Commentary on Article 56. General Conditions for the Exercise of Powers by an Investigating Judge of the Criminal Procedure Code of the Republic of Kazakhstan

1. An investigating judge shall exercise their powers in accordance with the rules of this Article and the specific provisions established by the relevant Articles of this Code.

2. An investigating judge shall consider matters falling within their competence individually, without holding a court hearing.

Where it is necessary to examine circumstances relevant to the adoption of a lawful and well-founded decision, or where a motion is submitted by the prosecutor or the defence, the investigating judge shall decide whether to hold a court hearing with the participation of the relevant persons and the prosecutor.

When considering the matters specified in paragraphs 1), 2), 5), 6), 7) and 8) of part one, and paragraphs 2) and 3) of part two of Article 55 of this Code, holding a court hearing shall be mandatory. Where a court hearing is mandatory, the defence and the prosecutor shall be notified in advance of the time and place of the court hearing.

By order of the investigating judge, the court hearing may be conducted by means of video communication. Minutes shall be kept during the court hearing.

3. An investigating judge shall have the right to:

1) request additional information from the body conducting pre-trial proceedings on the matter under consideration;

2) examine and study all materials of the relevant pre-trial proceedings;

3) summon participants in the proceedings to a court hearing and obtain from them the information necessary in relation to the criminal case.

4. An investigating judge shall not prejudge issues which, in accordance with this Code, may be the subject of judicial consideration when resolving the case on its merits, give instructions regarding the direction of the investigation or the conduct of investigative actions, except for the cases provided for in paragraph 7) of part two of Article 55 of this Code, perform actions or make decisions in place of the persons conducting pre-trial proceedings and the supervising prosecutor, or the court considering the case on its merits.

5. Where a suspect states that torture or other unlawful acts have been applied against them, or where traces of violence are found on their body, the investigating judge shall be obliged to instruct the supervising prosecutor to immediately verify the stated facts.

6. Where facts of unlawful restriction or other violations of human rights and freedoms, or legally protected interests of organisations, are established, the investigating judge shall issue a special ruling in order to resolve the question of the liability of the persons who committed the violations of the law.

Note. Article 56 was amended by the Laws of the Republic of Kazakhstan dated 7 November 2014 No. 248-V (which entered into force on 1 January 2015); and dated 21 December 2017 No. 118-VI (which entered into force upon the expiry of ten calendar days after the date of its first official publication).

The Article under consideration contains important rules governing the general approaches to the exercise of powers by an investigating judge. The introduction of these rules was necessitated by the fact that the procedural activities of an investigating judge are not covered by the general conditions of the main court proceedings, which are directed at the court resolving a criminal case on its merits (Chapter 42 of the CPC). Therefore, the introduction of a special provision on this matter specifically for the purposes of the investigating judge is entirely logical.

The working methods of an investigating judge differ from those of criminal prosecution bodies and the prosecutor. Therefore, all key and fundamental matters of their activities are resolved by the investigating judge through court hearings involving the defence and the prosecutor, with the course, content and results of such hearings being recorded in the minutes. The list of cases requiring the mandatory consideration and discussion of certain matters within the framework of a court hearing is established in part 2 of Article 56 of the CPC. The nature of these matters does not relate to the fundamental issues of the criminal case, but they substantially affect individual rights, the competence of criminal prosecution bodies and the defence, and objectively necessitate the holding of court hearings on the aforementioned matters. However, this circumstance does not prohibit the investigating judge from holding court hearings in other cases as well, whenever they deem it necessary.

3. In summarising the foregoing, it should be emphasised that holding a court hearing is mandatory for the group of matters specified in part 2 of Article 56 of the CPC (paragraphs 1), 2), 5) and 6) of part 1, and paragraphs 2) and 3) of part 2 of Article 55 of the CPC); the participation of the defence and the prosecutor in such hearings is mandatory; the participation of the victim or their representative in these hearings is not provided for by law; and keeping minutes is mandatory.

When holding a court hearing on other matters within their competence, also specified in part 2 of Article 56 of the CPC, the investigating judge shall follow the rules set out in paragraph 3 of this commentary; however, the range of participants may be significantly broader, including the possible participation of the victim or their representative, while the participation of the prosecutor is mandatory in all cases.

When considering the matters specified in Article 55 of the CPC, either individually or in the format of a court hearing, the investigating judge must not perform the work of a court of first instance or that of a prosecutor, procedural prosecutor, head of an investigative department, or head of an inquiry body (part 4 of Article 56 of the CPC). The task of the investigating judge is not to replace the aforementioned persons, but to consider and resolve matters falling within their competence by exercising a specific scope of rights (part 3 of Article 56 of the CPC). In other words, they are prohibited from conducting investigative or judicial actions aimed at collecting evidence, as this is not their function. They do not resolve the case on its merits and do not examine evidence using the methods of judicial investigation. They are only entitled to: request that the criminal prosecution body provide additional information on the matter under consideration; study and analyse the materials of the criminal case; summon participants in criminal proceedings and obtain from them the information necessary in relation to the matter of the case. All of this is carried out by the investigating judge from the perspective of compliance with the requirements of the provisions of the Criminal Code and the CPC in the criminal case. In other words, they are limited to studying the materials of the criminal case that relate to the circumstances taken into account when exercising the powers specified in Article 55 of the CPC: requesting certificates, references and other documents relevant to the subject matter of the issue falling within their competence; verifying the existence of evidence in the case; examining the evidence contained in the case from the perspective of compliance with the procedural requirements governing its acquisition, without conducting verification through the collection of additional evidence; checking the sources from which the evidence was obtained; summoning suspects, victims, witnesses and other participants in the case, establishing their identities and satisfying themselves as to their identity, and obtaining explanations from them concerning the subject matter of the issue falling within their competence.

For example, when deciding on the authorisation of a person's detention in custody, the investigating judge must satisfy themselves that all the grounds and circumstances taken into account when selecting this preventive measure are confirmed by the materials of the criminal case and are contained therein. This concerns the existence in the case file of evidence supporting each of the grounds and circumstances specified in the law (see Articles 136 and 138 of the CPC). Accordingly, when deciding on the necessity of conducting a particular forensic examination in the case, the investigating judge must proceed from the questions which, in the opinion of the defence lawyer, the examination is necessary to resolve, and why the issue of conducting it was not supported by the criminal prosecution body, and so forth. If the examination concerns circumstances subject to proof in the case, and failure to conduct it would make it impossible to establish them with the necessary depth and accuracy, or if the appointment of a forensic examination is mandatory by law, such a motion must, undoubtedly, be granted. In this case, the investigating judge shall issue a ruling granting the lawyer's motion, personally appoint the forensic examination in accordance with the procedure established by Article 272 of the CPC, or instruct the criminal prosecution body handling the criminal case to appoint the forensic examination, retaining judicial supervision over their decision.

Statements by a suspect that torture has been applied against them may be made either during the consideration of matters falling within the competence of the investigating judge or submitted to the investigating judge in the form of a written application (complaint). The investigating judge must respond immediately. In accordance with the law, they must instruct the supervising prosecutor or procedural prosecutor to verify the reported information, with the head of the prosecution body being mandatorily informed thereof (parts 5–6 of Article 56 of the CPC). This further entails monitoring the relevant incident, holding a court hearing with the participation of the parties and the prosecutor, and adopting a special ruling, with all the ensuing consequences both for those who applied and permitted the use of torture and for those who were subjected to physical and psychological methods of torture.

The conditions, grounds and procedure for issuing special rulings have been thoroughly tested in practice to date. Pursuant to part 6 of Article 56 of the CPC, issuing such rulings also falls within the competence of the investigating judge. This is appropriate because they may be among the first to encounter various violations of criminal procedural law during pre-trial investigation and to respond to them promptly. In other words, judging by the provisions of part 6 of Article 56 of the CPC, an investigating judge is entitled to issue a special ruling exclusively in respect of facts involving violations of the law during the pre-trial investigation of a criminal case, but not in respect of circumstances that contributed to the commission of a criminal offence, since the nature of their work is not to resolve the criminal case on its merits, which falls within the competence of the court of first instance, but to exercise judicial supervision over the legality of the activities of criminal prosecution bodies and protect individual rights in criminal pre-trial proceedings. The CPC regards special court rulings as an important procedural preventive document in a criminal case. This can be illustrated by the adoption of a separate Regulatory Resolution of the Supreme Court of 19 December 2003 No. 11, “On the Practice of Issuing Special Rulings by Courts in Criminal Cases” (see the commentary to Article 53 of the CPC).

Commentary of 2020 to 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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