Commentary on Article 17. Inviolability of the Home of the Criminal Procedure Code of the Republic of Kazakhstan
The home is inviolable. Entry into a home against the will of the persons residing therein, as well as the conduct of an inspection and a search thereof, shall be permitted only in cases and in accordance with the procedure established by law.
The provision under consideration is based on Article 25 of the Constitution, which establishes the constitutional principle of criminal proceedings being examined herein. The concept of a home is provided for in subparagraph 49) of Article 7 of the CPC and encompasses all places of permanent and temporary residence of a person or persons.
The inspection of an area, premises, objects, documents, living persons, corpses, and animals constitutes an investigative action, by means of which traces of a criminal offence and other material objects may be discovered and identified, the circumstances of an incident may be clarified, and circumstances relevant to the case may also be established (Article 219 of the CPC). An inspection may be conducted at any stage of pre-trial investigation, and, when conducting an inquiry in cases in which a preliminary investigation is mandatory, it serves as an urgent investigative action (Part 1 of Article 196 of the CPC).
Thus, an inspection of residential premises is generally conducted only with the consent of the adult persons residing therein or with the authorization of an investigating judge. If the persons residing therein are minors or are persons who are knowingly suffering from mental or other serious illnesses, or if they object to the inspection, the person conducting the pre-trial investigation shall issue a ruling on a compulsory inspection, which must be authorized by an investigating judge. If authorization is refused, the inspection shall not be conducted (Part 13 of Article 220 of the CPC). Where residential premises coincide with the place where a criminal offence was committed and their inspection cannot be delayed, such inspection shall be conducted on the basis of an investigator's ruling, with the materials subsequently being forwarded to the prosecutor within twenty-four hours. Having immediately reviewed the submitted materials, the prosecutor shall forward them to the investigating judge for verification of their legality. If the prosecutor establishes that the inspection was conducted in violation of the law, the materials shall not be forwarded by the prosecutor to the investigating judge, and the prosecutor shall issue a reasoned ruling declaring it unlawful. The investigating judge shall verify the legality of the inspection conducted and issue a ruling declaring it lawful or unlawful, which shall be attached to the materials of the criminal case. If a decision is made that the inspection conducted was unlawful, its results may not be admitted as evidence in the case (Part 14 of Article 220 of the CPC).
In general, the rules governing the inspection of residential premises are established by Articles 220 and 224 of the CPC.
The inspection of premises, including residential premises, occupied by diplomatic missions has its own specific features and special rules (see the commentary on the provisions of Articles 1, 3 and 6 of the CPC). Such an inspection may be conducted only with the consent or at the request of the head of the diplomatic mission or a person acting in their place, and in their presence. The presence of a prosecutor and a representative of the Ministry of Foreign Affairs of the Republic of Kazakhstan is mandatory during the inspection (Part 17 of Article 220 of the CPC).
3. A search also belongs to the category of urgent investigative actions conducted at the initial stage of pre-trial investigation. Its purpose is to discover and seize objects or documents (evidence) relevant to the case. It may also be conducted to locate a wanted person, a human corpse, or property that may be confiscated pursuant to a court judgment. A reasoned ruling by the investigator on conducting a search must be authorized by an investigating judge (Part 1 of Article 254 of the CPC). In exceptional cases where there is a real concern that the object being sought and (or) subject to seizure may be lost, damaged or used for criminal purposes as a result of delay in its discovery, or that the wanted person may abscond, a search may be conducted without the authorization of an investigating judge in accordance with the procedure provided for in Part 14 of Article 220 of the CPC (Part 3 of Article 254 of the CPC). Searches in premises, including residential premises, occupied by diplomatic missions shall be conducted in accordance with the procedure analogous to that governing the inspection of such premises (see Part 17 of Article 220 of the CPC).
Alongside the inspection and search of a home, the Constitution also prohibits unlawful entry into a home. In accordance with paragraph 1 of Article 25 of the Constitution, entry into a home shall be carried out only in cases and in accordance with the procedure established by law. First and foremost, pursuant to Article 247 of the CPC, this constitutes a covert investigative action (covert entry into and (or) examination of a location), which is carried out by an authorized body through entry into residential, office or industrial premises, a building, structure, storage facility, vehicle or area of land, with their examination where necessary, as well as for the preparation and conduct of investigative actions.
The rules governing the possibility of entering a home are also provided for by the Law of the Republic of Kazakhstan dated September 15, 1994, “On Operational-Search Activities.” Entry into residential and other premises, buildings, structures, areas of land, vehicles and other technical means, and their examination, constitutes a special operational-search measure (subparagraph 5) of paragraph 3 of Article 11 of the aforementioned Law). Special operational-search measures shall be carried out exclusively with the authorization of a prosecutor. Authorization to conduct such measures, based on a ruling of the bodies carrying out operational-search activities, shall be granted by the Prosecutor General of the Republic of Kazakhstan and their deputies, the Chief Military Prosecutor, regional prosecutors and prosecutors equated to them (paragraph 4 of Article 12 of the aforementioned Law).
In cases that cannot be delayed and may lead to the commission of grave and especially grave crimes, as well as crimes being prepared and committed by an organized group, criminal community (criminal organization), transnational organized group, transnational criminal community (transnational criminal organization) or a stable armed group (gang), special operational-search measures may be conducted on the basis of a reasoned ruling issued by one of the heads of the relevant body carrying out operational-search activities, subject to notification of the prosecutor and subsequent obtaining of authorization within twenty-four hours from the moment the ruling is issued. This provision shall not apply when conducting special operational-search measures in respect of judges. Special operational-search measures in respect of a judge may be conducted only with the authorization of a prosecutor (paragraph 7 of Article 12 of the aforementioned Law).
Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishевich 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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