Commentary on Article 146. House Arrest of the Criminal Procedure Code of the Republic of Kazakhstan

1. House arrest consists of isolating a suspect or accused person from society without holding them in custody, but subjecting them to restrictions imposed by a judge in accordance with the procedure provided for in Article 147 of this Code.

2. When house arrest is applied to a suspect, accused person or defendant, one or more of the following restrictions may be imposed:

1) a prohibition on leaving the dwelling entirely or at specified times;

2) a prohibition on conducting telephone conversations, sending correspondence and using means of communication, except in the cases provided for in subparagraph 5) of this paragraph;

3) a prohibition on communicating with certain persons and receiving anyone at one's residence;

4) the use of electronic monitoring devices and the imposition of an obligation to carry such devices on one's person;

5) the imposition of obligations to respond to monitoring telephone calls or other monitoring signals, to make telephone calls or to appear in person at a specified time before the body of inquiry or another body exercising supervision over the conduct of the suspect, accused person or defendant;

6) the establishment of surveillance over the suspect, accused person or their dwelling, as well as the guarding of their dwelling or premises designated for use as a dwelling;

7) other measures ensuring the proper conduct and isolation of the suspect or accused person from society.

Where necessary, supervision shall be established over the conduct of the suspect or accused person.

When supervising compliance by a person under house arrest with the established restrictions on leaving the dwelling, the body conducting the criminal proceedings shall have the right to check their presence at their place of residence at any time of the day or night. Such checks shall be conducted no more than twice during daytime hours and no more than once during nighttime hours. An official may enter the dwelling of a person under house arrest only with the consent of that person and the persons residing with them, and such presence shall not exceed thirty minutes.

3. The court order imposing house arrest shall establish the specific restrictions applicable to the suspect or accused person and shall also indicate the body or official responsible for exercising supervision.

4. The duration of house arrest and the procedure for its extension shall be determined in accordance with the rules established by Articles 151 and 547—551 of this Code.

5. The procedure for executing the preventive measure in the form of house arrest shall be determined by a joint order of the state bodies authorized to conduct pre-trial investigations.

Note. Article 146 was amended by Law of the Republic of Kazakhstan No. 180-VI dated 12 July 2018 (the amendment shall enter into force upon the expiration of ten calendar days after the date of its first official publication).

House arrest, as a more humane and preventive measure of restraint, should be regarded as an alternative to detention in custody. Therefore, the procedural form for imposing house arrest, its duration and the procedure for extending its term are determined according to the rules governing the imposition of detention in custody on a suspect or accused person (Parts 1 and 4 of Article 146 of the CPC).

House arrest may be imposed during pre-trial investigation, during the preparation of a case for trial by the court, and during the main court hearing.

The expression "house arrest" does not mean that the person against whom this measure has been imposed must necessarily remain in their own dwelling. The places where a person under house arrest may stay can vary considerably, provided that they ensure compliance with the legal requirement that the person be isolated from society without the necessity of placing them in custody. Sometimes the choice of such places is dictated by the need to apply security measures in respect of that person.

Authorization of house arrest falls within the competence of the investigating judge during pre-trial investigation and the court during the judicial stages. The procedural form for imposing house arrest at the pre-trial stage of criminal proceedings is governed by Articles 147—148 of the CPC, that is, by analogy with the conditions, grounds, sequence and procedure for imposing detention in custody.

The application of house arrest must necessarily be accompanied by the imposition of one or more restrictions on the suspect, accused person or defendant that contribute to achieving the objectives of the preventive measure. The list of restrictions is not exhaustive and depends on the gravity of the act and the personality of the subject of the criminal offence (subparagraphs 1)—7) of Part 2 of Article 146 of the CPC). These restrictions must be explained to the suspect or accused person and, where necessary, communicated to their family members.

At the same time, the Supreme Court clarifies and emphasizes that, when authorizing house arrest, courts should take into account that restrictions on the freedom of movement of a suspect or accused person and the prohibitions provided for in Part Two of Article 146 of the CPC must be applied within reasonable limits. Such restrictions must not prevent the person from maintaining contact with family members, communicating with their defence counsel, or carrying out actions essential to life, such as obtaining medical assistance, etc. House arrest may be applied at the actual place of residence of a suspect or accused person in another region of Kazakhstan that is not the place where the crime was committed or where the pre-trial investigation is being conducted (paragraph 19 of Regulatory Resolution No. 1 of the Supreme Court dated 24 January 2020).

Where grounds exist, the application of house arrest does not preclude the conduct of covert investigative actions in the interests of proving the circumstances to be established in the case (Chapter 30 of the CPC).

As a rule, during pre-trial investigation, supervision over the conduct of a person under house arrest and compliance with the conditions of house arrest is assigned to the criminal prosecution authorities, while during the judicial stages it is assigned to a specific pre-trial investigation body or its official, as indicated in the house arrest order (Parts 2 and 3 of Article 146 of the CPC).

Among the restrictions, the law provides for a prohibition on leaving the dwelling entirely or at specified times. Compliance by a suspect or accused person with this restriction may be checked at any time of the day or night (no more than twice during daytime hours and no more than once during nighttime hours), but the person conducting the check has no right to enter the dwelling of such persons. Entry into the dwelling for the purpose of checking whether a person is present at their place of residence, regardless of the reasons, is permitted only with the consent of the person being checked and the persons residing with them, and may last no longer than thirty minutes (Part 2 of Article 146 of the CPC).

Like bail, house arrest has certain specific features, including the involvement of a wide range of participants in criminal procedural activities in the process of its application (when it is imposed). Therefore, in the interests of criminal judicial practice, the Rules for the Execution of the Preventive Measure in the Form of House Arrest were approved by a joint order of the state bodies authorized to conduct pre-trial investigations (which entered into force on 1 January 2015). The joint order was issued by the Minister of Internal Affairs of the Republic of Kazakhstan on 29 August 2014 No. 564, the Prosecutor General of the Republic of Kazakhstan on 2 September 2014 No. 86, the Chairman of the National Security Committee of the Republic of Kazakhstan on 4 September 2014 No. 290, the Minister of Finance of the Republic of Kazakhstan on 11 September 2014 No. 394, and the Chairman of the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption on 12 September 2014 No. 4, and was registered with the Ministry of Justice of the Republic of Kazakhstan on 22 September 2014 under No. 9741.

The adoption of this order is provided for in Part 5 of Article 146 of the CPC.

It is appropriate to set out its main provisions, taking into account the new procedure for imposing house arrest in criminal cases.

Thus, according to the Rules for the Execution of the Preventive Measure in the Form of House Arrest, the place where a person is held under house arrest shall be determined by the body conducting the criminal proceedings. This may be a dwelling, hospital, clinic, boarding house, other premises or rented accommodation (paragraph 4).

It is permissible for relatives and other persons to provide a dwelling to a suspect, accused person or defendant for the duration of the criminal proceedings. Where relatives or acquaintances provide a dwelling to a suspect, accused person or defendant, their written consent, as well as the written consent of all adult persons residing with them, shall be required by the body conducting the criminal proceedings (paragraph 5).

Where a suspect, accused person or defendant enters into a lease agreement for a dwelling outside their permanent place of residence during the period of house arrest, the agreement shall specify the rights and obligations of the lessor and lessee, the terms and rules for using the dwelling, payment for utility services, the lessee's responsibility for maintaining the dwelling in proper condition, and matters relating to early termination of the agreement. The lessor must be expressly informed by the lessee of the principal purpose for which the dwelling is being rented, and subletting shall be prohibited (paragraph 6).

From the moment it is announced to the suspect, accused person or defendant, the order of the investigating judge (court) shall be immediately transmitted to the pre-trial investigation body and shall be subject to immediate execution (paragraph 7).

When house arrest is applied to a suspect, accused person or defendant, the investigating judge (court) shall indicate the body responsible for exercising supervision in accordance with the jurisdiction of criminal cases. Supervision over the execution of house arrest must not be assigned to the person conducting the pre-trial investigation. The body or official exercising supervision over compliance with the established restrictions shall not have the right, on their own initiative, to impose additional restrictions that infringe upon the rights of the suspect, accused person or defendant (paragraph 8).

Upon receipt of the order of the investigating judge (court) concerning a suspect, accused person or defendant residing within the territory served by that body, the head of the body of inquiry or the commander of the military unit shall determine the structural subdivision that will exercise supervision over the person's compliance with the restrictions imposed by the order of the investigating judge (court), and shall immediately instruct the head of that structural subdivision to register the suspect, accused person or defendant and ensure supervision over their conduct (paragraph 9).

Supervision over the suspect's, accused person's or defendant's compliance with house arrest and the restrictions established by the investigating judge (court) shall commence from the moment information concerning the imposition of the preventive measure is entered into the Register of Preventive Measures in the Form of House Arrest (paragraph 10).

Information concerning the imposition of the preventive measure shall be entered into the Register of Preventive Measures in the Form of House Arrest by the person assigned responsibility for exercising supervision. Similar information shall also be entered into integrated information retrieval systems, where available (paragraph 11).

The Register of Preventive Measures in the Form of House Arrest shall be kept in the duty unit and must be numbered, bound, registered with the records management subdivision and certified with the seal of the relevant body (paragraph 12).

Responsibility for monitoring the immediate registration of suspects, accused persons and defendants in respect of whom the preventive measure in the form of house arrest has been imposed shall be assigned to the heads of the structural subdivisions entrusted with exercising supervision over such persons (paragraph 13).

The body or official shall terminate supervision over the suspect's, accused person's or defendant's compliance with house arrest and the restrictions established by the investigating judge (court) upon the expiration of the period of validity of the order of the investigating judge (court), the modification or cancellation of this preventive measure, the delivery of a judgment, or the termination of the criminal case (paragraph 14).

Information concerning a suspect, accused person or defendant under house arrest shall be accumulated in a supervision and monitoring file concerning the person held under house arrest (paragraph 15).

The supervision and monitoring file shall contain: a copy of the order of the investigating judge (court); a copy of the letter notifying the interrogating officer, investigator or court, if the preventive measure was imposed during court proceedings, that the person has been registered; a copy of the record confirming that the order of the investigating judge (court) imposing the preventive measure was announced to the suspect (accused person, defendant) and that a copy thereof was delivered to them; a personal information form for the suspect, accused person or defendant under house arrest; information concerning the supervision of the conduct of the suspect, accused person or defendant under house arrest; reports on the results of checks of the conduct of the suspect, accused person or defendant; copies of letters notifying the prosecutor, interrogating officer, investigator or court, if the preventive measure was imposed during court proceedings, of violations by the suspect, accused person or defendant of the obligations imposed on them; other documents relating to supervisory activities and correspondence on this matter (paragraph 16).

The supervision and monitoring file shall be kept in an official office in a storage unit assigned to the employee (a safe or metal cabinet), which must be securely locked and sealed. After the order of the investigating judge or court ceases to be effective, the employee who directly supervised the conduct of the suspect, accused person or defendant shall submit the supervision and monitoring file to the records management subdivision for storage in accordance with the established procedure (paragraph 17).

The employee of the structural subdivision entrusted with directly supervising the conduct of the suspect, accused person or defendant shall:

immediately register the suspect, accused person or defendant in the Register of Preventive Measures in the Form of House Arrest. Similar information shall also be entered into integrated information retrieval systems, where available;

explain to the suspect, accused person or defendant the nature of the preventive measure imposed, as well as the restrictions and obligations specified in the order of the investigating judge (court). Draw up a record confirming that the order of the investigating judge (court) imposing the preventive measure has been explained to the suspect (accused person, defendant) and that a copy thereof has been delivered to them. The record shall be sent to the investigator, interrogating officer, prosecutor or court, if the preventive measure was imposed during court proceedings, and a copy of the record shall be attached to the supervision and monitoring file.

Issue a written warning to the suspect, accused person or defendant concerning the need to notify the duty unit and the employee of the structural subdivision directly supervising their conduct of any intention to leave the dwelling during a prohibited period, in particular, when receiving a summons from an investigator, interrogating officer or prosecutor, or a court summons; when leaving with the permission of the investigator, interrogating officer, prosecutor or court; in the event of illness or natural disasters.

Explain that, in the event of failure to comply with the imposed restrictions, the prosecutor or the investigator (interrogating officer), with the agreement of the prosecutor, shall have the right, in accordance with Article 153 of the CPC, to apply to the investigating judge (court) with a motion to change the preventive measure to detention in custody or to impose additional obligations;

photograph the suspect, accused person or defendant and prepare a personal information form. Complete the supervision and monitoring file within twenty-four hours;

notify the investigator, interrogating officer, prosecutor or court in writing within twenty-four hours that the suspect, accused person or defendant in respect of whom the preventive measure in the form of house arrest has been imposed has been registered. A copy of the notification shall be attached to the supervision and monitoring file.

The notification to the investigator, interrogating officer, prosecutor or court shall indicate the need for written notification (by fax or through email channels) in the following cases:

where the person is summoned or granted permission to leave the locality, such notification must be provided in advance, but no later than one day before the date on which the person leaves the place where house arrest is being served; where the preventive measure is changed, an acquittal is delivered or the criminal case is terminated, notification must be provided immediately, but no later than 24 hours after receiving information about the decision adopted;

where the suspect, accused person or defendant cannot be registered immediately because they are absent from the place of residence specified in the order of the investigating judge (court) and their whereabouts cannot be established within twenty-four hours, the investigator, interrogating officer, prosecutor or judge shall be notified accordingly, if the preventive measure was imposed during court proceedings;

where the order of the investigating judge or court imposes on the suspect, accused person or defendant an obligation to wear an electronic monitoring device, electronic tracking devices shall be used;

check the presence of the suspect, accused person or defendant at their place of residence at any time of the day or night. Such checks shall be conducted no more than twice during daytime hours and no more than once during nighttime hours. An official may enter the dwelling of a person under house arrest only with the consent of that person and the persons residing with them, and such presence shall not exceed thirty minutes.

Where information is available concerning a violation by the suspect, accused person or defendant of the conditions and restrictions, the authorized body shall conduct an additional check during nighttime hours;

draw up a report on the results of each visit to the dwelling of the suspect, accused person or defendant and, after reporting it to the head of the body of inquiry, attach it to the supervision and monitoring file.

Information concerning the results of measures taken to check the conduct of the suspect, accused person or defendant, any violations identified in the course of such checks and the measures taken in response thereto shall be recorded in the Register of Preventive Measures in the Form of House Arrest;

upon receipt of an order of the investigating judge (court) extending the period of house arrest or changing or cancelling the preventive measure, make the corresponding entry in the Register of Preventive Measures in the Form of House Arrest;

report the termination of supervision over the conduct of the suspect, accused person or defendant to the head of the body of inquiry by means of a reasoned report. With the written permission of the head of the body of inquiry, remove the person from the register, making the corresponding entry in the Register of Preventive Measures in the Form of House Arrest.

In exceptional cases, where the permanent place of residence at which the suspect, accused person or defendant is required to serve the preventive measure in the form of house arrest is located at a considerable distance from the body entrusted by the court with the responsibility for exercising supervision, the authorized body shall submit a motion requesting that supervision be carried out by the body of inquiry of the territorial internal affairs department. The said motion shall be sent to the prosecutor, who shall issue an instruction to conduct checks no later than 24 hours thereafter. In such cases, a duplicate of the supervision and monitoring file and the contact telephone numbers of the official and the body entrusted by the court with the monitoring responsibility must be attached to the instruction to conduct checks.

Upon receipt of an instruction to exercise supervision, the head of the territorial internal affairs body shall instruct the head of the structural subdivision to conduct checks at the place of residence of the suspect, accused person or defendant in respect of whom the court has imposed the preventive measure in the form of house arrest.

The head of the structural subdivision shall assign supervision to a specific official who, while conducting checks at the place of residence, shall complete the supervision and monitoring file and maintain constant communication with the supervising body regarding matters relating to this activity and any violations identified (paragraph 18).

Where circumstances are established indicating that the suspect, accused person or defendant has violated the restrictions imposed on them, the employee of the structural subdivision entrusted with directly exercising supervision shall:

record the fact of violation of the imposed obligations by drawing up a reasoned report. Obtain written explanations concerning the identified violations from the suspect, accused person or defendant, their family members, neighbours or other witnesses to the incident. Report the contents of the report and the explanations obtained to the head of the body of inquiry;

immediately inform the investigator, interrogating officer and prosecutor orally by means of communication about the identified violations and provide written notification no later than 24 hours thereafter; if the criminal proceedings are pending before a court, notify the court. Copies of the information letter and report shall be attached to the supervision and monitoring file;

where the suspect, accused person or defendant is absent from their place of residence, immediately notify the duty unit of the body exercising supervision and take measures to establish their whereabouts (paragraph 19).

Upon receiving information that the suspect, accused person or defendant is absent from the place where house arrest is being served and that their whereabouts have not been established, the person who imposed this preventive measure shall make a decision to change the preventive measure to detention in custody (paragraph 20).

Where a notification is received concerning a threat to the life or health of a suspect, accused person or defendant under house arrest at their place of residence (fire, accident, natural or man-made disaster, natural calamity, etc.), or concerning their illness and admission for inpatient treatment to a healthcare institution, the head of the body of inquiry shall immediately organize verification of the circumstances specified in the notification.

Verification of such notifications shall be carried out within a period not exceeding 24 hours from the moment they are received. If the information received is confirmed, a notification shall be sent to the investigator, interrogating officer, prosecutor or court, if the preventive measure was imposed during court proceedings, concerning the impossibility of further exercising supervision over the suspect, accused person or defendant at the location specified in the order (paragraph 21).

The head of the body of inquiry shall organize and supervise the work of structural subdivisions in executing the orders of the investigating judge (court). For this purpose, the head shall:

examine the state of affairs in subordinate subdivisions concerning the execution of orders of the investigating judge (court) with regard to the immediate registration of suspects, accused persons and defendants in respect of whom the preventive measure in the form of house arrest has been imposed, and the exercise of supervision over their conduct;

check the maintenance of the Register of Preventive Measures in the Form of House Arrest and the compilation of supervision and monitoring files at least once a week, making a corresponding entry indicating the date and personal signature (paragraph 22).

For improper performance of supervision over the execution of the preventive measure in the form of house arrest, the employee of the structural subdivision entrusted with directly exercising supervision shall bear disciplinary and other liability provided for by the legislative acts of the Republic of Kazakhstan (paragraph 23).

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishuly 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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