Commentary on Article 148. Consideration by the Investigating Judge of Applications for Authorization of the Preventive Measure in the Form of Detention under the Criminal Procedure Code of the Republic of Kazakhstan

1. The authority to authorize detention belongs to the investigating judge and, in the cases provided for in subparagraphs 2) and 3) of part seven of Article 107 of this Code, to judges of regional courts and courts equated thereto.

2. The investigating judge, in compliance with the procedure established by Article 56 of this Code, shall consider the application for authorization of the preventive measure in the form of detention within a period not exceeding eight hours from the moment the materials are received by the court, with the participation of the prosecutor, the suspect, the accused, and their defense counsel.

The investigating judge shall provide the defense counsel with an opportunity to examine the materials received.

The legal representative and representative shall also be entitled to participate in the court hearing. Their failure to appear, provided that they have been duly notified by the court in a timely manner of the place and time of the court hearing, shall not prevent the hearing from being conducted.

Minutes shall be kept during the court hearing.

3. When deciding issues related to the authorization of detention, the investigating judge, in addition to examining the case materials relating to the circumstances to be taken into account when selecting the said preventive measure, shall verify the reasonableness of the suspicion that the person has committed a criminal offense.

Where necessary, the judge shall be entitled to request the criminal case.

4. Consideration by the investigating judge of an application for authorization of the preventive measure in the form of detention in the absence of the suspect or accused shall be permitted only in cases where they have been placed on the wanted list or are outside the territory of the Republic of Kazakhstan and evade appearing before the body conducting the criminal proceedings, provided that they have been duly notified of the time and place of the court hearing. If the suspect or accused is apprehended, they shall be brought before the investigating judge to consider the reasonableness of applying the selected preventive measure.

5. At the beginning of the hearing, the investigating judge shall announce which application is to be considered and explain to the persons appearing at the court hearing their rights and obligations. The prosecutor shall then substantiate the necessity of selecting detention as a preventive measure in respect of the suspect, after which the suspect, the accused, and the other persons appearing at the court hearing shall be heard.

During consideration of the prosecutor's application, the suspect, the accused, as well as their defense counsel acting in their interests, shall be entitled to submit an application for the application of another preventive measure provided for in part one of Article 137 of this Code.

6. If the investigating judge issues a ruling refusing to authorize house arrest or the application of bail, the prosecutor shall be entitled to file a petition against it in accordance with the rules established by Article 107 of this Code.

7. Following consideration of the application for authorization of the preventive measure in the form of detention of the suspect or accused, the investigating judge shall issue one of the following rulings:

1) authorizing detention;

2) authorizing detention for a period of up to ten days where there are insufficient grounds to authorize detention for a period of two months;

3) refusing to authorize detention. If authorization of this preventive measure is refused, the investigating judge shall be entitled to select another preventive measure provided for in part one of Article 137 of this Code.

7-1. In the ruling authorizing detention, the investigating judge shall specify the reasons for selecting this preventive measure and the impossibility of applying less stringent preventive measures.

8. When issuing a ruling authorizing the preventive measure in the form of detention, except in cases involving particularly grave crimes, the investigating judge shall be obliged to determine the amount of bail sufficient to ensure that the suspect or accused fulfills the obligations provided for in part three of Article 140 of this Code, except for the cases provided for in part nine of this Article.

The ruling of the investigating judge or court shall specify which obligations provided for in Article 140 of this Code shall be imposed on the suspect or accused if bail is deposited, the consequences of failure to fulfill such obligations, the justification for the amount of bail, as well as the possibility of its application.

The suspect, the accused, or another person shall be entitled to deposit bail at any time in the amount established in the ruling of the investigating judge or court authorizing the preventive measure in the form of detention.

9. When the investigating judge or court issues a ruling authorizing the preventive measure in the form of detention, bail shall not be established in the following cases:

1) where a person is suspected or accused of committing intentional criminal offenses resulting in the death of the victim;

2) where a person is suspected or accused of committing a criminal offense as part of a criminal group; terrorist and/or extremist criminal offenses; particularly grave criminal offenses provided for in Chapters 1, 4, 5, 11 and 17 of the Criminal Code of the Republic of Kazakhstan, as well as particularly grave criminal offenses committed during a state of emergency or in the course of mass riots; particularly grave military criminal offenses committed during wartime or in a combat situation;

3) where there are sufficient grounds to believe that the suspect or accused will obstruct the proceedings or abscond from the investigation and court;

4) where there is information indicating that the suspect or accused is continuing criminal activity;

5) where the suspect or accused has previously violated a preventive measure in the form of bail imposed in the criminal case under investigation.

10. The ruling of the investigating judge shall be immediately served on the person in respect of whom it has been issued and shall also be sent to the person conducting the pre-trial investigation, the prosecutor, the victim, and the head of the detention facility in which the suspect or accused is being held, and shall be subject to immediate execution.

11. A ruling authorizing or refusing to authorize the detention of a suspect or accused may be appealed or reviewed upon a petition by the prosecutor in accordance with the procedure provided for in Article 107 of this Code.

12. Consideration by a regional court or a court equated thereto of the issue of authorizing the detention of a suspect or accused in cases where a judge's ruling refusing to authorize detention has been overturned shall be carried out in accordance with the procedure provided for in Article 107 of this Code.

13. Following the issuance by the investigating judge or court of a ruling refusing to authorize the said preventive measure, a repeated application to the court for authorization of the preventive measure in the form of detention in respect of the same person in the same criminal case shall be permitted only if new circumstances arise justifying the necessity of detention.

14. When detention is applied as a preventive measure, the person conducting the pre-trial investigation shall be obliged to notify the relatives of the suspect and, where it is applied in respect of a foreign national, also the embassy, consulate, or other representative office of that state through the Ministry of Foreign Affairs of the Republic of Kazakhstan, in accordance with the procedure established by Article 135 of this Code.

Note. Article 148 was amended by the Laws of the Republic of Kazakhstan dated 31 October 2015 No. 378-V (effective from 1 January 2016); dated 3 July 2017 No. 84-VI (effective upon the expiration of ten calendar days after the date of its first official publication); dated 11 July 2017 No. 91-VI (effective upon the expiration of ten calendar days after the date of its first official publication); dated 12 July 2018 No. 180-VI (effective upon the expiration of ten calendar days after the date of its first official publication); and dated 27 December 2019 No. 292-VI (see Article 2 for the procedure for its entry into force).

The commented Article provides for a detailed procedural framework for the consideration by an investigating judge of the issue of applying detention. The provisions of the Article should be understood in conjunction with the general conditions governing the exercise of the powers of an investigating judge, as set out in Articles 55 and 56 of the Criminal Procedure Code.

Part 1 of Article 148 of the Criminal Procedure Code classifies both the investigating judge and a judge of a regional court or a court equated thereto as persons authorized to authorize detention. The latter shall be entitled, following consideration of complaints and petitions filed by the prosecutor against rulings of the investigating judge, to authorize detention if the investigating judge has refused to authorize detention (part 7 of Article 107 of the Criminal Procedure Code).

As a general rule, the decision to authorize the preventive measure in the form of detention shall be made by the investigating judge at the place where the pre-trial investigation is conducted or at the place where the suspect is apprehended, and in the cases provided for in Chapter 57 of the Criminal Procedure Code, at the location of the body that submitted the application to the court. Any subsequent extension of the period of detention shall be considered by the investigating judge at the place where the pre-trial investigation is conducted (paragraph 3 of Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan dated 24 January 2020, “On Certain Issues of Authorizing Preventive Measures”).

1. The issue of authorizing detention shall be considered at a court hearing, before the commencement of which the investigating judge is obliged to provide the defense counsel with an opportunity to examine the materials received (part 2 of Article 148 of the Criminal Procedure Code). Under the law, the mandatory participants in the court hearing are the prosecutor (who has supported the investigator's application by approving it), the defense counsel, the suspect, and the accused. Other persons (the victim, their representative, the legal representative of the suspect or accused), who are notified by the court of the court hearing, may also participate therein.

It should be borne in mind that although the law permits authorization of detention in absentia of the suspect or accused in cases where they have been placed on the wanted list or are outside the territory of the Republic of Kazakhstan and evade appearing before the body conducting the criminal proceedings, provided that they have been duly notified of the time and place of the court hearing, the participation of defense counsel in the court hearing when the investigating judge considers the application for authorization of detention shall be mandatory (paragraph 11 of Regulatory Resolution No. 1 of the Supreme Court dated 24 January 2020).

Since the investigating judge's ruling may be appealed to a higher court or reviewed upon a petition by the prosecutor, keeping minutes of the court hearing by the court clerk is mandatory in order to establish its legality, validity, course, content, and results (part 2 of Article 148 of the Criminal Procedure Code).

The fundamental position of the law is enshrined in part 3 of Article 148 of the Criminal Procedure Code. Since a court hearing before an investigating judge is not a trial court hearing the case on its merits, and the issue of detention is not the principal issue in the criminal case, part 3 of Article 148 of the Criminal Procedure Code expressly defines the limits of the investigating judge's examination of the materials of a criminal case that has not yet been completed: “...the investigating judge, in addition to examining the case materials relating to the circumstances to be taken into account when selecting the said preventive measure, shall verify the reasonableness of the suspicion that the person has committed a criminal offense.” This means that determining the guilt or innocence of the suspect or accused in committing a criminal offense does not fall within the competence of the investigating judge. The issue here is that the judge examines the case materials from the perspective of whether the case contains evidence unequivocally confirming the existence of the conditions, grounds, reasons, and other circumstances that must be taken into account when deciding whether to authorize detention. It should be recalled that the list of these conditions, grounds, reasons, and circumstances to be taken into account when selecting a preventive measure is specified in Articles 136, 138, and 147 of the Criminal Procedure Code, and, in cases involving the detention of a person, also in Articles 128 and 131 of the Criminal Procedure Code. In this regard, the Supreme Court specifically emphasized that a judge's failure to verify the reasonableness of the suspicion that a person has committed a criminal offense must be regarded as a substantial violation of criminal procedural law, resulting in the annulment of the ruling authorizing the preventive measure in the form of detention. The reasonableness of the suspicion that a person has committed a criminal offense shall be verified by the investigating judge throughout the entire pre-trial investigation, including when deciding on the extension of the period of detention, except for the extension of the period during the examination of the case materials (paragraph 10 of Regulatory Resolution No. 1 of the Supreme Court dated 24 January 2020).

Furthermore, as a reminder to all persons deciding on the selection of detention, the provisions of part 2 of Article 138 of the Criminal Procedure Code establish that, in the absence of the grounds listed in Article 136 of the Criminal Procedure Code, the gravity of the criminal offense committed cannot constitute the sole ground for selecting the preventive measure in the form of detention.

The Criminal Procedure Code also directly instructs the investigating judge that the ruling authorizing detention must specify the reasons for selecting this preventive measure and substantiate the impossibility of applying less stringent preventive measures (part 7-1 of Article 148 of the Criminal Procedure Code).

2. Despite the fact that the investigating judge has a copy of the criminal case materials before the court hearing begins, they are entitled to request the criminal case itself (part 3 of Article 148 of the Criminal Procedure Code). This is justified because, while the investigating judge is considering whether to authorize detention, proceedings in the case continue, and new information may emerge that requires a different approach to the application of this preventive measure.

3. The law permits consideration of the issue of authorizing detention in the absence of the suspect or accused in three exceptional cases: where, despite having been informed, they evade appearing at the court hearing; where they have officially been placed on the local, national, or international wanted list; and where they have left the country. Of fundamental importance is the fact that the law obliges the criminal prosecution authorities, in all cases where such a suspect or accused is apprehended, to bring them before the investigating judge for consideration of the reasonableness of applying the preventive measure previously selected in respect of them (part 4 of Article 148 of the Criminal Procedure Code).

In this regard, the Supreme Court provided the following important clarification: in a ruling authorizing the preventive measure in the form of detention in absentia, the investigating judge is obliged to specify that, if the detained person is brought to a detention facility, the head of that facility must immediately notify the body or person handling the criminal case and the supervising prosecutor thereof. At the same time, a person in respect of whom the preventive measure in the form of detention was previously authorized in absentia by the investigating judge shall, after being apprehended, be immediately brought before the investigating judge at the place where the pre-trial investigation is conducted for consideration of the issue of the reasonableness of applying detention. The period required to bring the suspect or accused to a special facility providing temporary isolation from society and to the investigating judge shall be included in the period of detention. If the immediate delivery of the detained person to the investigating judge at the place where the pre-trial investigation is conducted is difficult or would require a considerable amount of time, the issue of verifying the reasonableness of applying detention authorized in absentia may be considered by the investigating judge at the place where the person was apprehended. In general, consideration of the issue of the reasonableness of detention previously authorized in absentia by the investigating judge shall be conducted in a court hearing in accordance with the rules of Article 148 of the Criminal Procedure Code, with the participation of the prosecutor, the suspect, and defense counsel, within eight hours from the moment the application is received (paragraph 12 of Regulatory Resolution No. 1 of the Supreme Court dated 24 January 2020).

4. The structure of the court hearing before the investigating judge is described in parts 5–7 of Article 148 of the Criminal Procedure Code: opening the court hearing and announcing the grounds for holding it; explaining the rights and obligations to the participants in the court hearing; hearing the prosecutor regarding the application and the criminal case materials; mandatory hearing of the suspect, the accused, and other participants in the criminal proceedings who have arrived at the court hearing; and issuing a ruling in the deliberation room in accordance with the rules of part 2 of Article 344 of the Criminal Procedure Code.

5. Where there are sufficient grounds, when authorizing detention, the investigating judge shall be entitled to establish a shortened period of detention for the suspect or accused, but not exceeding ten days (part 7 of Article 148 of the Criminal Procedure Code).

6. During the hearing, the suspect, the accused, their defense counsel, legal representative, and representative shall be entitled to request that the investigating judge limit the preventive measure to house arrest, bail, or another preventive measure (part 5 of Article 148 of the Criminal Procedure Code).

7. Following consideration of the issue at the court hearing, where sufficient grounds exist, the investigating judge may limit the measure to house arrest, bail, or another preventive measure, issue the relevant ruling, or refuse to do so and authorize detention (parts 6–7 of Article 148 of the Criminal Procedure Code).

8. The provisions of part 8 of Article 148 of the Criminal Procedure Code require particular attention from the investigating judge. It is important to emphasize that if the investigating judge has authorized detention, they shall simultaneously be obliged, where there are sufficient grounds, to establish the amount of bail and substantiate the restrictions and obligations imposed on the suspect or accused in the event that bail is deposited, as well as the consequences of violating them for the suspect or accused and the bail provider.

9. It follows that if bail is deposited within the time limits established for its deposit in the relevant form, the suspect or accused shall be released from custody in accordance with the procedure provided for in part 5 of Article 153 of the Criminal Procedure Code. This is permissible on the basis of the initial ruling of the investigating judge on detention and the establishment of the amount of bail, or on the basis of a separate ruling of the investigating judge releasing the person from custody due to the deposit of bail, or on the basis of a ruling issued by the head of the detention facility with reference to part 8 of Article 145 of the Criminal Procedure Code.

10. However, in this matter, part 9 of Article 148 of the Criminal Procedure Code contains a fundamental reservation in the form of a group of cases in which the establishment of bail (its amount) in a ruling authorizing detention is not permitted.

Let us examine them. First and foremost, bail shall not be applied and, consequently, its amount shall not be established if the person has committed a particularly grave criminal offense (part 9 of Article 148 of the Criminal Procedure Code).

The rules of subparagraph 1) of part 9 of Article 148 of the Criminal Procedure Code apply to all intentional criminal offenses resulting in the death of the victim, provided for in the relevant Articles of Chapters 1, 3, 4, 5, 10, 12, 14, 17, and 18 of the Criminal Code.

The rules of subparagraph 2) of part 9 of Article 148 of the Criminal Procedure Code apply to persons who have committed criminal offenses as part of a criminal group, the forms of which are described in Article 31 of the Criminal Code, as well as terrorist and extremist criminal offenses and other particularly grave criminal offenses listed in this subparagraph.

The rules of subparagraph 3) of part 9 of Article 148 of the Criminal Procedure Code regulate cases where the case materials contain irrefutable evidence that the suspect or accused, while at liberty, will actively obstruct the pre-trial investigation, including by absconding.

The rules of subparagraph 4) of part 9 of Article 148 of the Criminal Procedure Code refer to cases where bail was previously applied to the suspect or accused, but they violated the restrictions and obligations associated with its selection (part 3 of Article 140 of the Criminal Procedure Code), and the issue of changing the preventive measure to detention arose.

11. After being issued, the ruling, indicating the right to appeal it or have it reviewed upon a petition by the prosecutor in accordance with Article 107 of the Criminal Procedure Code, shall be sent to the interested persons and immediately executed. The delivery of this ruling by the pre-trial investigation body to the suspect and notification of their relatives, as well as the embassy, consulate, or other representative office of the foreign state through the Ministry of Foreign Affairs of the Republic of Kazakhstan, if the suspect is a citizen of that state, shall be mandatory where detention is applied (Article 135, parts 1 and 14 of Article 148 of the Criminal Procedure Code).

12. Refusal to authorize detention does not at all mean that the bodies conducting the criminal proceedings are not entitled to raise the issue of obtaining authorization before the investigating judge again. If new circumstances arise, including those specified in part 9 of Article 148 of the Criminal Procedure Code and confirmed by the case materials, they may submit an application to the investigating judge for authorization of detention (part 13 of Article 148 of the Criminal Procedure Code).

13. There is one more clarification that investigating judges should bear in mind: the Supreme Court, in particular, stated that the preventive measure in the form of detention may not be applied to a person suspected or accused of committing criminal offenses listed in part three of Article 136 of the Criminal Procedure Code, except in cases where that person is suspected of committing a criminal offense as part of an organized group or a criminal community (criminal organization), or has attempted to abscond or has absconded from the criminal prosecution authorities or the court.

If a person is suspected or accused not only of committing a criminal offense in the field of economic activity, but also of another criminal offense provided for in the Special Part of the Criminal Code that does not preclude the application of detention, the judge shall be entitled to select this type of preventive measure where sufficient grounds exist (paragraph 6 of Regulatory Resolution No. 1 of the Supreme Court dated 24 January 2020).

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 National Academy of Natural Sciences of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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