Commentary on Article 55. Powers of the Investigating Judge of the Criminal Procedure Code of the Republic of Kazakhstan

1. During pre-trial proceedings, the investigating judge shall, in the cases provided for by this Code, consider the following matters:

1) authorizing detention in custody;

2) authorizing house arrest;

3) authorizing temporary suspension from office;

4) authorizing a prohibition on approaching;

5) authorizing extradition arrest;

6) authorizing the conduct of covert investigative actions and extending the periods for conducting covert investigative actions;

7) terminating covert investigative actions upon the prosecutor's motion in the cases provided for in part three of Article 234 of this Code;

8) extending the periods of detention in custody, house arrest, and extradition arrest;

9) authorizing the application of bail;

10) authorizing the seizure of property;

11) compulsory placement of a person who is not in custody in a medical organization for the purpose of conducting forensic psychiatric and (or) forensic medical examinations;

12) where a mental illness is established, transferring a person who was previously subjected to detention in custody to a specialized medical organization providing psychiatric care, adapted to accommodate patients under conditions of strict isolation;

13) exhumation of a corpse;

14) declaring an international search for a suspect or accused person;

15) authorizing an inspection;

16) authorizing a search;

17) authorizing seizure;

18) authorizing a personal search;

19) authorizing compulsory examination;

20) authorizing the compulsory collection of samples.

2. In the cases provided for by this Code, the investigating judge shall:

1) consider complaints against the actions (inaction) and decisions of an inquirer, an inquiry body, an investigator, and a prosecutor;

2) consider the issue of the disposal of physical evidence that is subject to rapid deterioration or whose long-term storage until the criminal case is resolved on its merits requires substantial material costs;

3) deposit the testimony of a victim and a witness during pre-trial proceedings;

4) impose monetary penalties on persons who fail to perform or improperly perform their procedural duties during pre-trial proceedings, with the exception of lawyers and prosecutors;

5) consider the issue of recovery of procedural costs in a criminal case upon the prosecutor's submission;

6) upon a reasoned motion of a lawyer participating as defense counsel, consider the issue of requesting and attaching to the criminal case any information, documents, or objects relevant to the criminal case, with the exception of information constituting state secrets, where the request has been refused or no decision has been made on it within three days;

7) upon a reasoned motion of a lawyer participating as defense counsel, consider the issue of appointing an expert examination or having other investigative actions conducted by the criminal prosecution body, with the exception of covert investigative actions, including where the criminal prosecution body has unreasonably refused to grant such a motion or has failed to make a decision on it within three days;

8) upon a motion of a lawyer participating as defense counsel, consider the issue of compulsory appearance before the body conducting the criminal proceedings of a witness previously interviewed by that lawyer, whose appearance to give testimony is difficult to secure;

8-1) upon a reasoned motion of the pre-trial investigation body, consider the issue of extending the period for notifying a person of covert investigative actions conducted against that person for up to one year;

8-2) upon a reasoned motion of the pre-trial investigation body, give consent to the pre-trial investigation body not to notify a person of covert investigative actions conducted against that person;

9) exercise other powers provided for by this Code.

Note. Article 55 was amended by the Laws of the Republic of Kazakhstan dated 31 October 2015 No. 378-V (shall enter into force on 1 January 2016); dated 11 July 2017 No. 91-VI (shall enter into force upon the expiry of ten calendar days after the date of its first official publication); dated 21 December 2017 No. 118-VI (see Article 2 for the procedure for entry into force); and dated 27 December 2019 No. 292-VI (see Article 2 for the procedure for entry into force).

The introduction of the institution of the investigating judge into pre-trial criminal proceedings objectively necessitated the determination of his or her legal capacity in criminal proceedings. Being a judge of a court of first instance, the investigating judge remains protected by the provisions of the Constitution, the Constitutional Law “On the Judicial System and Status of Judges,” and the Criminal Procedure Code. In practice, his or her procedural activities largely predetermine the legality and validity of subsequent judicial stages, since they resolve many issues that may arise at those stages and be raised by participants in criminal proceedings due to their having been resolved in a particular manner during the pre-trial investigation.

Thus, this is the judge's authority to grant sanctions in 16 cases by issuing rulings (subparagraphs 1—8, 11—18), as well as to adopt decisions in the form of rulings in four cases (subparagraphs 5-2, 9—10, 12), the list of which is provided in part 1 of Article 55 of the Criminal Procedure Code and is exhaustive. These situations are regulated in detail by the provisions of the Criminal Procedure Code and will be examined when commenting on the procedural actions that require obtaining such sanctions and decisions. We shall limit ourselves to pointing out that the investigating judge grants sanctions and adopts decisions where a criminal case and the necessary body of evidence are available; in certain cases, these are conditional upon the category of the criminal offense and the psychological characteristics of the individual. In general, obtaining sanctions and adopting decisions from the investigating judge involve the preparation and processing of specific procedural documents by the criminal prosecution body, with or without the participation of the prosecutor (but with mandatory notification thereof), as well as substantiating them before the investigating judge, including, in certain cases, within the framework of a court hearing attended by participants in criminal proceedings representing their own or the rights and interests of the persons they protect.

3. The procedural activities of the investigating judge are not limited solely to the powers specified in part 1 of Article 55 of the Criminal Procedure Code. They are much more multifaceted and include an entire range of other matters arising during criminal proceedings (part 2 of Article 55 of the Criminal Procedure Code).

Thus, when considering the matters set out in subparagraph 1 of part 2 of Article 55 of the Criminal Procedure Code (consideration of complaints), the investigating judge applies the procedure for their resolution in accordance with Articles 106—107 of the Criminal Procedure Code.

The authority arising from subparagraph 2 of part 2 of Article 55 of the Criminal Procedure Code (concerning the disposal of physical evidence) is exercised by the investigating judge in accordance with part 4 of Article 118 of the Criminal Procedure Code, following the procedure established by the Government of the Republic of Kazakhstan.

The specific features of the questioning by the investigating judge of a victim or witness upon a motion of the prosecution or defense parties (deposition of their testimony) are the subject matter of Article 217 of the Criminal Procedure Code (subparagraph 3 of part 2 of Article 55 of the Criminal Procedure Code).

The imposition by the investigating judge of monetary penalties on unscrupulous participants in criminal proceedings during the pre-trial investigation (with the exception of lawyers, prosecutors, and defendants) (subparagraph 4 of part 2 of Article 55 of the Criminal Procedure Code), as an independent measure of criminal procedural liability, is governed by the provisions of Articles 159—160 of the Criminal Procedure Code.

The procedure for considering the issue of recovery of procedural costs by the investigating judge, upon the prosecutor's submission, in a case terminated at the pre-trial stage of criminal proceedings (subparagraph 5 of part 2 of Article 55 of the Criminal Procedure Code) is governed by the provisions of Chapter 22 of the Criminal Procedure Code (part 1 of Article 178 of the Criminal Procedure Code).

The resolution of a range of issues upon a reasoned application by the defense lawyer in the case (subparagraphs 6—8 of part 2 of Article 55 of the Criminal Procedure Code) constitutes assistance measures provided by the investigating judge at the initiative of that person, which are relevant to the proper resolution of the criminal case. These issues correspond to the similar powers of defense counsel in a criminal case (part 3 of Article 70 of the Criminal Procedure Code). When considering them, the investigating judge must ensure that the defense counsel has submitted the relevant written motions to the criminal prosecution authorities in accordance with the procedure established by law, but that they have remained without proper response: an unreasoned refusal was issued or no decision was made at all.

When adopting decisions on these matters, the investigating judge must proceed from the requirements of part 4 of Article 56 of the Criminal Procedure Code, according to which the investigating judge must not prejudge issues that, under the provisions of the Criminal Procedure Code, may be subject to judicial consideration when resolving the case on its merits; give instructions regarding the direction of the investigation or the conduct of investigative actions; perform actions or adopt decisions in place of persons conducting pre-trial proceedings and the supervising prosecutor, as well as the court considering the case on its merits.

In this regard, where grounds exist, the investigating judge is entitled to grant the lawyer's motion, adopt the relevant procedural decisions and conduct the relevant procedural actions, or oblige the criminal prosecution body to adopt the necessary procedural decisions and conduct the relevant procedural actions, monitor their implementation, and attach the materials obtained to the materials of the criminal case.

Other powers of the investigating judge (subparagraph 9 of part 2 of Article 55 of the Criminal Procedure Code) include those listed powers that manifest themselves as specific features of his or her participation in special proceedings or within the framework of international cooperation in the field of criminal justice (Articles 509—600 of the Criminal Procedure Code).

Rulings of the investigating judge may be appealed and reviewed upon a motion of the prosecutor in accordance with the procedure provided for in Article 107 of the Criminal Procedure Code, before the regional courts and courts equated thereto, through the relevant court whose investigating judge issued the ruling. A ruling of a judge of a regional court or a court equated thereto, issued following consideration of a complaint or a motion of the prosecutor, enters into legal force from the moment of its announcement and is not subject to review under the appellate or cassation procedure (part 5 of Article 107, part 3 of Article 415, and part 2 of Article 484 of the Criminal Procedure Code), except that appellate review is permitted in respect of a ruling of the investigating judge concerning a preventive measure or the imposition of a monetary penalty during the pre-trial investigation. Objections to the above rulings may be set out in appellate complaints and motions filed against the judgment (part 3 of Article 415 of the Criminal Procedure Code).

With regard to the powers of the investigating judge set out in subparagraphs 8-1 and 8-2 of part 2 of Article 55 of the Criminal Procedure Code. Pursuant to paragraph 3 of Article 18 of the Constitution of the Republic of Kazakhstan, state bodies, public associations, officials, and mass media are obliged to ensure that every citizen has the opportunity to familiarize themselves with documents, decisions, and sources of information affecting their rights and interests. In this regard, a person against whom a covert investigative action has been conducted must be notified thereof by the pre-trial investigation body no later than six months from the date of the final decision in the criminal case, without being provided access to the results of the covert investigative action, except in the cases provided for in Article 240 of the Criminal Procedure Code. This period, as stated in part 1 of Article 240 of the Criminal Procedure Code, may be extended by the investigating judge for up to one year upon a reasoned motion of the pre-trial investigation body (subparagraph 8-1 of part 2 of Article 55 of the Criminal Procedure Code). In turn, a person against whom covert investigative actions have been conducted has the right, within fifteen days from the date of notification provided for in part 1-1 of Article 240 of the Criminal Procedure Code, to apply to the court with an application to declare the conduct of the relevant covert investigative actions unlawful and to recover the damage caused (if any).

At the same time, the Criminal Procedure Code identifies situations in which such notification of a person is not made at all. That is, upon a reasoned motion of the pre-trial investigation body, the investigating judge may consent to not notifying a person of a covert investigative action conducted against that person:

1) in a criminal case concerning a terrorist or extremist crime;

2) in a criminal case concerning a crime committed by a criminal group;

3) where notification creates a threat of disclosure of state secrets;

4) where notification creates a threat to the safety of persons carrying out activities on a confidential basis and in a covert manner, as well as other persons (subparagraph 8-2 of part 2 of Article 55 and part 1 of Article 240 of the Criminal Procedure Code).

In both of the above cases, the motion of the pre-trial investigation body must be reasoned, that is, supported by the necessary analysis of the body of evidence in the criminal case, confirming the grounds and reasons for extending the period of non-notification of the person or for not notifying the person at all of the covert investigative actions conducted against them.

6. It should be noted that these powers of the investigating judge do not contradict the requirements of Article 39 of the Constitution, which permits restrictions on the rights and freedoms of an individual and citizen only by laws and only to the extent necessary for the purposes of protecting the constitutional order, maintaining public order, protecting human rights and freedoms, and safeguarding public health and morality.

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan, by Marat Chekishuly Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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