Commentary on Article 138. Circumstances to Be Taken into Account When Choosing a Preventive Measure and Establishing Additional Restrictions of the Criminal Procedure Code of the Republic of Kazakhstan
1. When deciding whether it is necessary to apply a preventive measure and, if so, which one, in addition to the grounds specified in Article 136 of this Code, as well as when establishing additional restrictions specified in Part Two of Article 137 of this Code, the following circumstances must also be taken into account:
1) the gravity of the crime committed;
2) the personality of the suspect or accused person and their age;
3) state of health;
4) family status and the presence of dependants in the family;
5) the strength of the suspect's or accused person's social ties;
6) the reputation of the suspect or accused person;
7) occupation;
8) whether the suspect or accused person has a permanent place of employment or study;
9) financial status;
10) whether the person has a permanent place of residence and other circumstances.
2. In the absence of the grounds listed in Article 136 of this Code, the gravity of the crime committed may not constitute the sole ground for choosing detention as a preventive measure.
Footnote. Article 138 was amended by Law of the Republic of Kazakhstan No. 180-VI dated 12 July 2018 (shall enter into force upon the expiration of ten calendar days after the date of its first official publication).
The use of the grounds for applying preventive measures specified in Article 136 of the CPC, as we have already noted above, is permissible only in combination with and taking into account the other circumstances set out in the provisions of Article 138 of the CPC. And this is undoubtedly a normal situation, which is consistent with international and constitutional standards of justice with regard to the application of preventive measures, requiring every person who has committed a crime to be viewed within the context of the presumption of innocence, as a person who has not yet been convicted. We have also drawn attention to this when commenting on the provisions concerning certain principles of criminal proceedings (Chapter Two of the CPC).
The list of circumstances regulated by Article 138 of the CPC is not exhaustive; therefore, criminal prosecution authorities and the court may also take other circumstances into consideration. Some of them are expressly provided for as exceptional grounds for applying, for example, detention in cases where a person has committed a crime punishable by imprisonment for a term of less than five years (the person has no permanent place of residence in the territory of the Republic of Kazakhstan, their identity has not been established, they have violated a previously imposed preventive measure, etc.) (Part 1 of Article 147 of the CPC).
In general, the nature of the wording used in Part 1 of Article 138 of the CPC, namely, “and other circumstances”, is disclosed through the grounds that aggravate or mitigate the criminal liability and punishment of a person, regulated by Articles 53–54 of the Criminal Code. It appears that these are the grounds that should primarily be followed when applying preventive measures (see the commentary on Clauses 4 and 5 of Part 1 of Article 113 of the CPC).
When relying on any particular circumstance taken into account when choosing a preventive measure and establishing additional restrictions, the body conducting the criminal proceedings must proceed from the case materials containing information about all or some of the circumstances of this kind. In fact, by listing these circumstances, the law already presupposes that the relevant materials are available in the case file. The absence of such information in the case file may constitute evidence that the selection of a particular preventive measure is unlawful and unjustified.
The provision of Part 2 of Article 138 of the CPC is entirely humane and fair: if the grounds specified in Part 1 of Article 136 of the CPC for choosing detention are absent, the gravity of the act committed may not be regarded as the sole condition for applying this preventive measure. That is, even in this situation, all the circumstances specified in Part 1 of Article 138 of the CPC must be taken into account.
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 Kazakhstan National Academy of Natural Sciences, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
Constitution Law Code Normative Act Decree Order Resolution Lawyer Almaty Lawyer Legal Service Legal Consultation Civil Criminal Administrative Cases and Disputes Defence Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Programme Charter Statute Article Commentary Resolution Regulation Protocol Draft Programme Rules Addresses
