Commentary on Article 162. Procedure for Imposing Seizure on Property of the Criminal Procedure Code of the Republic of Kazakhstan

• 1. Where it is necessary to impose seizure on property, the person conducting the pre-trial investigation shall issue a resolution to initiate before the court a motion for the imposition of seizure on the property of the suspect or persons who, under the law, bear material liability for their actions.
• 2. Certified copies of the criminal case materials confirming the validity of the motion shall be attached to the resolution.
• 3. The resolution shall contain a brief description of the factual circumstances of the criminal offence, its legal classification, information about the suspect, accused person or person liable for damage caused by the criminal offence or by an act prohibited by the Criminal Code of the Republic of Kazakhstan committed by an insane person, the existence of a claim, if one has been filed, the value of the property proposed to be seized, its location, and conclusions regarding the necessity of imposing seizure on the property.
• 4. The resolution of the person conducting the pre-trial investigation to initiate a motion for the imposition of seizure on property, together with the materials attached thereto, shall be submitted to the investigating judge no later than forty-eight hours from the moment the property subject to seizure is identified. A copy of the resolution shall simultaneously be sent to the prosecutor.
• 5. Excluded by Law of the Republic of Kazakhstan dated 21 December 2017 No. 118-VI (shall be put into effect upon the expiry of ten calendar days after the date of its first official publication).
• 6. Excluded by Law of the Republic of Kazakhstan dated 21 December 2017 No. 118-VI (shall be put into effect upon the expiry of ten calendar days after the date of its first official publication).
• 7. Excluded by Law of the Republic of Kazakhstan dated 21 December 2017 No. 118-VI (shall be put into effect upon the expiry of ten calendar days after the date of its first official publication).
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• Footnote. Article 162 was amended by Law of the Republic of Kazakhstan dated 21 December 2017 No. 118-VI (shall be put into effect upon the expiry of ten calendar days after the date of its first official publication).
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• The provisions of Article 162 of the CPC regulate the procedural form for the preparation and submission by the person conducting the pre-trial investigation of a resolution to initiate a motion before the investigating judge for the imposition of seizure on property, prior to the criminal prosecution authority applying to the investigating judge.
• In general, the structure of procedural actions in this regard includes: the existence of a criminal case; the existence of materials indicating that a civil claim has been filed in the case; identification of the owner or possessor of the property that may be seized; establishment of the location of the property; issuance of a resolution in the form prescribed by law; and attachment to the resolution of copies of case materials containing evidence substantiating the imposition of seizure on property (Part 1 of Article 162 of the CPC).
• An important requirement of the law is the mandatory establishment of the location of the property that may, under the law, be seized, already at the time of issuing the resolution to that effect. Provided that this condition is met, the resolution shall be submitted to the investigating judge within forty-eight hours, once the exact location of the property is reliably known (Part 2 of Article 162 of the CPC).
• The resolution must reflect all the particulars inherent in this procedural decision, the characteristics of which are set out in the third paragraph of Part 1 of Article 162 of the CPC. Compliance with these legal requirements will make it possible to regard this document as lawful and justified.
• An absolute requirement of the law is the obligation of the head of the investigative department to carefully examine the case materials together with the investigator's decision before sending them to the investigating judge, in order to verify the legality and validity of the motion submitted, issue appropriate instructions that must be complied with, or exercise the powers provided for in Subparagraph 8) of Part 2 of Article 59 of the CPC (see also Part 4 of Article 59 of the CPC).
• The procedure for an investigator to appeal an instruction issued by the head of the investigative department refusing to support the motion of the person conducting the pre-trial investigation is governed by Part 4 of Article 59 of the CPC. It provides for the person executing the motion to apply to a higher-ranking head of the investigative department or to the prosecutor, while other participants in the criminal proceedings may apply to the head of the prosecution authority or to the investigating judge.
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• 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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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