Commentary on Article 161. Seizure of Property of the Criminal Procedure Code of the Republic of Kazakhstan

• 1. For the purpose of ensuring the enforcement of a judgment with regard to a civil claim, other property-related penalties, or possible confiscation of property, the person conducting the pre-trial investigation shall take measures to impose seizure on property.
• If grounds for securing a civil claim arise at the stage of the judicial investigation, the court shall have the right to take measures to secure it before the judgment enters into legal force.
• In cases that admit no delay, the person conducting the pre-trial investigation shall have the right, with the consent of the prosecutor, to impose a temporary restriction on the disposal of property for a period not exceeding ten days, with notification to the owner of the property within twenty-four hours, provided that their identity has been established.
• Upon expiry of the period for which the restriction on the disposal of property was imposed, the person conducting the pre-trial investigation shall issue a resolution initiating a motion before the court for the seizure of property in accordance with the procedure provided for in Article 162 of this Code, or lift the imposed restriction.
• The owner of the property shall not be notified of the imposition of a temporary restriction on the disposal of property belonging to them in the following cases:
• 1) in criminal cases involving terrorist or extremist crimes;
• 2) in criminal cases involving crimes committed by a criminal group;
• 3) where notifying the owner of the property of the imposed temporary restriction on its disposal creates a threat of disclosure of information concerning covert investigative actions being conducted in the criminal case.
• 2. Seizure of property consists of a prohibition addressed to the owner or possessor of the property against disposing of such property and, where necessary, using it, or the confiscation of the property and its transfer for safekeeping.
• 3. The procedure for inspecting and storing property subject to confiscation shall be determined by Article 221 of this Code.
• 4. Measures to secure the enforcement of a judgment with regard to a civil claim by seizing the property of a suspect, accused person, or persons who bear material liability by law for their actions and who are creditors of financial organizations whose obligations are subject to restructuring in the cases provided for by the laws of the Republic of Kazakhstan regulating the activities of financial organizations shall not be permitted.
• 5. The value of property subject to seizure for the purpose of securing a civil claim filed by a civil claimant or prosecutor may not exceed the amount of the claim.
• 6. When determining the share of property subject to seizure belonging to each of several suspects, accused persons, or persons liable for their actions, the degree of participation in the commission of the criminal offense attributed to the suspect or accused person shall be taken into account; however, seizure to secure a civil claim may be imposed on the property of one of the relevant persons in its entirety if the others have no property.
• 7. Seizure may not be imposed on property constituting essential necessities or on other items, the list of which is determined by the legislation of the Republic of Kazakhstan.
• The imposition of a temporary restriction on the disposal of property, restrictions on the execution of transactions and other operations involving property, and the seizure of money held in bank accounts intended for the crediting of benefits and social payments made from the state budget and (or) the State Social Insurance Fund, housing payments, assets of the Social Health Insurance Fund held in bank accounts, money held in bank accounts with housing construction savings banks in the form of housing construction savings accumulated through the use of housing payments, money held in bank accounts with second-tier banks in the form of savings for the capital repair of the common property of a condominium facility, except for enforcement based on court decisions in cases involving non-performance of obligations under contracts concluded for the purpose of carrying out capital repairs of the common property of a condominium facility, money deposited under the terms of a notary deposit, money held in bank accounts under an educational savings deposit agreement concluded in accordance with the Law of the Republic of Kazakhstan “On the State Educational Savings System,” money belonging to banks, insurance (reinsurance) organizations, and voluntary funded pension funds that have been deprived of their licences by the authorized state body and (or) are undergoing compulsory liquidation, and money held in the current account of a private bailiff intended for the safekeeping of amounts recovered in favour of claimants shall not be permitted.
• The provision of the second paragraph of this part shall not apply to restrictions imposed by the authorized body in the field of enforcement of enforcement documents and its territorial bodies on the suspension of debit transactions on the specified current account intended for the safekeeping of amounts recovered in favour of claimants, belonging to a private bailiff whose licence has been suspended or terminated or who has been deprived of their licence.
• 8. Seizure may be imposed on property held by other persons if there are sufficient grounds to believe that it was obtained as a result of the criminal actions of a suspect or accused person, or was used or intended to be used as an instrument or means of committing a criminal offense, or for financing extremism, terrorism, an organized group, an illegal military formation, or a criminal community.
• 9. In cases where there are grounds to believe that property subject to seizure may be concealed or lost, the person conducting the pre-trial investigation shall have the right, before obtaining court authorization, to suspend transactions and other operations involving the property or seize it, notifying the prosecutor and the court within twenty-four hours.

 Note. Article 161 was amended by the Laws of the Republic of Kazakhstan dated 26 July 2016 No. 12-VI (shall enter into force upon the expiry of thirty calendar days after the date of its first official publication); dated 5 July 2017 No. 88-VI (shall enter into force upon the expiry of ten calendar days after the date of its first official publication); dated 21 December 2017 No. 118-VI (shall enter into force upon the expiry of ten calendar days after the date of its first official publication); dated 12 December 2017 No. 114-VI (shall enter into force from 1 January 2018); dated 28 December 2018 No. 208-VI (shall enter into force upon the expiry of ten calendar days after the date of its first official publication); dated 26 December 2019 No. 284-VI (shall enter into force upon the expiry of ten calendar days after the date of its first official publication); dated 27 December 2019 No. 292-VI (for the procedure for entry into force, see Article 2); dated 26 June 2020 No. 349-VI (shall enter into force upon the expiry of ten calendar days after the date of its first official publication).

 According to the Civil Code of the Republic of Kazakhstan, property is an object of civil rights and includes: things, money, including foreign currency, financial instruments, works, services, materialized results of creative and intellectual activity, trade names, trademarks and other means of individualization of goods, property rights, and other property (paragraphs 1—2 of Article 115 of the Civil Code). By their characteristics, property may be immovable (immovable things, real estate), while property not classified as real estate, including money and securities, is recognized as movable property (Article 117 of the Civil Code).

 Within the meaning of the provisions of Part 1 of Article 161 of the Criminal Procedure Code, seizure of property is carried out: in criminal cases in which a civil claim has been filed by a victim of a crime and other persons; where confiscation of property is provided for as a penalty for the crime under the provisions of the Special Part of the Criminal Code (Article 48 of the Criminal Code); and where it is necessary to recover procedural costs (state monetary expenses incurred in connection with the criminal case) from the convicted person (Articles 177—178 of the Criminal Procedure Code).

 Seizure of property upon the emergence of the above-mentioned grounds may take place during the pre-trial investigation and at the second stage of the main court hearing — during the judicial investigation.

 Moreover, in order to guarantee the securing of property-related recoveries in any form, the law permits the imposition of a temporary restriction on the disposal of the relevant property (a legally secured ability to determine the legal fate of property) by a resolution of the criminal prosecution body, with the consent of the prosecutor, for a period not exceeding ten days, until the act of seizure of property is fully formalized with the authorization of the investigating judge (Part 1 of Article 161 of the Criminal Procedure Code, paragraphs 1—2 of Article 188 of the Civil Code), for example, restricting the disposal of money held in a bank (Article 740 of the Civil Code).

At the same time, where information exists indicating that property may be concealed or otherwise removed from the possibility of seizure, such property may, pursuant to a resolution of the pre-trial investigation body, be confiscated or all transactions and other operations involving it may be prohibited (suspended) before obtaining authorization from the investigating judge in accordance with the established procedure, with notification thereof to the prosecutor and the investigating judge within twenty-four hours (Part 9 of Article 161 of the Criminal Procedure Code).

 Alongside the above, paragraph 5 of Part 1 of Article 161 of the Criminal Procedure Code provides for exceptions in which the pre-trial investigation body does not notify the owner of the property of the fact that a temporary restriction on the disposal of their property has been imposed. These exceptions are based on the particular danger of the crimes, the commission of crimes by a criminal group, and the conduct of covert investigative actions in criminal cases. These exceptions are primarily aimed at ensuring the inadmissibility of disclosure of pre-trial investigation data in order to effectively resolve the objectives of criminal proceedings and are not associated with a violation of the rights and legitimate interests of participants in criminal proceedings (Part 1 of Article 8, Article 201 of the Criminal Procedure Code).

 It should also be noted that seizure of property, unlike a temporary restriction on the disposal thereof, may additionally include a prohibition on possession (a legally secured ability to exercise actual control over property) or use (a legally secured ability to derive its useful natural properties from property, as well as obtain benefits from it), including by moving the property to another location to ensure its preservation (Part 2 of Article 161 of the Criminal Procedure Code, paragraphs 1—2 of Article 188 of the Civil Code).

 With regard to the handling of property subject to seizure (inspection and storage), the provisions of Part 4 of Article 118 and Articles 220 and 221 of the Criminal Procedure Code should be followed, that is, the rules governing the inspection and storage of physical evidence (Part 3 of Article 161 of the Criminal Procedure Code).

 The statutory requirements stipulating that the value of property subject to seizure may not exceed the amount of the claim, that is, the monetary expression of the property claims filed by the civil claimant or prosecutor, are of considerable importance (Part 5 of Article 161 of the Criminal Procedure Code).

 The provisions of Part 6 of Article 161 of the Criminal Procedure Code are closely related to the subject matter of proof, that is, the circumstances to be established in the case (paragraphs 4 and 7 of Part 1 of Article 113 of the Criminal Procedure Code). The correct determination of the shares of property of accomplices in a crime that must be seized, and so forth, will depend on how thoroughly and accurately the nature and amount of the damage subject to compensation are established, as well as the circumstances affecting the degree and nature of the liability of the suspect or accused person.

 For a full understanding of the provisions of Part 7 of Article 161 of the Criminal Procedure Code, reference should be made to the Appendix to the Criminal Procedure Code, as well as Article 61 of the Law of the Republic of Kazakhstan dated 2 April 2010 “On Enforcement Proceedings and the Status of Bailiffs” (the list of property that may not be seized is provided in the commentary to the provisions of Article 670 of the Criminal Procedure Code).

 In the same context, the application of the provisions of paragraph 1 of Part 8 of Article 161 of the Criminal Procedure Code should be considered, as they are organically connected with the provisions of Article 48 of the Criminal Code, “Confiscation,” and Chapter 71 of the Criminal Procedure Code, “Proceedings on Confiscation Prior to the Pronouncement of a Judgment” (Articles 667—672 of the Criminal Procedure Code). Meanwhile, the provisions of paragraph 2 of Part 8 of Article 161 of the Criminal Procedure Code are linked to the provisions of Chapter 47 of the Civil Code of the Republic of Kazakhstan, “Obligations Arising as a Result of Causing Harm” (Articles 917—952), which stipulate the conditions and grounds for full compensation for damage (property and (or) non-property) caused by unlawful actions (inaction) to the property or non-property benefits and rights of individuals and legal entities, the obligation of a person who is not the person who caused the damage to compensate for it, and so forth.

 In other words, the above-mentioned provisions of the Criminal Code, Criminal Procedure Code, and Civil Code sufficiently clearly define the range of persons whose property may be seized, and they must be followed for the lawful and well-founded implementation of the requirements of Part 8 of Article 161 of the Criminal Procedure Code.

 The provisions of Part 4 of Article 161 of the Criminal Procedure Code contain a direct prohibition on imposing seizure on the property of suspects, accused persons, or persons bearing material liability for their actions who are creditors (lenders) of financial organizations (borrowers) whose obligations are subject to restructuring (revision of the terms for repayment of a loan) in accordance with the legislation regulating the activities of financial organizations. According to the Law of the Republic of Kazakhstan dated 4 July 2003 “On State Regulation, Control and Supervision of the Financial Market and Financial Organizations,” a financial organization is a legal entity engaged in entrepreneurial activities involving the provision of financial services (subparagraph 4 of Article 1). These include banks, insurance organizations, funded pension funds, stock exchanges, and so forth (see the Laws of the Republic of Kazakhstan dated 31 August 1995 “On Banks and Banking Activities in the Republic of Kazakhstan”; dated 18 December 2000 “On Insurance Activities”; dated 2 July 2003 “On the Securities Market”; dated 21 June 2013 “On Pension Provision in the Republic of Kazakhstan,” and so forth). Creditors of these financial organizations may include a national management holding, a national company, a national holding, banking and insurance holdings, major participants in financial organizations represented by individuals and legal entities, investors, and so forth.

 It should be noted that proceedings in cases involving the restructuring of financial organizations and organizations that form part of a banking conglomerate as a parent organization and are not financial organizations are regulated by Chapter 41 of the Civil Procedure Code. Cases involving the restructuring of financial organizations and organizations that form part of a banking conglomerate as a parent organization and are not financial organizations are considered by the specialized interdistrict economic court in accordance with the general rules provided for by the Civil Procedure Code, subject to the specific features established by the legislation of the Republic of Kazakhstan (Articles 349—354).

 Thus, from the moment a court decision on the restructuring of a financial organization enters into legal force: 1) the enforcement of previously adopted court and arbitration decisions granting claims in respect of obligations intended to be restructured is suspended; the claims of creditors of the financial organization whose obligations are intended to be restructured, filed before the entry into force of the court decision on the restructuring and during the restructuring period, are suspended; 2) enforcement against the property of the financial organization shall not be permitted. A copy of the court decision on the restructuring of a financial organization that has entered into legal force shall be sent by the court to the financial organization, the National Bank of the Republic of Kazakhstan, and the relevant territorial justice authorities (Part 2 of Article 352 of the Civil Procedure Code).

 Similarly, but with broader requirements, including an unconditional prohibition not only on imposing seizure on the money of the legal entities listed in paragraph 2 of Part 7 of Article 161 of the Criminal Procedure Code, but also on imposing temporary restrictions on the disposal of their property or restrictions on transactions and other operations involving property, are established by Part 7 of Article 161 of the Criminal Procedure Code (see also Article 51 of the Law “On Banks and Banking Activities in the Republic of Kazakhstan,” “Seizure and Enforcement Against Money and Property Held in a Bank”).

 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, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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