Commentary on Article 147. Detention in Custody of the Criminal Procedure Code of the Republic of Kazakhstan

• 1. Detention in custody as a preventive measure shall be applied only with the authorization of a judge and only in respect of a suspect, accused person, or defendant charged with committing a criminal offense for which the law provides for punishment in the form of imprisonment for a term exceeding five years, where it is impossible to apply other, less restrictive preventive measures. In exceptional cases, this preventive measure may be applied in respect of a person suspected, accused, or charged with committing a criminal offense for which the law provides for punishment in the form of imprisonment for a term of up to five years, if:
• 1) he or she has no permanent place of residence within the territory of the Republic of Kazakhstan;
• 2) his or her identity has not been established;
• 3) he or she has violated a previously imposed preventive measure or procedural coercive measure;
• 4) he or she has attempted to abscond or has absconded from the criminal prosecution authorities or the court;
• 5) he or she is suspected of committing a criminal offense as part of an organized group or a criminal community (criminal organization);
• 6) he or she has a criminal record for a previously committed grave or especially grave criminal offense;
• 7) there is information indicating that he or she is continuing criminal activity.
• 1-1. The circumstance provided for in subparagraph 1) of the first part of this Article may not constitute the sole ground for selecting detention in custody as a preventive measure.
• 2. Where it is necessary to select detention in custody as a preventive measure, the person conducting the pre-trial investigation shall, in accordance with Article 140 of this Code, issue a resolution initiating a motion before the court to obtain authorization for the application of this preventive measure. Certified copies of the criminal case materials confirming the validity of the motion shall be attached to the resolution.
• In the resolution initiating a motion before the court to obtain authorization for detention in custody, the person conducting the pre-trial investigation shall substantiate the reasons for selecting this preventive measure and the impossibility of applying less restrictive preventive measures.
• During the period of detention of a person suspected of committing a criminal offense, in accordance with the procedure provided for in Article 131 of this Code, the prosecutor shall have the right to examine the criminal case materials confirming the validity of the motion and shall have the right to interrogate the suspect at the place where he or she is being held.
• 3. Following examination of the motion submitted by the person conducting the pre-trial investigation, the prosecutor shall either agree with the motion or refuse to support it by means of a reasoned resolution and (or) decide on the selection of another preventive measure. A copy of the resolution shall be sent to the interested persons.
• 4. No later than eight hours before the expiration of the detention period, the prosecutor shall submit to the investigating judge the resolution initiating a motion for authorization of detention in custody, together with copies of the criminal case materials confirming the validity of the motion.
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• Repealed 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).
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• Note. Article 147 was amended by the Laws of the Republic of Kazakhstan dated November 7, 2014 No. 248-V (shall enter into force on January 1, 2015); dated July 3, 2017 No. 84-VI (shall enter into force upon the expiration of ten calendar days after the date of its first official publication); 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); dated July 12, 2018 No. 180-VI (shall enter into force upon the expiration of ten calendar days after the date of its first official publication); dated December 27, 2019 No. 292-VI (see Article 2 for the procedure for its entry into force).

Detention in custody is listed last among the preventive measures in subparagraph 7) of paragraph 1 of Article 137 of the CPC. This means that it is the strictest preventive measure that may be applied in respect of a suspect, accused person, or defendant.

Detention in custody may be selected throughout the entire pre-trial investigation, during the preparation of the case for trial by the court, and during the main court proceedings. The issue of detention in custody first arises in connection with the detention of a person as a suspect in accordance with Articles 128 and 131 of the CPC.

Naturally, before selecting this preventive measure, it is necessary to carefully examine the Criminal Code and ensure that the sanction prescribed for the act committed by the perpetrator of the criminal offense meets the requirements of Part 1 of Article 147 of the CPC, that is, that it provides for imprisonment for a term exceeding five years. The law does not recognize other types of criminal punishment as grounds for applying detention in custody.

While establishing this mandatory condition, the law also allows detention in custody to be selected under certain circumstances where the punishment for the committed criminal offense does not exceed five years of imprisonment, without establishing a minimum term for this type of criminal punishment.

The law establishes a total of seven circumstances under which a person may be placed in custody for a criminal offense punishable by imprisonment for a term not exceeding five years (subparagraphs 1–7 of paragraph 1 of Article 147 of the CPC).

Let us examine these circumstances.

The provisions of subparagraph 1) of paragraph 1 of Article 147 of the CPC apply to cases where the subject of a criminal offense has no place of residence within the territory of the Republic of Kazakhstan. This primarily concerns foreign nationals, stateless persons, and citizens of the Republic of Kazakhstan who, according to the case materials, permanently reside in another state. However, the CPC does not elevate this circumstance to the status of the sole and decisive ground that would unconditionally justify the application of detention in custody (Part 1-1 of Article 147 of the CPC).

The provisions of subparagraph 2) of paragraph 1 of Article 147 of the CPC concern persons who have committed criminal offenses and whose identity has not been established during the proceedings despite the measures taken, that is, persons who, for various reasons, lack identity documents.

The provisions of subparagraph 3) of paragraph 1 of Article 147 of the CPC apply to persons in respect of whom a particular preventive measure or procedural coercive measure (an obligation to appear when summoned, a prohibition on approaching) had previously been imposed in the case and who deliberately violated the obligations they had undertaken.

The provisions of subparagraph 4) of paragraph 1 of Article 147 of the CPC are based on the materials of the criminal case, including materials relating to cases suspended by the court or proceedings suspended during the pre-trial investigation, materials obtained through operational-search and counterintelligence activities and covert investigative actions, the fact that a person has been placed on a wanted list, including an international wanted list, and so forth.

The provisions of subparagraph 5) of paragraph 1 of Article 147 of the CPC are обусловлены the existence of reasonable suspicions, supported by the case materials, that a person committed a criminal offense as part of an organized group, criminal organization, criminal community, transnational organized group, transnational criminal organization, transnational criminal community, terrorist group, extremist group, gang, or illegal paramilitary formation (Part 3 of Article 31 of the Criminal Code, “Criminal Liability for Criminal Offenses Committed by a Group”).

The provisions of subparagraph 6) of paragraph 1 of Article 147 of the CPC characterize a person as someone who has previously committed a grave or especially grave criminal offense and has been convicted for it. This is confirmed by certificates concerning the availability or absence of information on criminal records in the databases of the Committee on Legal Statistics and Special Records of the Prosecutor General’s Office of the Republic of Kazakhstan and its territorial departments (see the Regulations for the State Service “Issuance of a Certificate of the Presence or Absence of a Criminal Record”: Order of the Prosecutor General of the Republic of Kazakhstan dated May 18, 2017 No. 49 “On Approval of the Regulations for State Services Provided by the Committee on Legal Statistics and Special Records of the Prosecutor General’s Office of the Republic of Kazakhstan and Its Territorial Departments”; Order of the Prosecutor General of the Republic of Kazakhstan dated July 27, 2015 No. 95 “On Approval of State Service Standards”).

The provisions of subparagraph 7) of paragraph 1 of Article 147 of the CPC apply where the case materials contain substantiated information obtained in the course of operational-search activities, counterintelligence measures, investigative actions, or covert investigative actions, indicating that the person continues to commit criminal offenses while at liberty.

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In essence, the procedural form for selecting detention in custody involves several different levels of consideration of the issue. This is entirely justified, since detention in custody substantially restricts an individual's constitutional right to liberty. In this regard, it is particularly important to prevent the unlawful and unjustified selection of this preventive measure.

First. The selection of detention in custody must arise from the criminal case materials and be supported by a body of relevant evidence.

Second. The suspect, accused person, or defendant must be clearly identified in the criminal case. This circumstance must be confirmed by the documents specified in Part 1 of Article 64, Part 1 of Article 65, Part 1 of Article 140, and Part 1 of Article 305 of the CPC. The first document in this regard is the resolution on the legal classification of the suspect's act, since, as noted above, the law permits the application of any preventive measure in respect of a suspect only after such a resolution has been issued (Part 2 of Article 140 of the CPC), except in cases where the suspect is detained and subsequently placed in custody before the resolution on the legal classification of the suspect's act is issued (Article 139 of the CPC).

Third. Having examined the case materials and concluded that the criminal case contains materials describing the conditions, grounds, and reasons for selecting detention in custody, the investigator shall issue a reasoned resolution initiating a motion before the court to obtain authorization for the application of this preventive measure. The resolution shall specify these circumstances, as well as other circumstances that make it possible to select precisely this preventive measure, and shall set out the reasons why less restrictive preventive measures cannot be applied (Part 2 of Article 147 of the CPC).

Fourth. After performing the above actions, the investigator shall send the following documents to the prosecutor: the resolution initiating a motion before the court and a certified copy of the criminal case (Part 2 of Article 147 of the CPC).

Fifth. Since the person may be detained, the materials must be submitted to the prosecutor in advance, but within the applicable detention periods, so that the prosecutor has an opportunity to examine the criminal case materials confirming the validity of the motion and, if necessary, interrogate the suspect (Part 2 of Article 147 of the CPC).

Sixth. Upon receiving the above-mentioned materials, the prosecutor is legally obliged to examine them carefully, having sufficient time at his or her disposal (Part 3 of Article 147 of the CPC).

Seventh. The principle of legality and the protection of individual rights explain the practical situation in which, while examining the case materials, the prosecutor has the right, but is not obliged, to additionally interrogate the suspect regarding the circumstances related to the criminal offense and taken into account when selecting detention in custody as a preventive measure (Parts 2–3 of Article 147 of the CPC). It appears that the prosecutor should conduct such an interrogation in all cases before making a decision on the investigator's resolution initiating a motion before the court to obtain authorization for the application of this measure. This is also important because, through such an interrogation of the suspect, the prosecutor gains an in-depth understanding of the circumstances of the criminal case and establishes the proper supervisory approach in the given criminal case during the pre-trial investigation.

Eighth. Following examination of the submitted case materials, the prosecutor shall have the right to make one of the following three decisions:

a) where the conditions, grounds, and reasons are present, taking into account the nature of the criminal offense and the personality of the suspect, the prosecutor may support the investigator's motion and forward the materials to the investigating judge;

b) conversely, if the case does not establish the conditions, grounds, reasons, and other circumstances confirming the necessity of selecting detention in custody, the prosecutor shall refuse to support the investigator's motion and release the suspect from custody and (or) decide on the selection of another preventive measure;

c) if, after examining the case materials, the prosecutor finds no evidence that the suspicion is substantiated and that the resolution on the legal classification of the person's act was lawfully issued in respect of that person, or that exceptional circumstances actually exist indicating the necessity of keeping that person in custody, the prosecutor shall refuse to support the investigator's motion and release the suspect from custody.

Ninth. The results of the prosecutor's examination shall in all cases be formalized as follows:

a) where the motion before the court to obtain authorization for the application of detention in custody is supported, the prosecutor's decision in the form of consent shall be certified by the prosecutor's signature in the introductory part of the resolution initiating the motion;

b) where a decision is made under Part 3 of Article 147 of the CPC to refuse to support the motion, the prosecutor shall issue a reasoned resolution and send it to the investigator and the head of the detention facility for execution;

c) in the event of refusal to support the motion, the prosecutor shall have the right to decide on the selection of another preventive measure instead of detention in custody (Part 3 of Article 147 of the CPC), for example, to instruct that materials be prepared for the selection of house arrest or bail, or to apply a preventive measure not involving deprivation of liberty.

The procedure for appealing against the prosecutor's resolution is governed by Article 106 of the CPC.

Under the meaning of the law, the submission of materials agreed upon with the prosecutor to the investigating judge shall be carried out directly by the prosecutor. The prosecutor is obliged to do so no later than eight hours before the expiration of the relevant detention period. In addition, the prosecutor is obliged to notify the suspect, his or her defense counsel, legal representative, the victim, and the victim's representative of the nature of any decision made on this matter (Part 3 of Article 147 of the CPC).

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