Commentary on Article 34. General Conditions for the Exercise of Criminal Prosecution of the Criminal Procedure Code of the Republic of Kazakhstan
1. In order to fulfil the objectives of criminal proceedings, the criminal prosecution authority shall, within the limits of its competence, in every case where signs of a criminal offence are detected, take all measures provided for by law to establish the event of the criminal offence, expose the persons guilty of committing the criminal offence, bring them to justice, and also take measures to rehabilitate an innocent person.
2. The criminal prosecution authority shall ensure that the victim has access to justice and shall take measures to compensate for the harm caused by the criminal offence.
3. In criminal proceedings, the criminal prosecution authority shall exercise its powers independently of any bodies or officials whatsoever and in strict compliance with the requirements of this Code.
4. Any form of influence exerted on the criminal prosecution authority for the purpose of obstructing an objective investigation in a criminal case shall entail liability established by law.
5. The lawful demands of the criminal prosecution authority shall be binding on all state bodies, organisations, officials and citizens and must be fulfilled within the period specified by that authority, but no later than three days. Where it is necessary to make a decision on the detention or remand in custody of a suspect, the demand of the criminal prosecution authority must be fulfilled within twenty-four hours. Failure to comply with the aforementioned demands without valid reasons shall entail liability established by law.
The provisions of Article 34 are addressed primarily to criminal prosecution authorities (see the commentary on subparagraphs 2), 22), 23), 35) and 45) of Article 7 of the CPC) and characterise the public and official nature of their activities by regulating the fundamental conditions without which it is impossible to fulfil the objectives and principles of criminal proceedings. The understanding of these fundamental conditions and their elaboration are set out in the commentary on the provisions of the articles of Chapter 24 of the CPC, “General Conditions for Conducting Pre-Trial Investigations”.
The CPC includes prosecutors (heads of prosecution authorities and procedural prosecutors), investigators, bodies of inquiry and inquiry officers among the bodies and officials responsible for criminal prosecution. The head of an investigative department (Article 59 of the CPC) and the head of a body of inquiry (Article 62 of the CPC) may also rightfully be classified as criminal prosecution authorities, since they are vested with a certain scope of procedural competence in the field of pre-trial investigation of criminal cases, ranging from the right to exercise departmental procedural supervision to the right to personally investigate criminal cases.
- The competence of each criminal prosecution authority in the field of pre-trial investigation of criminal cases is clearly defined by the provisions of the CPC. At the same time, the prosecutor remains the “arbiter” of the pre-trial investigation and the leading representative of the prosecution in the main court hearing.
In every case where signs of a criminal offence are detected, the criminal prosecution authority is generally obliged to initiate and conduct a full pre-trial investigation, during which it must take all necessary and optimal measures to compensate the victim for the harm caused by the act. In this regard, pre-trial investigation authorities should make extensive use of the powers of heads of investigative departments, bodies of inquiry, prosecutors, investigating judges, defence lawyers, other participants in criminal proceedings, as well as the opportunities for international cooperation of Kazakhstan in the field of criminal justice.
The fulfilment by the prosecutor of the objectives and principles of criminal proceedings in the course of criminal prosecution is ensured by the prosecutor’s independence and subordination exclusively to the law (paragraph 2 of Article 83 of the Constitution, part 5 of Article 58 of the CPC); when conducting a pre-trial investigation, the investigator independently makes all decisions, except in cases where the law requires the consent of the prosecutor, authorisation by a court or a court decision, and bears full responsibility for their lawful and timely execution. Unlawful interference in the activities of an investigator entails criminal liability (part 7 of Article 60 of the CPC); an inquiry officer has the right to issue a resolution accepting a case for their proceedings and to conduct a pre-trial investigation in the forms established by the CPC, independently deciding on the conduct of investigative and other procedural actions, except in cases where the law requires approval or agreement by the head of the body of inquiry, or provides for authorisation by the prosecutor, the court or the investigating judge, or a court decision (part 5 of Article 62, part 2 of Article 63 of the CPC).
Unlawful interference in the activities of officials of criminal prosecution authorities, as well as the commission of criminal offences against them, entail criminal liability for the persons responsible. In this regard, the Criminal Code establishes liability for obstructing the administration of justice and the conduct of pre-trial investigations (Article 407), encroachment on the life of a person administering justice or conducting a pre-trial investigation (Article 408), threats or acts of violence in connection with the administration of justice or the conduct of a pre-trial investigation (Article 409), and defamation of a judge, juror, prosecutor, person conducting a pre-trial investigation, expert, court bailiff or judicial enforcement officer (Article 411).
The lawful demands of a criminal prosecution authority (official), made when accepting and registering an application or report concerning a criminal offence or another reason for initiating a pre-trial investigation (Articles 179–185 of the CPC), collecting evidence (part 2 of Article 122 of the CPC), conducting investigative actions (Articles 128–135, 208–287 of the CPC), and carrying out procedural preventive work in a criminal case, and formalised in official documents, resolutions and submissions issued by its officials, are binding on all state bodies, organisations, officials and citizens. For example, a submission by an investigator concerning the elimination of circumstances that contributed to the commission of a criminal offence and other violations of the law is subject to consideration by state bodies, organisations or persons performing managerial functions within them, with mandatory notification to the investigator of the measures taken within one month (Article 200 of the CPC). Disclosure of pre-trial investigation data, including information concerning security measures for participants in criminal proceedings, entails liability provided for by the Criminal Code (Articles 423–424 of the Criminal Code, Articles 95–98 and 201 of the CPC).
The time limits established in part 5 of the commented article are addressed both to individuals and legal entities involved in criminal proceedings and to criminal prosecution authorities within the limits of their competence. These time limits should be calculated from the moment the relevant demand of the criminal prosecution authority is received by the entities responsible for its fulfilment, or within the time limits specified in the demand itself. The procedure for submitting objects and documents is, in particular, regulated by the provisions of Chapter 33 of the CPC. The procedure for applying procedural coercive measures pursuant to demands of the criminal prosecution authority, as referred to in the provisions of part 5 of Article 34 of the CPC, depends in each particular case on the circumstances of the case and the status of the criminal prosecution authority conducting the relevant criminal proceedings. Such demands may be issued by a procedural prosecutor or the head of a prosecution authority to bodies of inquiry and preliminary investigation; or by an investigator to a body of inquiry.
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 National Academy of Natural Sciences of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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