Commentary on Article 163. Procedure for Authorizing the Seizure of Property under the Criminal Procedure Code of the Republic of Kazakhstan

1. The authority to authorize the seizure of property shall belong to the investigating judge and, in the cases provided for in subparagraphs 2) and 3) of part seven of Article 107 of this Code, to judges of regional courts and courts equated thereto.

2. The ruling of the person conducting the pre-trial investigation to initiate a motion for the seizure of property shall be considered individually by the investigating judge at the place where the pre-trial investigation is conducted or at the place where the property of the suspect or accused is discovered, within twenty-four hours from the moment the materials are received by the court.

3. Excluded by Law of the Republic of Kazakhstan No. 118-VI dated December 21, 2017 (shall enter into force upon the expiration of ten calendar days after the date of its first official publication).

4. Having considered the motion for authorization of the seizure of property, the investigating judge shall issue a ruling authorizing or refusing to authorize the seizure of property.

When deciding on the seizure of property in order to ensure the possible confiscation of property, the investigating judge must indicate the factual circumstances establishing that the property belongs to the suspect or accused and was used by that person in the commission of a criminal offense or was obtained as a result of its commission.

Where reliable information exists that the property was obtained through criminal activity, but it is not possible to identify such property, the investigating judge shall have the right to seize other property equivalent in value.

5. The ruling on the seizure of property shall specify the property subject to seizure, to the extent it has been identified during the pre-trial proceedings, as well as the value of the property sufficient to secure the civil claim and information concerning the place where the property is to be stored until a final decision is made in the case.

Where necessary, the ruling on the seizure of property may be sent to the relevant authorized body for enforcement.

6. The investigating judge's ruling on the seizure of property shall be immediately sent to the person conducting the pre-trial investigation, the suspect or the person liable for damage caused by a criminal offense or by an act prohibited by the Criminal Code of the Republic of Kazakhstan committed by an insane person, as well as to the prosecutor, civil claimant and victim.

7. The judge's ruling on the seizure of property shall be enforced by a court bailiff.

8. In enforcing the judge's ruling on the seizure of property, the court bailiff shall verify the existence of the property, draw up an inventory thereof, provide written warnings to the persons in whose possession the property is held regarding the inadmissibility of misappropriating it or carrying out any other actions involving the property, or draw up an act confirming the absence of property that may be seized.

9. A specialist who determines the value of the property may participate in the seizure of property.

10. The owner or possessor of the property shall have the right to propose which items should be seized first.

11. The property subject to seizure may be confiscated or, at the discretion of the investigating judge, transferred for safekeeping to a representative of the local administration, a housing maintenance organization, the owner of the property, or another person. Such persons must be warned of their liability for ensuring the safekeeping of the property, and a written undertaking to that effect shall be obtained from them.

12. When money and other valuables held in accounts and deposits with banks and credit institutions are seized, debit transactions on the relevant account shall be suspended within the limits of the funds subject to seizure.

13. The seizure of property shall be cancelled when the need for this measure ceases to exist. At the pre-trial investigation stage, the cancellation of the seizure of property authorized by the investigating judge shall be carried out on the basis of a reasoned ruling of the criminal prosecution authority, with the consent of the prosecutor.

Note. Article 163 was amended by Law of the Republic of Kazakhstan No. 118-VI dated December 21, 2017 (shall enter into force upon the expiration of ten calendar days after the date of its first official publication); and Law of the Republic of Kazakhstan No. 180-VI dated July 12, 2018 (shall enter into force upon the expiration of ten calendar days after the date of its first official publication).

1. Unlike the provisions of Article 162 of the CPC, the provisions of Article 163 of the CPC regulate the procedural form of authorization by the investigating judge of the seizure of property. In addition to investigating judges who are entitled to make such a decision, the law also identifies judges of regional courts or courts equated thereto, who, following an appeal or a review based on a prosecutor's motion of the investigating judge's ruling granting or refusing authorization for the seizure of property, shall have the right, where grounds exist, to amend or revoke such ruling and issue a new decision on the matter.

2) The procedure for consideration by an investigating judge of a motion filed by a criminal prosecution authority comprises the following stages: its receipt; the scheduling and holding of a court hearing within twenty-four hours from the moment the materials are received by the court; and the issuance, in the deliberation room, of a ruling authorizing or refusing to authorize the seizure of property (parts 2–4 of Article 163 of the CPC).

3. The content of the investigating judge's ruling must contain a reasoned conclusion that the property subject to seizure belongs to the perpetrator of the crime and is directly related to the crime committed, that is, it was used in the commission of the crime or obtained as a result thereof. Subject to compliance with the above conditions, following the court hearing, seizure may also be imposed on other property equivalent in value to the property originally intended to be seized, where the latter could not be identified during the investigation. This issue must be raised in the motion, with reference to and submission of case materials containing objective evidence (part 4 of Article 163 of the CPC).

4. The mandatory provisions of the ruling include a description of the property to be seized, its value and its correspondence to the amount of the civil claim filed, as well as an indication of the place where the property is to be stored until the completion of the proceedings in the case (part 5 of Article 163 of the CPC).

5) After its adoption, for the purpose of ensuring the right to defense, this ruling shall be sent to the authorities and officials conducting the criminal proceedings, as well as to the persons specified in part 6 of Article 163 of the CPC and the suspect's defense counsel.

6. Unlike the procedure for seizing property during the pre-trial investigation, a different procedure applies when a court seizes property during the judicial consideration of a case. The court's ruling on this matter shall be enforced by a court bailiff. The procedure governing the bailiff's actions is regulated by parts 7–8 of Article 163 of the CPC.

7. Parts 9–12 of Article 163 of the CPC establish certain issues that may arise during the seizure of property by a person conducting the pre-trial investigation or by a court bailiff: the participation, where necessary, of a specialist for the valuation of property; the participation and position of the owner or possessor of the property regarding the order in which property is to be seized; the confiscation of property or its transfer for safekeeping; and the warning of persons responsible for storing the property about criminal liability under Article 425 of the Criminal Code for unlawful actions involving seized property, with a written undertaking being obtained to ensure its safekeeping.

It is important to bear in mind that property subject to seizure may be transferred for safekeeping to the relevant person only with the knowledge of the investigating judge (part 11 of Article 163 of the CPC).

8. The law specifically stipulates that the seizure of money and other valuables held in accounts and deposits with banks and other financial institutions restricts debit transactions only within the limits of the funds that have been seized (part 12 of Article 163 of the CPC). That is, debit transactions involving other funds that have not been subjected to seizure are not prohibited.

9) Where proceedings in a case are terminated on grounds that rehabilitate the person, or an acquittal is delivered, the seizure of property shall be cancelled. Where a criminal case is terminated on rehabilitating grounds during the pre-trial investigation, the seizure of property shall be cancelled by a reasoned ruling of the criminal prosecution authority with the consent of the prosecutor. No ruling by the investigating judge on this matter is required (part 13 of Article 163 and part 4 of Article 288 of the CPC).

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan, by Marat Chekishyevich 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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