Commentary on Article 131. Procedure for the Procedural Detention of a Person Suspected of Committing a Criminal Offence under the Criminal Procedure Code of the Republic of Kazakhstan
1. When a person is detained on suspicion of committing a criminal offence, an official of the criminal prosecution authority shall orally inform the person of the criminal offence on suspicion of which he or she is being detained, explain the right to invite defence counsel, the right to remain silent, and the fact that anything said by the person may be used against him or her in court.
If the detained person does not speak Kazakh and (or) Russian, or is unable at the time of detention, due to alcohol, drug or toxic substance intoxication or a pathological psychosomatic condition, to adequately perceive the explanation of his or her rights, the suspect's rights shall be explained to him or her, respectively, in the presence of an interpreter (where necessary) and (or) defence counsel before the commencement of questioning as a suspect, and a note to that effect shall be made in the interrogation record.
2. Within the period specified in the first part of Article 129 of this Code, an official of the body of inquiry, an inquirer or an investigator shall draw up a detention record. The suspect shall undergo a medical examination in accordance with the procedure provided for in Article 223 of this Code in order to establish his or her general state of health and the presence of bodily injuries.
The following information shall be indicated in the detention record:
1) the surname, first name and patronymic (if any) of the suspect;
2) by whom the suspect was detained, the grounds and motives for detention, the place of detention, the time of actual detention and delivery (indicating the hour and minute);
3) information concerning the explanation of the suspect's rights;
4) the results of the personal search;
5) information concerning the state of health of the detained person;
6) the time and place of drawing up the record;
7) the period of detention.
The record shall be signed by the official who drew it up, the suspect and defence counsel (if participating).
The medical examination report shall be attached to the record.
3. The person conducting the pre-trial investigation shall be obliged to notify the prosecutor in writing of the detention carried out within twelve hours from the moment the detention record is drawn up.
4. A person may be detained on suspicion of committing a crime for a period not exceeding forty-eight hours, and a minor for a period not exceeding twenty-four hours, except for the following cases, in which detention for a period not exceeding seventy-two hours shall be permitted:
1) detention on suspicion of committing an especially grave crime;
2) detention on suspicion of committing a terrorist or extremist crime;
3) detention on suspicion of committing a crime during mass riots;
4) detention on suspicion of committing a crime as part of a criminal group;
5) detention on suspicion of committing crimes related to the illicit trafficking of narcotic drugs, psychotropic substances, precursors and their analogues, crimes against the sexual inviolability of minors, as well as an intentional crime resulting in the death of a person;
6) the impossibility of ensuring the timely delivery of the person to the investigating judge due to remoteness or the absence of proper means of communication, as well as under conditions of a state of emergency or emergency situation.
Footnote. Article 131 was amended by the Laws of the Republic of Kazakhstan dated 7 November 2014 No. 248-V (shall enter into force on 1 January 2015); dated 21 December 2017 No. 118-VI (shall enter into force upon the expiry of ten calendar days after the date of its first official publication); dated 27 December 2019 No. 292-VI (for the procedure for entry into force, see Article 2).
The article under consideration contains important provisions characterising the legality and validity of a person's detention where detention has actually taken place, including after the person has been delivered to the criminal prosecution authorities. Compliance with these provisions by inquirers and investigators is simply essential in order to avoid violations of the principle of legality and other principles of criminal proceedings.
Part 1 of Article 131 of the CPC incorporates important rules, compliance with which constitutes evidence of the legality and validity of the initial stage of detaining a person as a suspect.
Thus, regardless of the place and time of actual detention, the inquirer and investigator are obliged to orally explain to the person the initial set of his or her rights at that moment. Moreover, the explanation must be brief and concise in form, without distortion or abridgement; it is given only once, as a rule, in connection with the actual detention of the person at a specific place and at a specific time of day.
The explanation must necessarily include:
— announcing information about the official of the criminal prosecution authority carrying out the detention and the time of detention, indicating the hour and minute;
— announcing the article of the Criminal Code providing for liability for the criminal offence in connection with suspicion of committing which the person is being detained as a suspect;
— announcing the right to invite defence counsel, including through the criminal prosecution authority;
— announcing the right to remain silent after actual detention and during transportation;
— announcing that everything said by the person after his or her detention and during transportation may be used against him or her in court.
The explanation of rights must follow immediately after the actual detention of the person at the place of detention, since such persons may subsequently find themselves in a difficult psychological state and, consequently, behave inadequately.
The following question arises: can the above-mentioned rights always be explained?
No, not always, and the answer to this question is contained in the second sentence of Part 1 of Article 131 of the CPC: if the detained person does not speak Kazakh and (or) Russian, the explanation of his or her rights shall be carried out in the presence of an interpreter and defence counsel before the commencement of questioning as a suspect, and a note to that effect shall be made in the interrogation record. That is, such an explanation shall in any case take place in the presence of the above-mentioned persons before the commencement of the first interrogation of the suspect following delivery and the drawing up of the detention record.
In this case, what is meant is the explanation of the set of initial rights of the detained person specified in Part 1 of Article 131 of the CPC, as well as the mandatory explanation of the remaining full scope of the suspect's rights provided for in Article 64 of the CPC, since, before the interpreter and defence counsel appear, the detention record has generally already been drawn up.
The inquirer and investigator must act in the same manner when explaining rights to persons who, at the moment of detention, for various reasons are unable to adequately perceive the substance of the suspect's rights (persons who are under the influence of alcohol or other intoxicating substances, or in a pathological psychosomatic condition). Such a suspect must undergo a medical examination, with the examination report attached to the detention record.
The provisions of Part 2 of Article 131 of the CPC regulate the time limits, form and content of the detention record, which is drawn up immediately after the involvement of the person delivered has been established in relation to the criminal offence and no later than the expiry of the delivery period, that is, within three hours.
It should be recalled that the detention record belongs to the group of records of procedural (investigative and judicial) actions which are regarded by law as sources of evidence in a case (Part 2 of Article 111 of the CPC).
Of fundamental importance is the fact that, before the detention record is drawn up, after the involvement of the person delivered in the criminal offence has been established, that person must undergo a mandatory medical examination to establish his or her general state of health and the presence of bodily injuries (Part 2 of Article 131 of the CPC).
It should be noted that this is a statutory requirement and it must be brought to the attention of the person delivered before the detention record is drawn up. This will only improve the quality of the record and the legality and validity of the person's detention. If this is not done, the detained person will be justified in subsequently claiming that he or she was not informed of this right. The consequences may be extremely negative if it turns out that the detained person was seriously ill at the time of detention or that violence was used against him or her by officials of the criminal prosecution authority.
Part 2 of Article 131 of the CPC establishes seven mandatory items to be reflected in the detention record, which it is worth examining in detail.
Since detention is always individual and identifies the specific person in respect of whom pre-trial investigation and judicial proceedings will be conducted, the surname, first name and patronymic (if any) of the suspect must be indicated in the record (paragraph 1 of Part 2 of Article 131 of the CPC).
This provision is reinforced by the law's requirement that, where the suspect is held in custody, a document certifying his or her identity shall be attached to the materials of the criminal case submitted to the prosecutor together with the indictment. In all other cases, a copy certified by the person conducting the pre-trial investigation shall be attached (Part 2 of Article 300 of the CPC).
The rules set out in paragraph 2 of Part 2 of Article 131 of the CPC are of fundamental importance. The need to indicate in the record by whom the suspect was detained arises from the fact that the person may have been actually detained and delivered by a citizen. In addition, this is necessary in order to establish who carried out the detention. The point is that, pursuant to paragraphs 3—4 of Part 1 of Article 112 of the CPC, the performance of a procedural action by a person who is not authorised to conduct proceedings in a criminal case, or the participation in a procedural action of a person subject to disqualification, entails recognition of the factual data obtained with their participation as inadmissible evidence.
The precise indication of the ground or grounds for detention, of which there may be several at once, ensures the legality and validity of the person's detention.
Since the grounds for detention presuppose the existence of certain motives for detention, they should be stated in the record. This strengthens its substantiation. In this regard, the motives for detention are nothing other than the grounds for applying preventive measures specified in Article 136 of the CPC (the suspect or accused may abscond from the criminal prosecution authorities or the court, or obstruct an objective investigation of the case or its examination by the court, or continue to engage in criminal activity, as well as for the purpose of ensuring the execution of the judgment).
It is no less important to indicate the place of actual detention, since this is often connected with the elements of the objective side of the corpus delicti and other circumstances to be established in the case.
It is also important to comply with the constitutional requirement that, without court authorisation, a person may be detained for a period not exceeding seventy-two hours (paragraph 2 of Article 16 of the Constitution). Therefore, the record must indicate the exact time of the person's actual detention and delivery to the criminal prosecution authority, specifying the hour and minute, as well as the period for which the person is being detained (paragraphs 2 and 7 of Part 2 of Article 131 of the CPC).
In this regard, it should be noted that Part 4 of Article 131 of the CPC contains certain entirely new exceptions and introduces specific features into the regulation of the general seventy-two-hour period for detaining a person as a suspect. They are as follows.
First. As a rule, a person who has committed a crime may be detained for a period not exceeding forty-eight hours.
Second. If the perpetrator of the crime is a minor, the period of his or her detention must not exceed twenty-four hours.
Third. Finally, in the six cases identified by law (paragraphs 1—6 of Part 4 of Article 131 of the CPC), the period of detention of a person must not exceed seventy-two hours. This concerns a group of serious and especially grave crimes, crimes against the sexual inviolability of minors, and crimes related to the illicit trafficking of narcotic drugs, psychotropic substances, precursors and their analogues, etc.
The objective impossibility of timely delivery of the suspect to the investigating judge for consideration of the issue of obtaining authorisation for his or her placement in custody due to remoteness or the absence of proper means of communication, as well as under conditions of a state of emergency or emergency situation, is identified as a separate sixth ground. The participation of the suspect in the court hearing when the investigating judge considers a motion for authorisation of a preventive measure in the form of detention in custody is mandatory (Article 148 of the CPC).
The information concerning the fact that the rights have been explained to the detained person, referred to in paragraph 3 of Part 2 of Article 131 of the CPC, establishes the requirements of Part 1 of Article 131 of the CPC regarding the oral communication to the detained person of the set of his or her initial rights at the moment of actual detention, which we discussed above.
Since the suspect's procedural status arises upon the drawing up of the record, all the rights specified in Article 64 of the CPC must also be explained to him or her in detail and in an understandable manner.
A personal search forms part of detention (paragraph 4 of Part 2 of Article 131 of the CPC), follows immediately after detention, and its purposes are set out in Article 132 of the CPC. It is therefore entirely logical that its results must be reflected in the detention record. In this regard, however, we note that the results of a personal search may be set out in a separate record where there are grounds for doing so, at the place of the person's actual detention.
The state of health of the detained person (paragraph 5 of Part 2 of Article 131 of the CPC), recorded during the medical examination, must be indicated in the detention record. The law requires that the medical examination report be attached to the record in all cases (Part 2 of Article 131 of the CPC). The report has important evidentiary significance and must be regarded as a document capable of indicating whether unlawful methods of investigation have or have not been applied to the detained person, together with the consequences arising therefrom. Its absence constitutes grounds for not placing the person in a temporary detention facility.
The time and place of drawing up the record, its mandatory signing by the official who drew it up, the suspect and defence counsel, if the latter is present, as well as written notification to the prosecutor of the person's detention within twelve hours from the moment the detention record is drawn up, are of procedural significance for compliance with the requirements of Parts 2—4 of Article 131 of the CPC (paragraph 6 of Part 2 and Part 3 of Article 131, Part 5 of Article 133 of the CPC).
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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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