Commentary on Article 151. Periods of Detention in Custody and the Procedure for Their Extension under the Criminal Procedure Code of the Republic of Kazakhstan

• 1. The period of detention in custody during pre-trial investigation may not exceed two months, except in exceptional cases provided for by this Code.
• 2. Where it is necessary to extend the period of detention in custody, authorized by a judge for a short period, up to two months, the prosecutor shall, one day before its expiry, submit a corresponding application to the investigating judge, together with additionally collected materials. If it is impossible to complete the investigation within a period of up to two months and there are no grounds for changing or revoking the preventive measure, this period may be extended, upon a reasoned application by the person conducting the pre-trial investigation, agreed upon with the district (city) prosecutor or an equivalent prosecutor, by the investigating judge for up to three months; and if it is impossible to complete the investigation within three months and further detention of the suspect or accused is necessary, upon a reasoned application by the person conducting the pre-trial investigation, agreed upon with the regional prosecutor and prosecutors equivalent thereto and their deputies, by the investigating judge for up to nine months.
• 3. Extension of the period of detention in custody beyond nine months, but for no more than twelve months, may be carried out by an investigating judge of a district or equivalent court solely due to the particular complexity of the case, in respect of persons suspected of committing particularly serious crimes, crimes as part of a criminal group, as well as other terrorist and (or) extremist crimes, upon a reasoned application by the head of the investigative department, or the prosecutor who has accepted the criminal case into his or her proceedings, or the head of the investigative or investigative-operational group, agreed upon with the regional prosecutor and prosecutors equivalent thereto.
• 4. Extension of the period of detention in custody beyond twelve months, but for no more than eighteen months, shall be permitted in exceptional cases in respect of persons suspected of committing particularly serious crimes, crimes as part of a criminal group, as well as other terrorist and (or) extremist crimes, by an investigating judge of a district or equivalent court, upon a reasoned application submitted by the head of the investigative unit of the central office of the criminal prosecution authority, or the prosecutor who has accepted the criminal case into his or her proceedings, or the head of the investigative or investigative-operational group, approved by the regional prosecutor or a prosecutor equivalent thereto and agreed upon with the Prosecutor General of the Republic of Kazakhstan or his deputies.
• 5. Further extension of the period of detention in custody shall not be permitted, and suspects and accused persons held in custody shall be released immediately.
• 6. An application for extension of the period of detention in custody for up to three months shall be submitted to the district (city) prosecutor and other prosecutors equivalent thereto for approval no later than ten days before the expiry of the period of detention in custody and shall be considered by the prosecutor within no more than three days from the date of its receipt.
• 7. An application for extension of the period beyond three months must be submitted to the prosecutor for approval no later than fifteen days before the expiry of the period of detention in custody and shall be considered by the prosecutor within no more than five days from the date of its receipt.
• 8. An application for extension of the period of detention in custody beyond twelve months must be submitted to the prosecutor for approval no later than twenty days before the expiry of the period of detention in custody and shall be considered within no more than five days.
• 9. Having considered the application for extension of the period of detention in custody, the prosecutor shall approve the resolution of the person conducting the pre-trial investigation and immediately forward it, together with the criminal case materials confirming the justification for extending the period of detention in custody, to the appropriate court, or shall issue a reasoned refusal to grant approval. If the prosecutor does not support the application for extension of the period of detention in custody, the suspect or accused shall be released immediately upon expiry of the period of detention in custody.
• 10. An application for extension of the period of detention in custody for up to three months shall be submitted to the court no later than seven days before the expiry of the period of detention in custody; an application for extension of the period of detention in custody beyond three months shall be submitted no later than ten days before its expiry; and an application for extension of the period of detention in custody beyond twelve months shall be submitted no later than fifteen days before its expiry.
• 11. An application for authorization of the period during which a suspect may remain in custody while reviewing the materials of a criminal case must be submitted to the prosecutor for approval no later than five days before the expiry of the period of detention in custody and shall be considered by the prosecutor within no more than one day from the date of its receipt.

Having considered the application for authorization of the period during which a suspect may remain in custody while reviewing the materials of the criminal case, the prosecutor shall approve the resolution of the person conducting the pre-trial investigation and immediately forward it, together with the criminal case materials confirming the necessity of authorizing the period of detention in custody, to the investigating judge of the district or equivalent court at the place where the pre-trial investigation was completed. If the prosecutor does not support the application for authorization of the period during which the suspect may remain in custody, the suspect shall be immediately released from custody.

12. An application for authorization of the period during which a suspect may remain in custody while reviewing the case materials shall be submitted to the investigating judge no later than three days before the expiry of the period of detention in custody.

- Note. Article 151 was amended by Law of the Republic of Kazakhstan dated 27 December 2019 No. 292-VI (for the procedure for its entry into force, see Article 2).

The provisions of Article 151 of the CPC primarily characterize the periods of detention in custody and the procedural form for extending them, involving the use by persons conducting pre-trial investigations of the powers of prosecutors at different levels. As a general rule, the standard period of detention in custody in a criminal case shall not exceed two months from the moment it is imposed (Part 1 of Article 151 of the CPC). Within the two-month period of detention in custody, the investigating judge is entitled to establish short periods of detention, extending them in accordance with the established procedure. An even shorter period of detention in custody is calculated when this preventive measure is applied to a suspect who has been placed in a temporary detention facility and subsequently remanded in custody with the authorization of an investigating judge. This period shall not exceed ten or thirty days from the moment of the suspect's actual apprehension. If, within this period, the suspect is not served with a resolution on the legal classification of his or her act, detention in custody shall be immediately revoked by the investigating judge (Part 1 of Article 139 of the CPC). Moreover, when the resolution on the legal classification of the suspect's act is announced to him or her, the issue of applying detention in custody as a preventive measure shall be reconsidered by the investigating judge in accordance with the procedure provided for in Article 147 of the CPC.

However, upon expiry, the standard two-month period of detention in custody may, in exceptional cases, be extended in advance, just like the periods of pre-trial investigation. The principal conditions for taking this step are the impossibility of completing the pre-trial investigation of the case in the form of preliminary investigation within a period of up to two months due to the complexity or particular complexity of the case, as well as the absence of grounds for changing or revoking detention in custody due to the commission by the suspect of particularly serious crimes, etc. These grounds for extending the period of detention in custody must exist simultaneously, rather than separately.

The impossibility of completing the investigation of a case is most often based on objective reasons: a large number of crimes (multiple episodes) are being investigated within the framework of the case, committed by a criminal group; the criminal activity covers a vast territory; various types of forensic examinations have been ordered, including inpatient examinations of various medical specializations; information on investigative requests sent to the competent institutions of foreign states under the procedure for providing legal assistance has not been received, etc. (Part 2 of Article 151 of the CPC).

The absence of grounds for revoking or changing detention in custody may be caused by a whole range of circumstances taken into account when selecting this preventive measure, which are either directly specified in the law or contained in the criminal case materials and make it impossible to decide on the application of another preventive measure during the investigation of the criminal case. These circumstances were examined in our commentary on Articles 136, 138 and 147 of the CPC (Part 2 of Article 151 of the CPC).

In all cases of extension of the period of detention in custody (regardless of the duration), this matter falls within the competence of the investigating judge of the district (city) or equivalent court (Article 152 of the CPC).

It is important to note that when the investigating judge once again extends a short period of detention in custody within the overall period of up to two months, additional criminal case materials collected as of the date of extension must be submitted to the investigating judge, together with the application, one day in advance. This is justified because, during the short period in which a person is held in custody within the overall period of up to two months, the circumstances relating to the progress of the criminal case may change significantly (Part 1 of Article 151 of the CPC).

Periods of detention in custody are extended on the basis of a reasoned (substantiated) application (resolution) by the investigator, with the approval, respectively, of the district (city) prosecutor or an equivalent prosecutor — for up to three months (the application must be submitted to the investigating judge seven days before the expiry of the period); and the regional prosecutor or an equivalent prosecutor — for up to nine months (the application must be submitted to the investigating judge ten days before the expiry of the period) (Parts 2, 6–8 and 10 of Article 151 of the CPC). When submitting an approved application for extension of the period of detention in custody during the suspect's review of the case materials, it must be submitted to the investigating judge no later than three days before the expiry of the period of detention in custody (Parts 11–12 of Article 151 of the CPC).

When extending the period of detention in custody beyond nine months, but for no more than twelve months, reasoned applications (resolutions) on the relevant matters shall be submitted to the investigating judge not by the investigator, but by the head of the investigative department, or the prosecutor who has accepted the criminal case into his or her proceedings, or the head of the investigative or investigative-operational group, fifteen days before the expiry of the period. In all cases, they shall agree upon such applications with the regional prosecutor or an equivalent prosecutor. As grounds for extending the period of detention in custody beyond nine months, the law specifies the particular complexity of the case due to the commission by the suspects of particularly serious and other dangerous crimes (Parts 3 and 10 of Article 151 of the CPC).

In exceptional cases, the law permits extension of the period of detention in custody beyond twelve months, up to eighteen months, if the suspects have committed particularly serious crimes, crimes as part of a criminal group, as well as other terrorist and (or) extremist crimes. In this case, reasoned applications (resolutions), approved by the regional prosecutor or an equivalent prosecutor and agreed upon with the Prosecutor General and his deputies, shall be submitted to the investigating judge by the head of the investigative unit of the central office of the criminal prosecution authority, or the prosecutor who has accepted the criminal case into his or her proceedings, or the head of the investigative or investigative-operational group (Part 4 of Article 151 of the CPC).

In all cases of extending the periods of detention in custody beyond two months, the law provides prosecutors with sufficient time, after receiving within the time limits established by law the decision of the person conducting the pre-trial investigation on this matter, to thoroughly examine the criminal case materials and decide whether to support or refuse to support the application of the investigator or another person conducting the preliminary investigation: no more than three days from the receipt of an application for extension of the period of detention in custody for up to three months (the application must be received by the prosecutor ten days before the expiry of the period of detention in custody); no more than five days when extending the period beyond three months (the application must be received by the prosecutor fifteen days before the expiry of the period of detention in custody); and no more than five days when extending the period beyond twelve months (the application must be received by the prosecutor twenty days before the expiry of the period of detention in custody) (Parts 6–9 of Article 151 of the CPC).

Above, we drew attention to the provisions of the law concerning the procedure to be followed when extending the period of detention in custody during the review of the materials of a completed criminal case. In this case, the law provides the person conducting the pre-trial investigation with time to submit the application to the prosecutor for approval in a timely manner (five days before the expiry of the period of detention in custody); the prosecutor shall consider it within no more than one day from the moment of its receipt (Parts 11–12 of Article 151 of the CPC).

Thus, a suspect may be held in custody for no more than eighteen months. This is an unequivocal requirement of the law. It is very important to bear in mind that, in the course of proceedings in a particular case, when detention in custody is imposed, its periods are extended, it is revoked, or it is imposed again, the entire period during which a person has been held in custody is always taken into account at every stage of the proceedings (including the time spent under house arrest, the period of detention, and the period of compulsory stay in a medical institution), and the total period must not exceed eighteen months.

Moreover, it is absolutely impermissible and unlawful for a suspect to remain in custody for a period exceeding the term of imprisonment prescribed as a punishment for the crime in connection with which the suspect was remanded in custody.

The participation in the court hearing considering the issue of extending the period of detention in custody of the prosecutor or authorized prosecutor with whom the application for extension of the period of detention of the person was agreed upon is mandatory (Part 1 of Article 152 of the CPC).

The running of the periods of detention in custody and their timely extension, within the meaning of Parts 4–5 of Article 152 of the CPC, must remain under the constant supervision of the head of the pre-trial detention facility. In this regard, we emphasize once again that this is an independent and neutral person who must act exclusively in accordance with the law whenever all procedural grounds for releasing the accused from custody exist (the periods have expired and no resolution of the investigating judge extending them or revoking detention in custody has been received).

Commentary of 2020 to 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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