Commentary on Article 49. Compliance with and Extension of Time Limits of the Criminal Procedure Code of the Republic of Kazakhstan

1. A complaint, motion or other document shall not be considered to have been filed out of time if it was submitted to the post office, delivered or declared to a person authorized to receive it before the expiry of the time limit, and, in the case of persons held in custody or placed in a medical organization, if the complaint or other document was submitted to the administration of the place of detention or medical organization before the expiry of the time limit. The time when a complaint or other document is submitted to the post office shall be determined by the postal stamp, while the time of submission to a person authorized to receive such documents or to the administration of a place of detention or medical organization shall be determined by the mark of the office or officials of those organizations.

2. Compliance by officials with the established time limit shall be confirmed by an appropriate indication in the procedural documents. Receipt of documents subject to delivery to persons participating in criminal proceedings shall be confirmed by their receipt, attached to the case file.

3. Procedural time limits may be extended only in the cases and in accordance with the procedure established by this Code.

The article under consideration specifies in detail the particular methods that participants in criminal proceedings must follow in order to comply with the relevant procedural time limits, since this prevents any unnecessary delays in criminal proceedings and enhances the protection of the rights and freedoms of their participants. Failure to comply with the time limits provided for by the CPC for the exercise of certain rights by participants in the proceedings results in the loss of all legal attributes of the procedural action associated with those rights, including its evidentiary force in the case. For example, a complaint or a prosecutor's motion submitted under the appellate procedure after the expiry of the prescribed time limit shall be returned by the court of first instance to its author, indicating this as the reason. If, after the court of first instance has accepted the complaint or the prosecutor's motion, the failure to comply with the time limit for their submission is discovered by the appellate instance, the judge of the appellate instance shall, by a ruling, leave them without consideration (Part 3 of Article 418 of the CPC). Motions may be filed at any stage of the proceedings. Written motions shall be attached to the case file, while oral motions shall be entered into the record of the investigative action or court hearing (Part 2 of Article 99 of the CPC). Complaints may be submitted orally or in writing. Oral complaints shall be entered into a record signed by the complainant and the official who received the complaint (Part 3 of Article 100 of the CPC). The administration of pre-trial detention facilities is obliged to immediately forward to the body conducting the criminal proceedings complaints addressed to it by persons detained on suspicion of committing a criminal offence or held in custody as a preventive measure (Part 1 of Article 101 of the CPC). The CPC specifically stipulates the time limits for filing complaints against the actions and decisions of officials conducting criminal proceedings. Such complaints may be filed within the time limits of the inquiry, preliminary investigation and court proceedings, etc. (Article 102 of the CPC).

The record of any investigative action shall indicate the time of its commencement and completion to the nearest minute, as stipulated in the provision of Part 3 of Article 199 of the CPC, entitled “Record of an Investigative Action”; this is an unconditional requirement of the CPC. In general, criminal procedure law obliges the bodies conducting criminal proceedings to comply with procedural time limits, which must be reflected in every procedural document in a criminal case (Part 2 of Article 49 of the CPC).

3. Most procedural documents are served on participants in criminal proceedings upon their request (this is their right) and against a receipt. For example, a copy of the resolution on termination of a criminal case (Part 2 of Article 289 of the CPC); copies of resolutions recognizing a person as a suspect or civil defendant, qualifying the act, the detention record, the motion and resolution on the selection and extension of the term of a preventive measure (Part 9 of Article 64 of the CPC), without delay, copies concerning the adoption of procedural decisions (Subparagraph 23 of Part 9 of Article 64 of the CPC); copies of the indictment approved by the prosecutor and the resolution on the application of proceedings by way of a court order (Subparagraph 2 of Part 5 of Article 65, Subparagraph 1 of Part 4 of Article 629-3 of the CPC), a copy of the resolution recognizing a person as a suspect (Part 2 of Article 202 of the CPC); a copy of the resolution on the qualification of the suspect's act (Part 7 of Article 206 of the CPC), and so forth. The CPC also regulates the mandatory service of copies of the relevant documents on participants in the proceedings, even if they do not request them. For example, before committing the accused for trial, the prosecutor shall ensure that a copy of the indictment and its attachments is served on the accused, with the receipt attached to the case file (Part 1 of Article 304 of the CPC). Article 304 of the CPC is entitled “Service of the Indictment”. Similarly, Article 404 of the CPC, entitled “Service of a Copy of the Judgment”, establishes that a copy of the judgment must be served on the convicted or acquitted person, the defence counsel and the prosecutor no later than five days, or, in the case of a lengthy judgment, no later than fifteen days after its pronouncement. A copy of the judgment shall be served on other participants in the proceedings within the same time limit from the date of receipt of their motion.

4. Procedural time limits may be extended only in the cases and in accordance with the procedure established by the CPC, as stated in Part 3 of Article 49 of the CPC. In this regard, the provisions of the CPC clearly define these cases (conditions, grounds and sequence) and the procedures and procedural forms for dealing with them, the violation of which is not permitted. For example, the time limits for pre-trial investigations may be extended by the relevant prosecutors on the basis of reasoned motions submitted by an investigator or the head of an inquiry body (Part 4 of Article 192 of the CPC). In exceptional cases, the time limits for consideration of complaints against the actions and decisions of persons conducting pre-trial investigations and the prosecutor may be extended (Part 2 of Article 105 of the CPC); as may the periods of detention in custody (Articles 151—152 of the CPC), the time limits for appellate and cassation proceedings (Articles 425, 492 of the CPC), and so forth.

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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