Commentary on Article 130. The Right of Citizens to Non-Procedural Detention of Persons Who Have Committed a Criminal Offence under the Criminal Procedure Code of the Republic of Kazakhstan
1. The victim, as well as any other citizen, shall have the right to detain a person who has committed a criminal offence and restrict that person's freedom of movement for the purpose of handing over or delivering that person to a criminal prosecution authority or another public authority in order to prevent the possibility of that person committing further unlawful acts.
2. In the cases provided for in paragraph 1 of this Article, where the detained person offers resistance, physical force and other means may be used against that person within the limits established by Article 33 of the Criminal Code of the Republic of Kazakhstan. If there are grounds to believe that the detained person is carrying weapons or other dangerous objects relevant to the criminal case, the citizen who detained that person shall have the right to inspect the detained person's clothing and seize any objects found on that person for the purpose of handing them over to law enforcement authorities or another public authority.
Everyone has the right to protect their rights and freedoms by all means not contrary to the law, including necessary self-defence, as stated in paragraph 1 of Article 13 of the Constitution. This right of citizens is implemented in the current criminal and criminal procedure legislation, including through the establishment of the institution of necessary self-defence (Article 32 of the Criminal Code), as well as the infliction of harm when detaining a person who has committed an unlawful act (Article 33 of the Criminal Code). These institutions of criminal law play a significant preventive role in combating crime and should be more widely promoted among the population of the country. Pursuant to paragraph 3 of Article 33 of the Criminal Code, the right to detain a person who has committed an unlawful act belongs not only to persons specifically authorised to do so, but also to victims and other citizens. This institution of criminal law excludes criminal liability where the measures necessary to detain the person have not been exceeded intentionally (that is, where no clearly excessive harm, unnecessary and unjustified by the circumstances, has been inflicted).
Detention carried out by citizens, as emphasised by the law in the title of this Article, is non-procedural in nature and, consequently, does not require the performance of mandatory procedural actions that are necessary when a person is detained by officials of criminal prosecution authorities (Article 131 of the Criminal Procedure Code). In essence, the detention of a person, within the meaning of the provisions of paragraph 2 of Article 130 of the Criminal Procedure Code, is intended to enable victims and other citizens, where necessary, to use physical force and other means to prevent that person's criminal activity and restrict that person's freedom of movement for the purpose of handing over or delivering the person to the relevant public authorities and administrative bodies. At the same time, following the physical detention, the law permits a preventive inspection of the detained person's clothing and the seizure of any weapons or other dangerous objects relevant to the case that may be found on that person.
Weapons or other dangerous objects, as well as items relevant to the case, seized from a suspect by victims or citizens who have detained the suspect in accordance with Article 130 of the Criminal Procedure Code and subsequently handed over to the law enforcement authorities may be documented in one of the following ways: within the framework of a detention record (paragraph 2 of Article 131 of the Criminal Procedure Code); by issuing a resolution and drawing up a seizure record (Articles 253 and 256 of the Criminal Procedure Code); by drawing up a personal search record of the detained person (subparagraph 2 of paragraph 3 of Article 255 of the Criminal Procedure Code); or by drawing up a record of the submission of objects and documents (paragraph 4 of Article 122, Articles 259 and 261 of the Criminal Procedure Code). All the above options comply with the provisions of the Criminal Procedure Code, and the records drawn up in this manner in respect of weapons and other objects seized by a citizen from a suspect may be regarded as admissible sources of evidence.
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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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