Commentary on Article 14. Inviolability of the Person of the Criminal Procedure Code of the Republic of Kazakhstan
1. No one may be detained on suspicion of committing a criminal offence, placed in custody, or otherwise deprived of liberty except on the grounds and in accordance with the procedure established by this Code.
2. Detention in custody and house arrest shall be permitted only in cases provided for by this Code and only with the authorization of a court, with the right of the person placed in custody or under house arrest to appeal to the court.
Without court authorization, a person may be detained for a period not exceeding forty-eight hours, and a minor for a period not exceeding twenty-four hours, except in cases where this Code expressly provides for the admissibility of detaining a person without court authorization for a period not exceeding seventy-two hours.
3. The compulsory placement of a person who is not being held in custody in a medical organization for the purpose of conducting a forensic psychiatric and (or) forensic medical examination shall be permitted only pursuant to a court decision.
4. Every detained person shall be immediately informed of the grounds for detention, as well as of the act provided for by criminal law of which that person is suspected.
5. The court, criminal prosecution authorities, the head of the administration of a place of detention, and a medical organization shall be obliged to immediately release a person who has been unlawfully detained or held in custody, or unlawfully placed in a medical organization, or who has been held in custody beyond the period prescribed by law or by a judgment.
6. None of the persons participating in criminal proceedings may be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
No one may be compelled to participate in procedural actions that create a danger to the person's life or health. Procedural actions that violate the inviolability of the person may be performed against the will of the person or their legal representative only in the cases and in accordance with the procedure expressly provided for by this Code.
The detention of a person in custody, as well as the detention of a person suspected of committing a criminal offence, must be carried out under conditions that exclude any threat to their life and health.
Damage caused to a citizen as a result of unlawful deprivation of liberty, detention under conditions dangerous to life and health, or cruel treatment shall be subject to compensation in accordance with the procedure provided for by this Code.
Footnote. Article 14 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 date of its first official publication).
Inviolability of the person is a principle of international law (Articles 3 and 9 of the Universal Declaration of Human Rights, Article 9 of the International Covenant on Civil and Political Rights) and a constitutional principle of criminal procedure (Article 16 of the Constitution). Every human being has the right to life, liberty and security of person (Article 3); no one shall be subjected to arbitrary arrest, detention or exile (Article 9), as proclaimed by the Universal Declaration of Human Rights. Everyone has the right to liberty and security of person; no one shall be subjected to arbitrary arrest or detention; no one shall be deprived of liberty except on such grounds and in accordance with such procedure as are established by law, as stated in paragraph 1 of Article 9 of the International Covenant on Civil and Political Rights. Furthermore, paragraph 2 of Article 9 of the ICCPR requires officials to inform arrested persons without delay of the legal grounds for their arrest and of all charges against them. Paragraph 5 of Article 9 of the ICCPR also contains a requirement that the State ensure an enforceable right to compensation for any damage caused by a violation of the provisions of Article 9 of the ICCPR. For example, this right includes compensation for detention without reasonable suspicion or for unjustified pre-trial detention where release on bail would have been appropriate. The provisions of international instruments have been reproduced in the Constitution. Everyone has the right to personal liberty; arrest and detention in custody shall be permitted only in cases provided for by law and only with the authorization of a court, with the right of the arrested person to appeal; without court authorization, a person may be detained for a period not exceeding seventy-two hours; every person who has been detained, arrested or charged with committing a crime shall have the right to use the assistance of a lawyer (defence counsel) from the moment of detention, arrest or the presentation of charges, respectively, as established by Article 16 of the Constitution.
The provisions of Article 14 distinguish three groups of cases that most closely express the essence of this principle and are regulated by the CPC: measures of procedural coercion, including detention and custody, which may be applied to a suspect, accused person or defendant during proceedings in a criminal case (Articles 128–165); the compulsory placement (against one's will, by force) of a person who is not being held in custody in a medical institution for the purpose of conducting a forensic psychiatric or forensic medical examination (Article 279); and the performance of investigative actions that violate the inviolability of the person (compulsory examination of a victim or witness, or compulsory collection of samples from a suspect, accused person and other persons) (Articles 223 and 268). Thus, the procedural decisions and actions mentioned above do not relate to the principal issues of the criminal case under investigation (Part 4 of Article 59, Part 6 of Article 62, Part 6 of Article 63 of the CPC), but substantially restrict personal liberty and the inviolability of the person and are therefore subject to special protection under the Constitution and the CPC.
A fundamental requirement of the law is that, when a person is detained on suspicion of committing a criminal offence, an official of the criminal prosecution authority must orally inform that person of the criminal offence on suspicion of which they have been detained, explain their right to invite defence counsel, their right to remain silent, and the fact that anything they say may be used against them in court. If the detained person does not speak Kazakh and (or) Russian, etc., their rights shall be explained in the presence of an interpreter and defence counsel before the commencement of questioning as a suspect, and a corresponding note shall be made in the interrogation record (Part 1 of Article 131 of the CPC).
Unlike the placement of a suspect in custody, detention is generally applied to a person suspected of committing a crime punishable by deprivation of liberty; it is of a short-term nature (as a rule, not exceeding forty-eight hours; in the case of detention of minors, not exceeding twenty-four hours; and in certain cases provided for by the CPC, not exceeding seventy-two hours); it does not require authorization from a prosecutor or a court; its purpose is to prevent the commission of a crime and resolve the issue of applying a preventive measure in the form of detention in custody to the person. In addition, it is aimed at ensuring proceedings in respect of a criminal misdemeanour where there are grounds to believe that the person may abscond or commit a more serious act (Part 1 of Article 128 of the CPC). Furthermore, the detention of a suspect may be carried out exclusively by criminal prosecution authorities (Part 2 of Article 128 of the CPC). A distinction may also be drawn on the basis of the substantive legal conditions (grounds) for detention, placement in custody and other characteristics, which are provided for by the CPC.
The procedure and conditions for holding persons suspected and accused of committing crimes in custody in special institutions, guarantees of their rights and legitimate interests, as well as the rights and duties of employees of places of detention, are regulated in detail by the Law of the Republic of Kazakhstan dated March 30, 1999, “On the Procedure and Conditions for Detaining Persons in Special Institutions and Special Premises Ensuring Temporary Isolation from Society.” Detention in special institutions (pre-trial detention facilities and temporary detention facilities) is carried out in accordance with the principles of legality, the presumption of innocence, equality of citizens before the law, humanism, respect for the honour and dignity of the person, and the norms of international law, and must not be accompanied by actions intended to cause physical or mental suffering to suspects and accused persons held in special institutions (paragraphs 11–12 of Article 2, Articles 4–5 of the said Law).
The principle of inviolability of the person is intrinsically linked to the principle of respect for the honour and dignity of the person and is also protected by the provisions of criminal, criminal procedural and civil legislation (see the commentary on Article 13 of the CPC). Damage caused to a person as a result of unlawful detention, custody, house arrest, temporary removal from office, placement in a special medical organization, conviction, or the application of compulsory medical measures shall be compensated in full from budgetary funds, irrespective of the fault of the authority conducting the criminal proceedings (Articles 37–42 of the CPC).
At the same time, the unlawfulness of actions by the authorities conducting criminal proceedings is established by a court judgment or ruling, or by a resolution issued by an inquiry body, a preliminary investigation body or a prosecutor (paragraph 2 of Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999, “On the Practice of Applying Legislation on Compensation for Damage Caused by Unlawful Actions of Authorities Conducting Criminal Proceedings”). Accordingly, the application of Articles 37–42 of the CPC extends to cases where damage has been caused by unlawful actions of authorities conducting criminal proceedings to persons detained on suspicion of committing a crime, or to suspects, accused persons, defendants, convicted persons or acquitted persons. The list of persons entitled to compensation for damage caused by authorities conducting criminal proceedings, as specified in Article 38 of the CPC, is exhaustive. The issue of compensation for damage caused to other persons who participated in judicial proceedings in the case (witnesses, attesting witnesses, interpreters, etc.) shall be resolved in accordance with the procedure for civil proceedings (paragraph 3 of Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999, “On the Practice of Applying Legislation on Compensation for Damage Caused by Unlawful Actions of Authorities Conducting Criminal Proceedings”).
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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