Commentary on Article 150. Detention of Suspects, Accused Persons and Defendants Subjected to Detention as a Preventive Measure in Places of Detention for Detained Persons of the Criminal Procedure Code of the Republic of Kazakhstan
- 1. In cases where the transfer to a pre-trial detention facility of a suspect, accused person or defendant in respect of whom detention has been applied as a preventive measure is impossible due to the remoteness of the facility or the absence of proper transport routes, or due to the need to conduct investigative actions or for the court to hear the case, such persons may, pursuant to a decision of the person conducting the pre-trial investigation, approved by a prosecutor, an investigating judge or a court, be held for up to thirty days in temporary detention facilities, while military personnel may be held in guardhouses.
- The procedure and conditions for the detention of such persons shall be determined by legislation.
- 2. The transfer (conveyance) of a suspect, accused person or defendant in respect of whom detention has been applied as a preventive measure from one pre-trial detention facility to another pre-trial detention facility for the purpose of conducting investigative actions shall be carried out pursuant to a prosecutor's decision or a decision of the person conducting the pre-trial investigation, approved by a prosecutor.
- The provisions of Article 150 of the Criminal Procedure Code regulate actual procedural situations arising during the period in which detention is applied as a preventive measure: the permissibility of keeping a suspect, accused person or defendant in a temporary detention facility for up to thirty days before transfer to a pre-trial detention facility; and the transfer of these same persons from a pre-trial detention facility to a temporary detention facility for the same period. The circumstances justifying the temporary detention of the above-mentioned persons in a temporary detention facility are exhaustive (the remoteness of the pre-trial detention facility; the absence of proper transport routes for delivery to the pre-trial detention facility; the impossibility of daily transportation from the pre-trial detention facility for the purpose of conducting investigative actions or during the court's consideration of the case). The decision of an inquiry officer or investigator on the above-mentioned matters is approved (not sanctioned) by the prosecutor. At the request of the parties or on its own initiative, the investigating judge is entitled to resolve this matter simultaneously with the authorization of detention. The court hearing the case is entitled to resolve this matter when ordering detention at the judicial stages of proceedings. Since detention is applied at the pre-trial investigation stage with the authorization of an investigating judge, the decision approved by the prosecutor must, for information purposes, be sent to the relevant judge (see also Article 12 of the Law dated March 30, 1999, “On the Procedure and Conditions for the Detention of Persons in Special Institutions and Special Premises Ensuring Temporary Isolation from Society,” regarding this matter).
- According to the above-mentioned Law, a temporary detention facility is a special institution (subparagraph 2 of Article 2) intended for the detention of persons arrested on suspicion of committing criminal offences. Temporary detention facilities exist within the system of the internal affairs bodies and national security bodies and constitute their structural subdivisions (Article 9 of the aforementioned Law).
- The relevant Internal Regulations of temporary detention facilities have been approved by subordinate regulatory acts of the Minister of Internal Affairs and the Chairman of the National Security Committee.
- 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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