Commentary on Article 153. Cancellation or Modification of a Preventive Measure of the Criminal Procedure Code of the Republic of Kazakhstan

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1. A preventive measure shall be cancelled when the need for it ceases to exist, or shall be changed to a less or more restrictive measure when the grounds and circumstances provided for in Articles 136 and 138 of this Code change.
2. The cancellation or modification of a preventive measure shall be carried out by a reasoned resolution of the body conducting the criminal proceedings.
3. A preventive measure selected with the approval or upon the instruction of the prosecutor during pre-trial proceedings in a criminal case may be cancelled or modified only with the consent of the prosecutor.
4. Appeals against, and review upon the prosecutor's motion of, a resolution of a criminal prosecution body concerning the modification or cancellation of a preventive measure shall be carried out in accordance with the procedure provided for in Articles 100–106 of this Code.
5. The cancellation or modification of a preventive measure authorized by an investigating judge shall be carried out with the authorization of the investigating judge, except for the cases provided for in Part Eight of Article 145 of this Code.
When a decision to terminate a criminal case or criminal prosecution is made by the person conducting the pre-trial investigation, the preventive measure shall be cancelled with the consent of the prosecutor.
6. An appeal against a resolution cancelling a preventive measure in the form of bail, detention in custody or house arrest shall be filed in accordance with the procedure provided for in Article 106 of this Code.
Note. Article 153 was amended by the Laws of the Republic of Kazakhstan dated 03.07.2017 No. 84-VI (shall enter into force upon the expiration of ten calendar days after the day of its first official publication); dated 11.07.2017 No. 91-VI (shall enter into force upon the expiration of ten calendar days after the day of its first official publication); dated 21.12.2017 No. 118-VI (shall enter into force upon the expiration of ten calendar days after the day of its first official publication).
The issue of a preventive measure, its selection, cancellation or modification is considered at all stages of the progress of a criminal case throughout the stages of criminal proceedings, and its resolution depends on the existence of specific grounds and circumstances in the case. In other words, a preventive measure once selected does not remain unattended or in an unchanged state (Part 1 of Article 153 of the CPC).
Since a preventive measure is applied on the basis of a resolution of the body conducting the criminal proceedings, it may accordingly be cancelled or modified by issuing a reasoned resolution (Part 2 of Article 153 of the CPC).
For example, after a resolution on the qualification of the suspect's act has been issued (where the person was detained before its issuance), or subsequently following its amendment or supplementation, new circumstances may objectively arise that may require the cancellation or modification of the preventive measure.
However, there are two exceptions to this matter, which are specified in Parts 3 and 5 of Article 153 of the CPC.
First. All preventive measures specified in Part 1 of Article 137 of the CPC, including those involving restrictions on personal liberty, if selected with the agreement of the prosecutor or upon the prosecutor's written instruction, may be cancelled or modified only with the prosecutor's written consent (Part 3 of Article 153 of the CPC).
Second. The issue of cancelling or modifying a preventive measure selected with the authorization of an investigating judge (house arrest, detention in custody, bail) is resolved somewhat differently. Thus, this concerns the complete cancellation of preventive measures or their replacement with other measures, or their mutual substitution. In such cases, the law permits the issue to be resolved on the basis of a motion by the criminal prosecution body, agreed upon with the prosecutor, and only with the authorization of the investigating judge (Part 5 of Article 153 of the CPC).
The law specifies cases in which there is no need to obtain authorization from an investigating judge: when a decision to terminate a criminal case or criminal prosecution is made by the person conducting the pre-trial investigation, a preventive measure in the form of detention in custody, house arrest or bail shall be cancelled with the consent of the prosecutor.
Obtaining the consent of the investigating judge in the above situation is not required because, due to the completion of proceedings in the criminal case at the pre-trial stages, the cancellation of these types of preventive measures must follow immediately.
The proviso contained in the first paragraph of Part 5 of Article 153 of the CPC also applies to the powers of the head of a detention facility or pre-trial detention centre, upon whom the law effectively imposes the obligation, in the event that a suspect or accused person deposits bail on the basis of a resolution issued by an investigating judge in accordance with the procedure set out in Part 8 of Article 148 of the CPC, to issue a resolution releasing the specified persons from custody and to provide written notification thereof to the investigating judge, the prosecutor and the person conducting the pre-trial investigation. They are also obliged, in accordance with Part 8 of Article 145 of the CPC, in the event that bail is deposited (pursuant to the resolution of the investigating judge), to explain to the suspect or accused person the obligations associated with bail and the consequences of failing to fulfil them.
A decision to cancel or modify a preventive measure on the basis of a resolution of a criminal prosecution body may be appealed and reviewed upon the prosecutor's motion in accordance with the procedure provided for in Articles 100–106 of the CPC, both by the prosecutor and the investigating judge, whereas decisions cancelling bail, house arrest or detention in custody may be appealed and reviewed upon the prosecutor's motion, in accordance with the procedure provided for in Article 106 of the CPC, only by the investigating judge (Part 4 of Article 153 of the CPC).

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 Kazakhstan National Academy of Natural Sciences, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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