filing a complaint or submitting an application by the prosecutor shall not suspend the execution of the decisions specified in the ruling concerning the matters referred to in paragraphs 8) and 10) of Part One of Article 55 of this Code and paragraphs 1), 2), 7) and 10) of Part One of this Article.

4. Upon expiry of the time limit for appeal or submission of an application by the prosecutor, the materials, together with the complaint or the prosecutor's application, shall be forwarded to the regional court or a court equated thereto, with notification thereof to the applicant, the person whose actions and decisions are being appealed, and the prosecutor. The decision of the regional court or a court equated thereto, adopted following consideration of the complaint or the prosecutor's application, shall be final.

5. The judge of the regional court or a court equated thereto shall, in compliance with the rules and time limits provided for in Parts Two and Three of this Article, verify the legality and validity of the ruling and sanction of the investigating judge no later than three days from the date of receipt of the complaint or the prosecutor's application by the court.

6. The ruling of the judge of the regional court or a court equated thereto, issued following consideration of the complaint or the prosecutor's application, shall enter into legal force from the moment of its announcement.

The prosecutor and the suspect's defense counsel shall participate in the closed court hearing. The suspect, their legal representative, the victim, their legal representative, representative, and other persons whose rights and interests are affected by the contested decision may also participate in the hearing. Their failure to appear, provided that they were duly notified of the time of consideration of the complaint or the prosecutor's application, shall not prevent judicial consideration thereof.

In the case provided for in paragraph 10) of Part One of this Article, the list of persons participating in the closed court hearing shall be determined by the judge considering the complaint or the prosecutor's application.

Consideration of the matters provided for in Part 1-1 of this Article shall be carried out in accordance with Article 234 of this Code.

7. Having heard the arguments of the parties and examined the submitted materials, the court shall issue one of the following reasoned rulings:

1) to leave the ruling of the investigating judge unchanged;

2) to amend the ruling of the investigating judge;

3) to revoke the ruling of the investigating judge and issue a new ruling.

8. A copy of the court ruling shall be sent to the pre-trial investigation authority, as well as to the prosecutor, the suspect, the defense counsel, and the representative of the administration of the place of detention, and shall be subject to immediate execution.

9. An appeal against a decision on the extradition of a person accused of committing a crime or convicted in the territory of a foreign state, and judicial verification of its legality and validity, shall be carried out in accordance with the procedure provided for in Article 592 of this Code.

Note. Amendments to Article 107 were introduced by the Laws of the Republic of Kazakhstan dated October 31, 2015, No. 378-V (shall enter into force on January 1, 2016); dated July 11, 2017, No. 91-VI (shall enter into force ten calendar days after the date of its first official publication); dated December 21, 2017, No. 118-VI (for the procedure for its entry into force, see Article 2); dated July 12, 2018, No. 180-VI (shall enter into force ten calendar days after the date of its first official publication); and dated December 27, 2019, No. 292-VI (for the procedure for its entry into force, see Article 2).

The provisions of Article 107 of the Criminal Procedure Code regulate matters concerning appeals or the submission of applications by the prosecutor against all rulings issued by the investigating judge within the scope of the powers provided for in Article 55 of the Criminal Procedure Code.

In this regard, Part 1 of Article 107 of the Criminal Procedure Code establishes an exhaustive list of the rulings of the investigating judge and the persons entitled to appeal them or submit an application against them: the suspect, their defense counsel, legal representative, the victim, their legal representative, representative, and the prosecutor.

3. Knowing the powers of the investigating judge during pre-trial investigation, it is not difficult to assume that the subject of an appeal or protest includes all rulings related to the assessment of actions or decisions of the authorities conducting criminal proceedings. In this regard, the provisions of Part 1 of Article 107 of the Criminal Procedure Code regulate an exhaustive list of decisions of the investigating judge.

The higher judicial instance entitled to examine the legality and validity of the decisions of the investigating judge is the regional court or a court equated thereto. It is precisely this court that is entrusted with considering complaints or applications submitted by prosecutors against the rulings of the investigating judge and issuing a ruling that is final and is not subject to further appeal or protest (Parts 2 and 4 of Article 107 of the Criminal Procedure Code).

The law establishes a short time limit for filing a complaint or an application by the prosecutor through the relevant court, whose investigating judge issued the ruling: within three days from the moment of its announcement. Upon the application of an interested person, this time limit, if missed for a valid reason, may be restored by a ruling of the investigating judge. In this case, the time limit is restored for the person who missed it, but not for other persons, unless otherwise provided for in the relevant decision of the authority conducting the criminal proceedings (Part 2 of Article 50, Part 2 of Article 107 of the Criminal Procedure Code).

Part 3 of Article 107 of the Criminal Procedure Code establishes a list of rulings of the investigating judge whose execution shall not be suspended notwithstanding the filing of a complaint or submission of an application by the prosecutor: on authorizing the seizure of property; on establishing the fact of mental illness and, in connection therewith, transferring a person against whom detention was previously applied as a preventive measure to a special medical organization providing psychiatric care and adapted for keeping patients under conditions of strict isolation; on authorizing a preventive measure in the form of detention of a suspect, extradition arrest, house arrest, bail, or extending the period of detention or house arrest; on refusing to authorize detention of a suspect, extradition arrest, house arrest, bail, or refusing to extend the period of detention or house arrest; on the compulsory placement of a person in a medical organization for conducting forensic medical and (or) forensic psychiatric examinations, or refusal thereof; on authorizing or refusing to authorize an inspection, search, seizure, personal search, compulsory examination, or compulsory collection of samples.

The procedural form for considering a complaint by a participant in criminal proceedings or an application by the prosecutor is regulated by Parts 6–7 of Article 107 of the Criminal Procedure Code. The complaint or application shall be considered by a single judge in a closed court hearing (as required by Part 6 of Article 107 of the Criminal Procedure Code) no later than three days from the date of its receipt by the regional court. In principle, the list of participants in such a hearing is not restricted by law; however, the participation of the prosecutor and the suspect's defense counsel is mandatory in all cases. The only exception is the consideration of matters provided for in paragraph 10 of Part 1 of Article 107 of the Criminal Procedure Code, in which case the judge may substantially restrict this list.

A closed court hearing includes: hearing the parties, examining the materials, and issuing a decision. Among the other fundamental rules governing court hearings, the law identifies the following: mandatory participation of the prosecutor and defense counsel; participation of other persons whose failure to appear, provided they have been duly notified of the date of consideration of the complaint or application, does not prevent its consideration; and the absence of a requirement to keep minutes of the court hearing.

The provisions of Part 1-1 and the third paragraph of Part 6 of Article 107 of the Criminal Procedure Code specifically stipulate the types of decisions of the investigating judge (ruling, sanction) against which the prosecutor is entitled to submit an application to the regional court for their review. These decisions concern the activities of criminal prosecution authorities in the field of covert investigative actions. They may also be reviewed by the investigating judge himself or herself upon the application of the procedural prosecutor or prosecutor in accordance with Article 234 of the Criminal Procedure Code.

As established by Part 7 of Article 107 of the Criminal Procedure Code, the ruling of a regional court judge may be of three types and must be reasoned. From the moment of its announcement, it enters into legal force and is immediately executed by the relevant recipients to whom a copy thereof is sent (Parts 5 and 8 of Article 107 of the Criminal Procedure Code).

The law specifically stipulates that a copy of the ruling of the regional court judge issued following consideration of the rulings of the investigating judge on matters specified in paragraph 10 of Part 1 and Part 1-1 of Article 107 of the Criminal Procedure Code shall also be sent to the prosecutor. This is due to the fact that only the prosecutor is entitled to submit applications to the regional court against all rulings of the investigating judge relating to legal relations arising in the course of covert investigative actions, including those issued by the investigating judge on the basis of rulings of inquiry officers and investigators seeking authorization to conduct covert investigative actions, as well as investigative actions specified in paragraph 10 of Part 1 and Part 1-1 of Article 107 of the Criminal Procedure Code (paragraph 8-1 of Part 2 of Article 59, paragraph 6 of Part 4 of Article 62, Part 8 of Article 107 of the Criminal Procedure Code).

A judge's ruling to leave the ruling of the investigating judge unchanged (paragraph 1 of Part 7 of Article 107 of the Criminal Procedure Code) must be distinguished by a high degree of reasoning.

A ruling of the investigating judge may be amended, as established by the provision of paragraph 2 of Part 7 of Article 107 of the Criminal Procedure Code. For example, the judge establishes different periods of detention of a person, applies house arrest or bail instead of detention, and so on. Revocation of the ruling of the investigating judge and issuance of a new ruling (paragraph 3 of Part 7 of Article 107 of the Criminal Procedure Code) means the adoption of a ruling by which the regional court judge effectively expresses disagreement with the ruling of the investigating judge. For example, the judge authorizes the detention of a suspect despite the investigating judge's refusal to grant such authorization, and so on.

Part 9 of Article 107 of the Criminal Procedure Code is of a referral nature to Articles 589 and 592 of the Criminal Procedure Code, which provide a detailed description of the procedural form for appealing to the regional court against a ruling of the investigating judge on the application of extradition arrest, or against a ruling of the Prosecutor General or their deputies on the extradition of a person accused of committing a crime or convicted in the territory of a foreign state.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan, 2020 edition, by Marat Chekishovich 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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