Commentary on Article 139. Application of a Preventive Measure Before the Issuance of a Resolution on the Qualification of the Suspect’s Act of the Criminal Procedure Code of the Republic of Kazakhstan

• 1. In exceptional cases, where the grounds provided for in Article 136 are present and taking into account the circumstances specified in Article 138 of this Code, a preventive measure may be applied to a suspect before the issuance of a resolution on the qualification of the suspect’s act. In this case, the resolution on the qualification of the suspect’s act must be announced no later than ten days from the moment the preventive measure is applied, and, in the event of the commission of at least one of the crimes provided for in Articles 173, 179, 181, 184, 255—268 and 272 of the Criminal Code of the Republic of Kazakhstan, no later than thirty days from the moment the preventive measure is applied; and if the suspect was detained and subsequently remanded in custody, within the same period calculated from the moment of detention. If the resolution on the qualification of the suspect’s act is not issued and announced within this period, the preventive measure shall be immediately cancelled.
• 2. Upon announcement to the suspect of the resolution on the qualification of his or her act, the issue of applying detention in custody as a preventive measure against that person shall be reconsidered by the court in accordance with the procedure provided for in Article 147 of this Code. If, twenty-four hours before the expiry of the period specified in part one of this Article, the head of the place of detention has not received a court ruling authorizing the detention of the suspect, the head of the place of detention shall notify the body or person in charge of the criminal case, as well as the prosecutor, thereof. If, upon expiry of the period specified in part one of this Article, the relevant decisions on the cancellation of the preventive measure or on the court’s authorization of the detention of the accused have not been received, the head of the place of detention shall release that person by means of his or her own resolution, a copy of which shall be sent within twenty-four hours to the body or person in charge of the criminal case and to the prosecutor.
• 3. In the event of failure to comply with the requirements of part two of this Article, the head of the administration of the place of detention shall bear liability established by law.
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• As a general rule and a statutory requirement, a preventive measure may be applied to a suspect only after a resolution on the qualification of his or her act has been issued, except for the cases provided for in Article 139 of the CPC (part 2 of Article 140 of the CPC). In this regard, Article 139 of the CPC regulates the procedural form for applying any preventive measure to a suspect before a resolution on the qualification of the suspect’s act has been issued and announced to that person.
• Thus, part 1 of Article 139 of the CPC permits the possibility of applying a preventive measure, including detention in custody, to a suspect, that is, a person officially designated as a suspect (part 1 of Article 64 of the CPC), well before a resolution on the qualification of his or her act is issued. Such a person may be someone who has been recognized as a suspect but has not previously been detained in accordance with Article 128 of the CPC, or a person who has been detained on the grounds specified in Article 128 of the CPC.
• Part 1 of Article 139 of the CPC establishes a group of conditions that must be complied with for the lawful application of a preventive measure before the issuance of a resolution on the qualification of the suspect’s act. These are:
• — the exceptional nature of the case. The law does not disclose the meaning of the expression “in exceptional cases”; its interpretation is possible in conjunction with the circumstances of applying a preventive measure set out below;
• — the existence of grounds for applying preventive measures specified in Article 136 of the CPC;
• — the existence of circumstances to be taken into account when selecting a preventive measure and establishing additional restrictions, as specified in Article 138 and part 3 of Article 140 of the CPC.
• In other words, it is precisely the combination of these circumstances that may form the basis of a resolution on the application of a preventive measure before the issuance of a resolution on the qualification of the suspect’s act.
• Naturally, the exceptional nature of the case presupposes a short period of time during which a person may remain in this position (part 1 of Article 139 of the CPC).
• When exceptional circumstances arise, the resolution on the qualification of the suspect’s act must, as a general rule, be issued and announced to the suspect no later than ten days from the moment the preventive measure is applied. This period is entirely sufficient for the adoption of a reasoned resolution.
• When a preventive measure is applied to a suspect in the commission of grave and especially grave crimes provided for in Articles 173, 179, 181, 184, 255—268 and 272 of the Criminal Code, taking into account the particular complexity of the investigation of such cases, the fact that they are generally committed by criminal groups, the need to conduct a substantial number of procedural and investigative actions in relation to them, etc., the resolution on the qualification of the suspect’s act must be announced to the suspect no later than thirty days from the moment the preventive measure is applied.
• If the suspect is initially detained and subsequently remanded in custody, the resolution on the qualification of the suspect’s act shall be issued within the above-mentioned periods, calculated, however, from the moment of the actual detention of that person.
• Otherwise, when circumstances arise indicating the possible failure to comply with the time limits for announcing the resolution on the qualification of the suspect’s act, this preventive measure, previously authorized by an investigating judge, should be immediately cancelled with the authorization of the investigating judge (parts 3 and 5 of Article 153 of the CPC).
• The resolution on the qualification of the suspect’s act announced to the suspect may contain evidence indicating the existence of circumstances that make it possible to reconsider the decision concerning the person’s detention in custody, if that person has been remanded in custody. Therefore, the law specifically stipulates that, after the resolution on the qualification of the suspect’s act has been announced to the suspect, the issue of the further application of detention in custody as a preventive measure against that person shall be reconsidered by the investigating judge (part 2 of Article 139 of the CPC). This obliges investigating judges, prosecutors, heads of investigative departments and bodies of inquiry to keep records of such cases and to raise, in a timely manner, the issues of maintaining detention in custody or replacing it with another preventive measure.
• Parts 2—3 of Article 139 of the CPC regulate the procedural actions, decisions and liability of the head of the place of detention in the event that, both twenty-four hours before the expiry of the time limits for announcing the resolution on the qualification of the suspect’s act to the suspect and after the expiry of those time limits, the investigating judge’s ruling authorizing the detention of the suspect in custody has not been received by that head, together with the resulting consequences. I would only note that the system of special rules on this matter makes the head of the place of detention a full-fledged participant in criminal proceedings, acting, as it were, as a neutral party in situations involving the selection of detention in custody in respect of a suspect, and this is by no means accidental. The powers of the head of the place of detention and the possibility of his or her criminal liability for knowingly unlawful detention of a person in custody (Article 414 of the Criminal Code) constitute an additional guarantee for the protection of individual rights in criminal proceedings. It should also be borne in mind that compliance with the time limits regulated by parts 1 and 2 of Article 139 of the CPC is primarily the responsibility of the officer conducting the inquiry, the investigator handling the case in which the suspect has been remanded in custody, and the head of the place of detention.
• Within the meaning of the provisions of Articles 149 and 150 of the CPC, the heads of the administrations of places of detention are the heads of pre-trial detention facilities, temporary detention facilities and guardhouses.
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• 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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