Commentary on Article 134. Procedure for Detaining Persons Held in Custody on Suspicion of Committing a Criminal Offence of the Criminal Procedure Code of the Republic of Kazakhstan
Persons detained on suspicion of committing a criminal offence shall be held in temporary detention facilities. Military personnel detained on suspicion of committing a criminal offence and persons serving a sentence of imprisonment may also be held, respectively, in guardhouses and in institutions of the penal enforcement system that execute sentences of imprisonment. In the cases provided for in subparagraph 9) of part two and part three of Article 61 of this Code, persons detained on suspicion of committing a criminal offence shall be held in specially equipped premises designated by the head of the inquiry body. Under a state of emergency, persons detained on suspicion of committing a criminal offence may be held in premises adapted for these purposes and designated by the commandant of the locality. The procedure and conditions for holding in custody persons detained on suspicion of committing a criminal offence shall be determined by the legislation of the Republic of Kazakhstan.
The article under commentary attaches great importance to the places of detention of persons held in custody, who, as persons who have not yet been convicted, are holders of certain rights and obligations. The provisions of Article 134 of the CPC establish several such places where detained persons may be held in custody, which is обусловлено by the place where the criminal offence was committed and the circumstances of the criminal case, their personal characteristics, and special situations that have arisen in a particular region of the country.
As a rule, the CPC designates temporary detention facilities (a type of special institution) as the standard, generally accepted place of detention for a detained person. However, this is not always possible. Therefore, pursuant to the provisions of Article 134 of the CPC and paragraphs 1–3 of Article 7 of the Law dated March 30, 1999, “On the Procedure and Conditions for Keeping Persons in Special Institutions and Special Premises Ensuring Temporary Isolation from Society”, the places of detention of suspects and accused persons during proceedings in a case may generally include:
pre-trial detention centres of the penal enforcement system and national security bodies of the Republic of Kazakhstan (a type of special institution);
temporary detention facilities of the internal affairs bodies and national security bodies of the Republic of Kazakhstan;
correctional institutions of the penal enforcement system that execute sentences of imprisonment, and guardhouses;
premises designated by the captains of seagoing vessels on long-distance voyages, the heads of border detachments, or the commandant of the locality and specially adapted for holding suspects.
The activities of places where detained persons are held in custody are regulated in detail by subordinate regulatory legal acts of law enforcement, special state and military bodies, as well as the Prosecutor General. Given that the author comments on the provisions of the CPC rather than subordinate regulatory legal acts, which, moreover, are systematically amended and supplemented and lose their legal force (a serious problem of contemporary departmental rule-making), the author refers the reader to the Legal Information System, where the full texts of these subordinate regulatory legal acts are available.
Within the framework of the foregoing, the provisions of Section C of Part 2 of the Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), adopted by the UN General Assembly on December 17, 2015 (Resolution 70/175, annex), are of fundamental importance to domestic law enforcement practitioners. These Rules replaced the Standard Minimum Rules for the Treatment of Prisoners adopted at the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders on August 30, 1955, and approved by the Economic and Social Council at its 994th plenary meeting on July 31, 1957. We consider it necessary to reproduce them in full and verbatim. This is relevant in light of the ongoing improvement of the legal framework governing the application of procedural coercive measures in criminal proceedings and everyone's constitutional rights to personal liberty and inviolability of dignity:
“C. Persons under arrest or awaiting trial.
Rule 111.
Persons arrested or detained on a criminal charge and held either in police stations or in prison institutions (pre-trial detention centres), but who have not yet been brought before a court and convicted, are referred to in the following Rules as untried prisoners.
Untried prisoners are presumed innocent and shall be treated accordingly (emphasis added by the author — M.K.).
Without prejudice to the legal rules relating to the protection of individual liberty or prescribing the procedure to be followed in respect of untried prisoners, such prisoners shall be subject to a special regime, which is set out in the following Rules, and only the requirements of this regime are described below.
Rule 112.
Untried prisoners shall be kept separate from convicted prisoners.
Young untried prisoners shall be kept separate from adults and, in principle, in separate institutions.
Rule 113.
Untried prisoners shall be accommodated individually in separate rooms at night, taking into account, however, local conditions arising from climatic circumstances.
Rule 114.
Where this does not conflict with the established order of the institution concerned, untried prisoners may, if they so wish, be allowed to receive food from outside at their own expense, either through the prison administration or through members of their families or friends. Otherwise, the prison administration shall provide the prisoner with food.
Rule 115.
Untried prisoners shall be allowed to wear their own clothing, provided that it is clean and decent. If an untried prisoner wears prison clothing, it shall be different from the clothing worn by convicted prisoners.
Rule 116.
Untried prisoners shall always be given the opportunity to work, but they shall not be required to do so. If such a prisoner chooses to work, he or she shall be paid for that work.
Rule 117.
All untried prisoners shall be allowed to purchase, at their own expense or at the expense of third parties, books, newspapers, writing materials and other items that enable them to occupy their time, provided that these are compatible with the interests of the administration of justice, security requirements and the established order of the institution concerned.
Rule 118.
Untried prisoners shall be allowed to use the services of their own doctor or dentist during their stay in prison, if the request for such services appears justified and if they are able to cover the associated expenses.
Rule 119.
Every untried prisoner shall have the right to be promptly informed of the reasons for his or her detention and of any charges brought against him or her.
If an untried prisoner does not have a lawyer of his or her own choosing, he or she shall have the right to a lawyer appointed by a judicial or other authority in all cases where the interests of justice so require, and without the untried prisoner having to pay any fee if he or she does not have sufficient financial means. Any denial of access to a lawyer shall be promptly referred to an independent authority for consideration” and so forth.
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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