Commentary on Article 128. Grounds for Detention of the Criminal Procedure Code of the Republic of Kazakhstan

1. The detention of a person suspected of committing a criminal offence is a measure of procedural coercion applied by the criminal prosecution authority for the purpose of preventing a crime and resolving the issue of applying a preventive measure in the form of detention in respect of that person, or ensuring proceedings in respect of a criminal misdemeanour where there are grounds to believe that the person may abscond or commit a more serious act.

2. An official of the criminal prosecution authority shall have the right to detain a person suspected of committing a crime punishable by imprisonment where one of the following grounds exists:

1) where the person is caught in the act of committing a crime or immediately after its commission;

2) where eyewitnesses (witnesses), including victims, directly identify the person as having committed the crime, or detain that person in accordance with the procedure provided for in Article 130 of this Code;

3) where obvious traces of a crime are found on the person or their clothing, among their belongings, or in their residence;

4) where materials obtained in accordance with the law through operational-search activities, counterintelligence activities and (or) covert investigative actions concerning the person contain reliable information about a crime committed or being prepared by that person.

3. Persons suspected of committing a crime shall be detained after the necessary urgent investigative actions have been carried out, except in the case of the ground provided for in paragraph 1) of part two of this Article.

4. Where there is other information giving grounds to suspect a person of committing a criminal offence, that person may be detained only if they have attempted to abscond, or if they have no permanent place of residence, or the identity of the suspect has not been established, or where a motion for authorization of a preventive measure in the form of detention has been submitted to the court.

5. The period of detention of a person suspected of committing a criminal offence shall be calculated from the moment of actual detention and may not exceed seventy-two hours.

Footnote. Article 128 was amended by the Law of the Republic of Kazakhstan dated 28 December 2016 No. 36-VI (shall enter into force upon the expiration of two months after the date of its first official publication).

Without a court sanction, — paragraph 2 of Article 16 of the Constitution states, — a person may be subjected to detention for a period not exceeding seventy-two hours. The period of detention of a person suspected of committing a criminal offence shall be calculated from the moment of actual detention and may not exceed seventy-two hours, — this is how part 5 of Article 128 of the CPC reproduces and specifies the constitutional provision.

The above provisions define the nature of the detention of a person as a suspect: it is a short-term deprivation of the liberty of an individual and citizen for the purpose of resolving the tasks and objectives of criminal proceedings (preventing a crime and, where grounds exist, resolving the issue of applying a preventive measure in the form of detention to the person detained).

Consequently, detaining a person by obtaining various kinds of approvals and sanctions does not correspond to the role and purpose of this procedural action. According to Article 196 of the CPC, the detention of a suspect is an urgent investigative action and generally takes place immediately after the commencement of, or during, the pre-trial investigation of a criminal case.

In connection with the introduction of a new type of criminal offence — a criminal misdemeanour — detention is also permitted in respect of persons who have committed such acts, provided that: a) the relevant evidence exists; b) such evidence indicates the presence of the following two conditions: 1) the person who committed the criminal misdemeanour may abscond, or 2) the person who committed the criminal misdemeanour may commit a more serious act.

3. The provisions of parts 2 and 4 of Article 128 of the CPC regulate one principal condition and five grounds for detaining a person as a suspect.

4. The most important condition for detaining a suspect is that the person has committed a crime, irrespective of its category (Article 11 of the Criminal Code, “Categories of Crimes”), provided that the punishment prescribed for it is imprisonment. In this regard, even the length of the term of imprisonment is irrelevant. Therefore, before detaining a person, it is necessary to examine in advance the sanctions of the provisions of the Special Part of the Criminal Code prescribed for the commission of the particular crime and act accordingly (detain or not detain the person).

5. However, this would be a simple solution to a rather complex issue (after all, we are restricting the liberty of an individual and citizen). The provisions of part 2 of Article 128 of the CPC establish four additional grounds for ensuring the legality and justification of a suspect's detention. The four grounds may be applied cumulatively or individually, but only in connection with the condition considered above. Let us examine them.

Paragraph 1 of part 2 of Article 128 of the CPC addresses two situations involving detention.

The first situation. A person is caught in the very act of committing, for example, murder, or in the immediate preparation for or direct attempt to commit that crime.

The second situation. A person is detained immediately after committing, for example, robbery, during search operations. Certainly, the application of this ground may be based on official reasons registered in the Unified Register of Pre-Trial Investigations, operational-search information, or actions taken by private citizens.

Paragraph 2 of part 2 of Article 128 of the CPC provides for cases where eyewitnesses (witnesses), including victims, that is, those who personally observed or came into contact with the perpetrator of the crime, identify a specific suspect during questioning, or where this may result from the presentation of the suspect for identification among other persons. The detention of a suspect who committed a crime in the presence of any citizen may be regarded as an independent case of this ground, where that citizen detains the suspect on their own initiative in order to assist the victim or on the basis of official announcements concerning the suspect's search.

The wording of this ground also makes it clear that, apart from the initiative of ordinary citizens to detain a person outside the procedural framework, it applies only within the framework of a criminal case in which witnesses and victims of the crime are officially involved.

The ground regulated by the provisions of paragraph 3 of part 2 of Article 128 of the CPC is presented quite broadly. The phrase “obvious traces of a crime” means the same as the expressions: visible, evident, apparent, noticeable, distinct, clear, demonstrable, open, unconcealed, striking or immediately noticeable evidence that a person has committed a crime.

What does the legislator mean by “obvious traces of a crime on the person's face” (paragraph 3 of part 2 of Article 128 of the CPC)? Certainly, this refers to the human body, on which traces of the committed crime may remain. They may be identified by examining the person or through a personal search. Incidentally, this is among the purposes of examining and personally searching a person (Articles 223 and 255 of the CPC).

Another expression used in the provisions of paragraph 3 of part 2 of Article 128 of the CPC is “obvious traces of a crime on their clothing”. This is established through a personal search or an ordinary search aimed at finding the clothing the person was wearing at the time of the crime.

The provisions of paragraph 3 of part 2 of Article 128 of the CPC concerning “obvious traces of a crime in their residence” are also established through such investigative actions as inspections, searches, seizures, etc.

Paragraph 4 of part 2 of Article 128 of the CPC considers the following as grounds for detaining a suspect: 1) materials obtained through operational-search activities, or 2) materials obtained through counterintelligence activities, or 3) materials obtained through covert investigative actions.

It contains one important condition: these materials must contain reliable (trustworthy) information about a crime that has been committed or is being prepared.

The aforementioned operational-search activities, counterintelligence activities and covert investigative actions fall within the sphere of legal regulation.

If operational-search activities constitute one of the secret functions of the criminal prosecution authorities, with the resulting consequences for the field of criminal procedure, covert investigative actions are a phenomenon of criminal procedure connected with proceedings in a criminal case. In other words, operational-search activities arise long before criminal proceedings begin, while their materials, formalized in forms permissible from the standpoint of state secrets, are considered as grounds (for example, a report) for commencing a pre-trial investigation (Article 184 of the CPC).

Furthermore, materials concerning unlawful acts obtained in compliance with the provisions of the Law “On Operational-Search Activities” constitute documents and may be used as sources of evidence (part 2 of Article 120 of the CPC; the procedure for introducing them, which may be used in such cases, was described in detail as far back as Article 130 of the CPC of the Republic of Kazakhstan of 1997).

As for covert investigative actions, they are directly provided for by the provisions of Chapter 30 of the CPC, “Covert Investigative Actions”, and are ordered only in connection with the receipt and registration of statements and reports of crimes. They may even constitute a continuation of operational-search activities, but in that case they are carried out pursuant to instructions issued by the pre-trial investigation authority in criminal cases.

What operational-search activities and covert investigative actions have in common is the methods used to carry them out. In both cases, the methods (techniques, procedures and means) of operational-search activities are applied. The differences lie in the fact that the conditions, grounds, sequence and procedure for applying operational-search methods are regulated by the Law “On Operational-Search Activities” dated 15 September 1994, whereas the procedural form for ordering and conducting covert investigative actions is determined by the provisions of Chapter 30 of the CPC.

The rules of part 8 of Article 115 of the CPC should also be regarded as a form of using materials obtained through operational-search activities, counterintelligence activities and covert investigative actions, including as a basis for detaining a person. According to these rules, factual information directly perceived by a person providing confidential assistance to law enforcement or special state bodies may be used as evidence after that person has consented to being questioned as a witness, victim, suspect or accused. Whereas factual information directly perceived by persons infiltrated into a criminal group may, for the purpose of ensuring the safety of those persons, be used as evidence after an official of the body carrying out operational-search activities, counterintelligence activities or covert investigative actions has been questioned as a witness.

Thus, if materials of an operational-search or counterintelligence nature, or materials obtained through covert investigative actions, have been obtained in strict compliance with the requirements of the Law “On Operational-Search Activities”, the Law “On Counterintelligence Activities” and the CPC, and have also been brought to the attention of the inquiry officer or investigator in accordance with the established procedure, they may serve as grounds for detaining a suspect.

10. Part 3 of Article 128 of the CPC contains a fundamental clarification: the detention of a suspect on the grounds specified in paragraphs 2–4 of part 2 of this Article may take place only after urgent investigative actions have been carried out, the list of which is provided for in Article 196 of the CPC. This requirement does not apply to the ground specified in paragraph 1 of part 2 of Article 128 of the CPC, since, when this ground is applied, detention itself constitutes an urgent investigative action.

11. Within the meaning of part 4 of Article 128 of the CPC, “other information” serving as grounds for detaining a suspect should be understood as information of an operational-search nature, evidence obtained during investigative actions in the criminal case under investigation and in other criminal cases, etc.

At the same time, other information underlying the detention of a suspect does not in itself constitute grounds for carrying out this investigative action. It merely indicates the necessity and expediency of such detention, and this is due to the following. Other information must be applied cumulatively with facts contained in the case file indicating that the person in respect of whom the other information was received attempted to abscond (attempted to escape or was detained while escaping), or has no permanent (stable) place of residence, or the identity of the suspect has not been established (identification documents are absent). In all the situations described, failure to detain the presumed suspect may lead to the loss of evidentiary information, the disappearance of the suspect, the commission of new crimes by that person, etc.

As an independent type of other information constituting grounds for detaining a person, the law considers a situation in which a prosecutor's motion for authorization of the person's detention has been submitted to the court, where that person is involved in the case as:

— a witness entitled to the right to defence;

— a suspect in respect of whom detention was not applied after they were recognized as such;

— a suspect in respect of whom a ruling on the legal classification of the suspect's act has been issued.

The range of circumstances outlined in part 4 of Article 128 of the CPC is exhaustive. For example, it cannot include the fact that a person has no permanent occupation, etc.

Finally, the detailed explanation of the calculation of the beginning and end of the detention period (part 5 of Article 128 of the CPC) was reflected in Regulatory Resolution No. 2 of the Constitutional Council dated 13 April 2012, “On the Official Interpretation of the Provisions of the Constitution of the Republic of Kazakhstan on the Issue of Calculating Constitutional Time Limits”.

In particular, the Constitutional Council provided the following practical clarification:

“The beginning of the detention period shall be the exact minute at which the restriction of the detained person's liberty, including freedom of movement — forcible retention in a particular place, forcible delivery to the inquiry and investigation authorities (seizure; confinement in a room, compelling a person to go somewhere or remain in a particular place, etc.), as well as any other actions substantially restricting a person's personal liberty — becomes real, irrespective of whether the detained person has been assigned any procedural status or whether any other formal procedures have been completed. The moment of expiry of this period shall be the expiration of seventy-two hours, calculated continuously from the time of actual detention” (paragraph 2 of the descriptive and reasoning part, paragraph 1 of the operative part).

The law establishes certain exceptions with regard to the detention of a minor. According to part 1 of Article 541 of the CPC, a minor may be detained and a preventive measure may be applied to them. A preventive measure in the form of detention shall not be applied to minor suspects or accused persons who have committed a criminal misdemeanour or a crime of minor or medium gravity.

It follows from the foregoing that a minor may be detained only in the event of committing a grave or especially grave crime. This corresponds to the purposes of detention, among which the law identifies, alongside the prevention of a crime, the resolution of the issue of applying a preventive measure in the form of detention to the person detained (part 1 of Article 128 of the CPC).

The detention of persons enjoying privileges in criminal proceedings (Members of Parliament, judges, the Chairperson and members of the Constitutional Council, and the Prosecutor General) has its own specific features.

After the ground for commencing a pre-trial investigation has been registered in the Unified Register, the pre-trial investigation in respect of these persons may be continued only with the consent of the Prosecutor General.

In cases where the above-mentioned persons are detained at the scene of the crime, or where the fact of preparation for or attempted commission of a grave or especially grave crime has been established, or where they have committed a grave or especially grave crime, the pre-trial investigation in respect of them may be continued before obtaining the consent of the Prosecutor General of the Republic of Kazakhstan, but the Prosecutor General must be notified thereof within twenty-four hours.

Within two days after receiving the notification, the Prosecutor General shall examine the legality of the procedural actions carried out and either consent to the continuation of the pre-trial investigation by issuing a resolution to that effect or refuse to do so, thereby terminating the pre-trial investigation. If the pre-trial investigation was unlawfully continued before obtaining the consent of the Prosecutor General of the Republic of Kazakhstan, its results may not be admitted as evidence in the criminal case.

The detention of the aforementioned persons in the event that they commit crimes may take place only after the Prosecutor General (the First Deputy Prosecutor General, where the matter concerns the Prosecutor General personally) has obtained official consent from the relevant supreme state authority or the President of the Republic of Kazakhstan in accordance with the procedure provided for by the provisions of Chapter 57 of the CPC (except in cases of detention at the scene of the crime or commission of grave or especially grave crimes).

15. Similarly, in accordance with international instruments of a universal, regional and bilateral nature ratified by the laws of the Republic of Kazakhstan, personal inviolability and immunity from detention for the commission of crimes exist, subject to certain exceptions, in respect of a specific group of persons, the list of whom is established by Articles 553–554 of the CPC: heads of diplomatic missions of foreign states, members of the diplomatic staff of such missions and members of their families, provided that they reside with them and are not citizens of the Republic of Kazakhstan; heads and representatives of foreign states, members of parliamentary and governmental delegations and, on the basis of reciprocity, employees of delegations of foreign states arriving in Kazakhstan to participate in international negotiations, international conferences and meetings or on other official assignments, or travelling in transit through the territory of the Republic of Kazakhstan for the same purposes, as well as members of the families of the aforementioned persons accompanying them, provided that such family members are not citizens of the Republic of Kazakhstan; heads, members and staff of missions of foreign states to international organizations, officials of such organizations staying in the territory of the Republic of Kazakhstan on the basis of international treaties or generally recognized international customs, etc.

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishyevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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