Commentary on Article 18. Inviolability of Property of the Criminal Procedure Code of the Republic of Kazakhstan
1. Property is guaranteed by law. No one may be deprived of their property except by a court decision.
2. The seizure of individuals’ bank deposits and other property, as well as their confiscation in the course of procedural actions, may be carried out in the cases and in accordance with the procedure provided for by this Code.
“No one shall be arbitrarily deprived of his property,” — as proclaimed in paragraph 2 of Article 17 of the Universal Declaration of Human Rights. Citizens of the Republic of Kazakhstan may privately own any property acquired legally (paragraph 1). Property is guaranteed by law (paragraph 2). No one may be deprived of their property except by a court decision (paragraph 3), — as established in Article 26 of the Constitution of the Republic of Kazakhstan. In accordance with the Civil Code (hereinafter referred to as the CC), the right of ownership is the right of a person, recognized and protected by legislative acts, to possess, use and dispose of property belonging to them at their own discretion (paragraph 1 of Article 188). The right of ownership is perpetual. The right of ownership of property may be compulsorily terminated on the grounds provided for by legislation (paragraph 5 of Article 118 of the CC). Compulsory seizure of property from its owner is not permitted, except in cases of its gratuitous seizure by judicial procedure, that is, confiscation as a sanction for the commission of a crime or other offense (subparagraph 4) of paragraph 2 of Article 249, Article 254 of the CC, Article 48 of the Criminal Code).
Confiscation of property, as an additional criminal penalty, consists of the compulsory and gratuitous seizure and transfer into state ownership of property owned by the convicted person, obtained through criminal means or acquired using funds obtained through criminal means, as well as property that constitutes an instrument or means of committing a criminal offense (Part 1 of Article 48 of the Criminal Code).
It should be noted that Article 48 of the Criminal Code, as amended by the Law of the Republic of Kazakhstan dated November 13, 2015, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Amnesty for Citizens of the Republic of Kazakhstan, Oralman and Persons Holding a Residence Permit in the Republic of Kazakhstan in Connection with the Legalization of Their Property,” entered into force on January 1, 2016 (Parts 1 and 3 of Article 467 of the Criminal Code).
The following shall not be subject to confiscation: 1) property necessary for the convicted person or persons dependent on them, in accordance with the list provided for by penal enforcement legislation; 2) money and other property legalized in accordance with the Law of the Republic of Kazakhstan dated June 30, 2014, “On the Amnesty of Citizens of the Republic of Kazakhstan, Oralman and Persons Holding a Residence Permit in the Republic of Kazakhstan in Connection with the Legalization of Their Property,” provided that such property was obtained as a result of committing a criminal offense for which this same Law provides for exemption from criminal liability (Part 5 of Article 48 of the Criminal Code).
At the same time, the provisions of subparagraph 2) of Part 5 of Article 48 of the Criminal Code shall not apply to judicial acts that entered into legal force as of September 1, 2014, nor shall they extend to legalized property and money that were not subject to legalization (Part 5 of Article 48 of the Criminal Code; see also subparagraph 11) of Part 1 of Article 390, Part 3 of Article 673, Part 1 of Article 674 of the Criminal Procedure Code; Law of the Republic of Kazakhstan dated November 13, 2015, “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Amnesty for Citizens of the Republic of Kazakhstan, Oralman and Persons Holding a Residence Permit in the Republic of Kazakhstan in Connection with the Legalization of Their Property”).
3\. In addition to confiscation of property, where damage (property and moral damage, and other expenses) has been caused by a criminal offense, the owner may also be deprived of their property by a court judgment in connection with the enforcement of the judgment in respect of a civil claim and other property-related recoveries (excluding confiscation of property).
Where a case is terminated by a court or pre-trial investigation bodies on grounds that do not rehabilitate the person, a citizen or legal entity, or their representatives, shall have the right to bring a claim before a court in civil proceedings (Article 170 of the Criminal Procedure Code). When a ruling terminating proceedings in a case is issued on the grounds specified in subparagraphs 3) and 4) of Article 35 of the Criminal Procedure Code, the court shall satisfy the civil claim in full.
It follows from the foregoing that confiscation of property, as well as other cases of deprivation of an owner’s property, may be applied only by a court decision. This is an essential constitutional guarantee of the inviolability of property in criminal proceedings.
It should be recalled that the Penal Enforcement Code dated July 5, 2014, establishes a List of Property Not Subject to Confiscation Pursuant to a Court Judgment (see the commentary on Article 670 of the Criminal Procedure Code).
Property subject to seizure may be confiscated or, at the discretion of the person who carried out the seizure, transferred for safekeeping to a representative of the local administration, a housing maintenance organization, the owner, or another person. Such persons must be warned of their liability for the safekeeping of the property, and a written undertaking to that effect shall be obtained from them (Part 11 of Article 163 of the Criminal Procedure Code). The Criminal Code provides for criminal liability for unlawful actions involving property that has been inventoried or seized, or is subject to confiscation (Article 425).
The procedural framework for imposing a seizure on individuals’ bank deposits and other property, as well as for their confiscation in the course of procedural actions, is specifically provided for in Articles 161–163 of the Criminal Procedure Code.
In particular, seizure may not be imposed on property constituting essential items or on other items, the list of which is determined by the legislation of the Republic of Kazakhstan. Furthermore, it is not permitted to establish temporary restrictions on the disposal of property, restrictions on the execution of transactions and other operations involving property, or to impose seizure on funds held in bank accounts intended for the receipt of benefits and social payments made from the state budget and (or) the State Social Insurance Fund, housing payments, funds held in bank accounts with housing construction savings banks in the form of housing construction savings accumulated through the use of housing payments, funds deposited under the terms of a notary deposit, funds 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,” as well as funds belonging to banks, insurance (reinsurance) organizations and voluntary accumulative pension funds that have had their licenses revoked by the authorized state body and (or) are undergoing compulsory liquidation (Part 7 of Article 161 of the Criminal Procedure Code).
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 seizure of property belonging to the suspect or persons who, under the law, bear financial liability for their actions. Certified copies of the criminal case materials confirming the validity of the motion shall be attached to the resolution (Part 1 of Article 162 of the Criminal Procedure Code). The authority to authorize the seizure of property belongs to the investigating judge and, in the cases provided for in subparagraphs 2) and 3) of Part 7 of Article 107 of the Criminal Procedure Code, to judges of the regional court and courts equated thereto (Part 1 of Article 163 of the Criminal Procedure Code).
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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