Commentary on Article 133. Grounds for the Release of a Person Detained on Suspicion of Committing a Criminal Offence of the Criminal Procedure Code of the Republic of Kazakhstan
1. A person detained on suspicion of committing a criminal offence shall be released by a decision of the person conducting the pre-trial investigation or the prosecutor if:
1) the suspicion of committing a criminal offence has not been confirmed;
2) there are no grounds for applying to the detained person a preventive measure in the form of detention in custody or a punishment in the form of arrest, or expulsion from the Republic of Kazakhstan;
3) the detention was carried out with a substantial violation of the requirements of Article 131 of this Code;
4) there were no legal grounds for the detention.
2. If, within forty-eight hours from the moment of actual detention, and in respect of minors — within twenty-four hours, the head of the detention facility has not received a court ruling authorizing the detention of the suspect in custody, the head of the detention facility shall immediately release the person by their own decision and notify the person in charge of the case and the prosecutor thereof, except in the cases provided for in subparagraphs 1)–6) of part four of Article 131 of this Code.
In the cases provided for in subparagraphs 1)–6) of part four of Article 131 of this Code, the head of the detention facility shall immediately release the person by their own decision and notify the person in charge of the case and the prosecutor thereof if the head has not received a court ruling authorizing the detention of the suspect in custody within seventy-two hours from the moment of actual detention.
3. In the event of failure to comply with the requirements of part two of this Article, the head of the administration of the detention facility shall bear liability as established by law.
4. Upon the release of a detained person, the person shall be issued a certificate indicating who detained them, the grounds, place and time of detention, the time of delivery, as well as the grounds and time of release.
5. In the cases provided for in subparagraphs 3) and 4) of part one of this Article, data obtained as a result of investigative actions conducted with the participation of the detained person during or after unlawful detention shall be deemed inadmissible as evidence.
Note. Article 133 was amended by Law of the Republic of Kazakhstan dated December 21, 2017 No. 118-VI (shall enter into force upon the expiration of ten calendar days after the day of its first official publication).
An integral part of the detention process is the provisions of Article 133 of the CPC, which regulate the grounds and procedure for releasing a person detained on suspicion from a detention facility.
Part 1 of Article 133 of the CPC establishes four grounds for releasing a detained person by a decision of the person conducting the pre-trial investigation or the prosecutor, within the detention periods specified in part 4 of Article 131 of the CPC. These grounds may apply separately or in combination, depending on the circumstances of the detention. Unlike the first two grounds, the third and fourth characterize circumstances indicating the unlawfulness of the detained person's presence in detention facilities.
The provisions of subparagraph 1) of part 1 of Article 133 of the CPC mean that evidence has been obtained, including through the procedure of verifying the suspect's testimony within the relevant detention periods, which does not confirm the suspicion of committing a criminal offence, and the person must therefore be immediately released from the detention facility.
The provisions of subparagraph 2) of part 1 of Article 133 of the CPC imply that there is no need to apply detention in custody to the detained person, which is determined by the nature of the committed crime, the personality of the suspect or accused, their age, state of health, family status, occupation, financial status, availability of a permanent place of residence and other circumstances. In such cases, another preventive measure is applied or an undertaking to appear is obtained (Articles 137 and 156 of the CPC).
Moreover, foreigners or stateless persons detained for committing a criminal misdemeanour shall be released from detention facilities if there are no grounds for imposing a criminal punishment in the form of arrest on a person who has committed a criminal misdemeanour, or if there are no grounds for applying the additional criminal punishment of expulsion from the Republic of Kazakhstan to a foreigner or stateless person (subparagraph 4) of part 3 of Article 40, Articles 45, 51, 392–393 of the Criminal Code).
The provisions of subparagraph 3) of part 1 of Article 133 of the CPC are associated with any deviation from the procedural form of detention specified in the provisions of Article 131 of the CPC. In other words, failure to comply with the rules of the Article in the sequence and form in which they are specified in its provisions constitutes a substantial violation of the requirements of this Article. In this regard, data obtained as a result of investigative actions conducted with the participation of the detained person during or after unlawful detention shall be deemed inadmissible as evidence (part 1 of Article 133 of the CPC).
Similarly, the provisions of subparagraph 4) of part 1 of Article 133 of the CPC indicate the absence in the case materials of evidence establishing the legal grounds for detention of a person listed in part 2 of Article 128 of the CPC. In other words, this constitutes non-compliance with the fundamental rule that, pursuant to part 3 of Article 128 of the CPC, persons suspected of committing a crime may be detained only after the necessary urgent investigative actions have been conducted, except for the ground provided for in subparagraph 1) of part 2 of Article 128 of the CPC.
Failure to receive a ruling of the investigating judge authorizing detention in custody from the moment of actual detention, but within the detention periods specified in part 4 of Article 131 of the CPC, constitutes a mandatory ground for the head of the temporary detention facility to release the suspect (part 2 of Article 133 of the CPC). This provision of the law demonstrates its independence from criminal prosecution authorities. Violation of this requirement of the CPC constitutes an unconditional ground for bringing the head of the temporary detention facility to criminal liability as an accomplice to the knowingly unlawful detention of a suspect in custody.
The liability of the head of the administration of the detention facility is provided for in Article 414 of the Criminal Code. Within the meaning of Article 134 of the CPC, the heads of the administration of detention facilities include the heads of temporary detention facilities, guardhouses, institutions of the penal enforcement system, the inquiry body, as well as local area commandants.
Parts 2–4 of Article 133 of the CPC regulate the actions that the heads of detention facilities are required to perform when grounds for releasing a detained person exist: issue a corresponding decision, notify the person in charge of the case and the prosecutor thereof, and issue a certificate indicating who detained the person, the grounds, place and time of detention, the time of delivery, as well as the grounds and time of release. This certificate is not the same as the certificate issued following the delivery of a person to a criminal prosecution authority (part 3 of Article 129 of the CPC).
Issuing a certificate to a suspect in respect of whom the suspicion has not been confirmed is a mandatory function of the criminal prosecution authority or the head of the temporary detention facility. This is necessary to restore the person's civil rights violated as a result of unlawful actions by the criminal prosecution authority (see the commentary on the provisions of Article 38 of the CPC).
Moreover, knowingly unlawful detention, including falsification of the time of preparation of the detention record or the time of actual detention, entails criminal liability for the official of the criminal prosecution authority (Article 414 of the Criminal Code).
Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan, by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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