Commentary on Article 58. Prosecutor of the Criminal Procedure Code of the Republic of Kazakhstan

1. A prosecutor is an official who, within the limits of his or her competence, exercises supervision over the legality of operational-investigative activities, inquiry, investigation and court decisions, as well as criminal prosecution at all stages of criminal proceedings, and also exercises the powers in accordance with Article 83 of the Constitution of the Republic of Kazakhstan and this Code: the Prosecutor General of the Republic of Kazakhstan, the First Deputy and Deputy Prosecutors General of the Republic of Kazakhstan, their senior assistants and assistants, the Chief Military Prosecutor and the Chief Transport Prosecutor of the Republic of Kazakhstan, prosecutors of the regions, cities of republican significance and the capital and their deputies, heads of structural divisions, their deputies, senior assistants and assistants, senior prosecutors and prosecutors of departments and divisions, prosecutors of districts and cities and prosecutors equated thereto, their deputies, senior prosecutors and prosecutors, acting within the powers established by this Code. A prosecutor participating in the judicial consideration of a criminal case represents the interests of the State by maintaining the prosecution and acts as the public prosecutor.

2. A prosecutor shall have the right to bring a claim against a suspect, accused person, defendant or a person bearing property liability for their actions in order to protect the interests of:

1) a victim who is unable to independently exercise the right to bring and pursue a claim due to his or her helpless condition, dependence on the suspect, accused person or defendant, or for other reasons;

2) the State.

3. Where grounds exist and in accordance with the procedure prescribed by this Code, a prosecutor shall have the right, by his or her resolution, to accept cases into his or her own proceedings and personally conduct the investigation, exercising the powers of an investigator. Supervision over the legality of pre-trial investigations shall be exercised by the prosecutor authorized to do so.

4. The powers of a prosecutor during pre-trial investigations and judicial consideration of a case shall be determined by Articles 186 (Parts Two and Three), 187 (Part Eight), 190 (Part Seven), 192, 193, 194 (Part Three), 195 (Part Five), 196 (Part Two), 234 (Parts Two, Three and Four), 290, 301, 302, 303, 304 and 305, 321 (Part Six), 337, 414 (Part Two), 428 (Part Six), 429 (Part Seven), 478 (Part Five), 480 (Part Six), 484, 486, 494 (Part Five), 502 (Part One), 518 (Part Five), Chapters 57, 58, 59, 60, 61, 62 and 63, Articles 628 (Part One), 643 (Part Eight), 668 (Part Six), as well as in other cases established by this Code.

5. When exercising his or her procedural powers, a prosecutor shall be independent and subject only to the law.

The Prosecutor General of the Republic of Kazakhstan, within the limits of his or her competence, shall adopt regulatory legal acts on matters concerning the application of the provisions of this Code, including matters relating to the conduct of criminal proceedings in electronic format.

6. Regulatory legal acts adopted by the Prosecutor General of the Republic of Kazakhstan within the limits of his or her competence shall be binding on criminal prosecution bodies.

Regulatory legal acts of bodies conducting pre-trial investigations shall be adopted within the limits of their competence in coordination with the Prosecutor General of the Republic of Kazakhstan.

Note. Article 58 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 (shall enter into force upon the expiry of ten calendar days after the date of its first official publication); dated 12 July 2018 No. 180-VI (shall enter into force upon the expiry of ten calendar days after the date of its first official publication); dated 28 December 2018 No. 210-VI (shall enter into force upon the expiry of ten calendar days after the date of its first official publication); and dated 27 December 2019 No. 292-VI (see Article 2 for the procedure for its entry into force).

It is by no means accidental that Chapter 8 of the CPC begins with Article 58, which regulates the legal capacity of a prosecutor. This is because the CPC equates the concept of a prosecutor with the concepts of “criminal prosecution (accusation)”, “criminal prosecution bodies and officials”, “body conducting criminal proceedings”, “public prosecution”, “protest”, “head of a prosecution body”, “procedural prosecutor”, “procedural agreement”, “sanction, parties” (see the commentary on subparagraphs 22, 23, 26, 28, 30, 34, 35, 37, 39 and 45 of Article 7 of the CPC). This is due to the role and purpose fulfilled by the prosecutor in the field of criminal proceedings. The legal status of the prosecution service, the subject matter and areas of prosecutorial activity in criminal proceedings are formulated in a concentrated form in Article 83 of the Constitution of the Republic of Kazakhstan.

The Constitution proclaims that the prosecution service, on behalf of the State and within the limits and forms established by law, exercises supreme supervision (oversight, monitoring) over the precise and uniform application of the entire body of current law of the Republic (the principle of legality), represents the interests of the State in court and conducts criminal prosecution on behalf of the State (Paragraph 1 of Article 83). From this alone, it may be concluded that there are no spheres of activity in the country that fall outside the scope of prosecutorial supervision. It is also entirely clear that the Constitution assigns the function of conducting criminal prosecution at all stages of criminal proceedings exclusively and specifically to the prosecution service. Such a formulation of the prosecution service's function in criminal proceedings may serve as a basis for reviewing, in the foreseeable future, the place and purpose of the prosecution service in pre-trial criminal proceedings, increasing the scope of procedural activities in criminal cases and fully concentrating complex forms of pre-trial investigation within its competence and powers.

In this regard, approaches to the importance of increasing the effectiveness of prosecution bodies under modern conditions were clearly outlined in the Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020 (approved by Decree of the President of the Republic of Kazakhstan dated 24 August 2009 No. 858), which expressly states that prosecution bodies constitute the core of the country's law enforcement system. It is necessary to increase the effectiveness of the supervisory activities of the prosecution service as its principal function. The procedural foundations of the activities of prosecution bodies require further improvement. As part of this work, it is necessary to enhance the role and responsibility of the prosecutor in pre-trial proceedings, including through the investigation by prosecution bodies of criminal cases involving crimes that pose a serious public danger and are complex, as an integral part of the criminal prosecution function exercised by the prosecution service. The effectiveness of the coordinating function of prosecution bodies in relation to law enforcement activities should also be further enhanced, including through appropriate legal regulation of this function (Paragraph 3.1 of Section 3).

From the foregoing, it is evident that the prosecution service of the Republic does not form part of the traditional system of branches of government and represents a characteristic example of a special system of bodies that, in specific legislative forms, are present within the system of checks and balances applied by the Head of State in the course of governing state affairs in the interests of legality.

 In other words, the prosecution service of the Republic exercises supreme supervision over the precise and uniform understanding and application by all branches of state power of the legal regime of restrictions established by the Constitution and the current law of the Republic of Kazakhstan in relation to each specific branch of state power: legislative, executive and judicial; that is, over their compliance, within the limits of their competence, with laws and subordinate regulatory legal acts, as the result of legality.

 It is precisely for this reason that, in order to maintain an appropriate level of legality in society and the State, the prosecution service of the Republic is objectively vested with authoritative competence and powers which, taken together, are considerably broader and more extensive than those of other authorized entities exercising state control and supervision. Otherwise, in the absence of such competence and powers within the prosecution service of the Republic, concerns would remain regarding the establishment of an environment of arbitrariness and lawlessness in the course of applying law as a state regulator of public relations by various authorized control and supervisory entities.

In its Regulatory Resolution dated 15 October 2008 No. 8 “On the Official Interpretation of Article 54, Subparagraphs 1) and 3) of Paragraph 3 of Article 61, as well as Certain Other Provisions of the Constitution of the Republic of Kazakhstan on Matters Concerning the Organization of State Administration”, the Constitutional Council also clarified in this regard that the constitutional characterization of prosecutorial supervision as supreme supervision consists, among other things, in the fact that prosecution bodies, within the limits of their powers, may verify the legality of actions performed and decisions adopted by other state bodies, including those vested with supervisory powers (for example, state sanitary and epidemiological supervision bodies or customs control bodies), and, where their illegality is established, take prosecutorial response measures (Paragraph 2 of the descriptive and reasoning part). The operative part of the cited document contains the following wording: “In accordance with Paragraph 1 of Article 83 of the Constitution of the Republic of Kazakhstan, the prosecution service, on behalf of the State, exercises supreme supervision over the precise and uniform application of laws, decrees of the President of the Republic of Kazakhstan and other regulatory legal acts throughout the territory of the Republic, as well as over the legality of operational-investigative activities, inquiry and investigation, administrative and enforcement proceedings. Other state bodies shall have the right to exercise supervisory functions within the limits of their competence” (Paragraph 2).

 Traditionally, prosecutorial supervision is exercised most closely over criminal proceedings, where the level of violations of human and civil rights and freedoms remains high, and there are no grounds for relaxing the function of the prosecution service in this area. As the initial premises for our explanations in this regard, we shall note that the competence and powers of the prosecution service in criminal proceedings are dictated primarily by the legislator's desire to establish an appropriate level of protection of the rights and interests of an individual who has become involved in criminal proceedings. The fact is that it is precisely in the field of criminal proceedings that the interests of society and the State, on the one hand, and those of the individual, on the other, come into the closest and sharpest contact. Therefore, in conditions where numerous pre-trial investigation bodies of different departmental affiliations exist and are, moreover, vested with authoritative criminal procedural powers, including those of a coercive nature, Paragraph 1 of Article 83 of the Constitution establishes the exercise by the prosecution service of the Republic of supreme supervision, including supervision over the legality of operational-investigative activities, inquiry and investigation, etc., that is, the constitutionally defined areas of activity of the prosecution service (see Paragraph 6 of the descriptive and reasoning part of the Resolution of the Constitutional Council of the Republic of Kazakhstan dated 6 March 1997 No. 3 “On the Official Interpretation of Paragraph 1 of Article 4, Paragraph 1 of Article 14, Subparagraph 3 of Paragraph 3 of Article 77, Paragraph 1 of Article 79 and Paragraph 1 of Article 83 of the Constitution of the Republic of Kazakhstan”). This presupposes that the scope of competence and powers of an authorized prosecutor in the field of criminal proceedings will objectively be greater than the tasks and functions of an inquirer, investigator, head of an inquiry body and head of an investigation department when conducting criminal cases.

 The “Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors”, adopted by the International Association of Prosecutors in Amsterdam on 23 April 1999, also emphasize the active role of prosecutors in criminal proceedings, compliance with legal provisions and fundamental human rights when exercising control over the investigation of crimes, acceptance of criminal cases for proceedings only where a sufficient body of evidence exists (reliable and admissible), and the careful and fair conduct of criminal prosecution within the framework of the available evidence.

 It may be assumed that the broad nature of the function of the prosecution service, which is assigned to it by the Constitution, as well as its centralized organizational and operational principles, have also been reflected in the legislation through the broadly interpreted term “prosecutor” within the meaning of Part 2 of Article 58 of the CPC. As the subsequent analysis of many provisions of the CPC will demonstrate, the prosecutors listed in Part 1 of Article 58 of the CPC take an extremely active part in criminal proceedings, beginning with such figures within this system as a prosecutor and a procedural prosecutor and extending to the head of the relevant prosecution body.

 A general analysis of the provisions of Article 58 of the CPC and the entire system of provisions governing the powers of a prosecutor in criminal proceedings indicates that, in fact, a prosecutor, like an investigating judge, is an arbiter of pre-trial investigations and the head of criminal prosecution in criminal cases. Notwithstanding all this, his or her participation in the investigation of a criminal case, as well as the maintenance of the prosecution in court, does not prevent his or her further participation in the case at the relevant judicial stages. A challenge to a prosecutor may be made only on the grounds provided for by the CPC (Articles 87—88 of the CPC). A prosecutor also possesses extensive powers at the judicial stages, where his or her human rights protection function is likewise manifested. It appears that this reflects the legislator's concern to ensure that prosecutors effectively conduct public prosecution in all criminal cases and that all criminal cases, regardless of the subjects of the criminal offence, reach the court in a timely manner. The procedural independence of prosecutors in criminal proceedings is also protected by the legal principles governing the organization and activities of prosecution bodies.

 Under current law, the prosecution service is defined as a unified centralized system of bodies and institutions, with lower-ranking prosecutors subordinate to higher-ranking prosecutors and the Prosecutor General of the Republic; it carries out its activities on the principles of legality, independence from other state bodies and officials, and accountability solely to the President of the Republic of Kazakhstan. Acts of prosecutorial supervision issued on the grounds and in accordance with the procedure established by law are binding on bodies, organizations and officials (Subparagraphs 1—2 of Article 3 and Paragraph 2 of Article 23 of the Law “On the Prosecutor's Office” dated 30 June 2017). The Prosecutor General of the Republic of Kazakhstan is, in essence, the only official at the pre-trial investigation stage who enjoys constitutional immunity from criminal prosecution in criminal proceedings (Paragraph 3 of Article 83 of the Constitution). The Prosecutor General is also vested with personal rights at the judicial stages (Articles 484 and 486 of the CPC).

The principal procedural forms of a prosecutor's participation in the pre-trial and judicial stages of proceedings are most fully regulated by the CPC (Part 4 of Article 58 of the CPC). The participation of a prosecutor during pre-trial investigations and in the main court hearing constitutes one of the fundamental general conditions (rules) of these stages of criminal proceedings (Articles 193—196 and 337 of the CPC). In addition, the scope and specific powers of a prosecutor in supervising the legality of inquiry and investigation are addressed, alongside the provisions of the CPC, in the Law “On the Prosecutor's Office” (Articles 11—16) and the relevant orders of the Prosecutor General of the Republic of Kazakhstan, which correspond to the provisions of the CPC in this area.

 Among the universal and inherent procedural rights of a prosecutor are: the right to withdraw a case from the body conducting the pre-trial investigation and transfer it to another pre-trial investigation body; in exceptional cases, for the purpose of ensuring the objectivity and sufficiency of the investigation, to transfer a case from one body to another upon the written motion of a criminal prosecution body or on his or her own initiative, or to accept the case into his or her own proceedings and investigate it irrespective of the investigative jurisdiction established by the CPC (Part 3 of Article 58, Part 1 of Article 60, Subparagraph 12 of Paragraph 1 of Article 193 of the CPC). The right of a prosecutor, where grounds exist and in the interests of legality, to determine the investigative jurisdiction of a criminal case or personally investigate a criminal case and exercise the powers of an investigator for this purpose excludes any parallel proceedings or disputes between criminal prosecution bodies concerning the investigative jurisdiction of criminal cases (Part 3 of Article 58 and Part 8 of Article 187 of the CPC).

 Order No. 19 of the Prosecutor General dated 12 February 2018, which approved the Instruction on the Organization of Supervision over the Legality of Criminal Prosecution, stipulates that the exercise of supervision over the legality of investigation and inquiry entails ensuring the legality of procedural decisions and actions of officials conducting criminal prosecution at all stages of pre-trial proceedings — from the moment a body is informed of a committed or impending crime until the criminal case is referred to court. In particular, for the purpose of effective supervision, duty shifts of prosecution service employees are organized in “Prosecutor's Offices” located within criminal prosecution bodies (Paragraphs 43—48 of the Instruction). In addition, this Order confirms the policy of maintaining supervisory files in all criminal cases, including through the use of the capabilities of the Unified Information and Analytical System “Kadaralau”. Such files must contain copies of procedural documents submitted by investigation and inquiry bodies to the prosecutor in accordance with the CPC within twenty-four hours from the moment of their issuance, copies of prosecutorial supervision acts and decisions adopted during supervision, including judicial acts, as well as correspondence relating to applications connected with the criminal case under investigation. Where several criminal cases are joined into a single proceeding, the supervisory files are also consolidated. The completeness of the supervisory file is ensured by the supervising prosecutor. There is no requirement to maintain a supervisory file for a case investigated in electronic format (Paragraph 9 of the Instruction).

• The prosecutor is an active participant in criminal proceedings at all judicial stages. This is reasonable, since the prosecutor possesses qualified legal knowledge and, together with the defense, contributes to the proper resolution of the criminal case in the interests of all participants in criminal procedural activities. In this regard, the prosecutor's participation in the preliminary hearing of the case is mandatory (Part 3 of Article 321 of the CPC). The participation of the prosecutor in the main court hearing as a public prosecutor (there may be several of them) is a fundamental general condition of this stage of criminal proceedings (except for private prosecution cases, in which the prosecutor does not participate) (Article 337 of the CPC). It should be noted that the law does not assign the function of maintaining the public prosecution in court to the inquiry officer, the head of the inquiry body, the investigator, or the head of the investigative department. Therefore, it is precisely the prosecutor who opens the judicial investigation by setting out the substance of the charges brought against the defendant (Part 1 of Article 364 of the CPC); the prosecutor participates in the judicial debates (Parts 3 and 4 of Article 383 of the CPC); has the right to file an appeal petition and a protest under the cassation procedure (Articles 313, 414, 484 and 486 of the CPC); has the right to participate in court hearings and challenge judges' rulings on matters related to the execution of a sentence (Article 483 of the CPC); has the right to file a motion for proceedings based on newly discovered circumstances (Article 502 of the CPC), etc.
• In exercising supervision over operational-search activities, the prosecutor, in cases established by law, authorizes the conduct of operational-search measures, verifies the legality of their conduct, as well as the legality of covert investigative actions; initiates the conduct of operational-search measures; terminates operational-search measures upon identifying violations of the law, human rights and freedoms and civil rights and freedoms; exercises other powers provided for by law, etc. (Clause 2 of Article 12 of the Law “On the Prosecutor's Office”, Article 25 of the Law “On Operational-Search Activities” dated September 15, 1994).
• When exercising supervision over operational-search activities, the Prosecutor General, within the limits of his competence, adopts regulatory legal acts on matters concerning the application of the provisions of the legislation of the Republic of Kazakhstan on operational-search activities, which are binding on bodies carrying out operational-search activities. For the purpose of identifying violations of the law by bodies carrying out operational-search activities, the prosecutor has the right to engage specialists from the prosecutor's offices and other specialists, using special technical equipment (Subparagraphs 3–4 of Article 25 of the Law “On Operational-Search Activities”).
• The prosecutor's right to file a civil claim in a criminal case on the grounds provided for in Part 2 of Article 58 of the CPC is particularly relevant. The prosecutor may exercise this right personally throughout the entire pre-trial investigation or through an investigator or inquiry officer, and until the commencement of the judicial investigation in the criminal case in which the prosecutor participates as a public prosecutor (Part 1 of Article 167 of the CPC). The persons in whose interests the civil claim has been filed are also notified of the prosecutor's filing of such claim. A prosecutor who has filed a civil claim in defense of the interests of a victim is not subject to recognition as a civil claimant, since the prosecutor's independent procedural status is defined by Article 58 of the CPC. In this case, the person in whose interests the claim was filed is recognized as the claimant. If the prosecutor withdraws the claim filed in the interests of other persons (at any time during the proceedings, but before the court retires to the deliberation room), the person who suffered harm as a result of a criminal offense or an act committed by an insane person has the right to independently maintain the claim in court or do so through representatives (Clauses 5 and 12 of the Normative Resolution of the Supreme Court of June 20, 2005, “On the Consideration of Civil Claims in Criminal Proceedings”).
• The issue of the prosecutor's right to file a claim against a suspect, accused, defendant, or a person who bears property liability for their actions in defense of the interests of the state also requires particular attention. In other words, this effectively concerns the recognition of the Republic of Kazakhstan as a victim and civil claimant in a criminal case.
• Let us immediately clarify: this issue is not directly regulated by the CPC. Therefore, where property damage is caused to the state as a result of a criminal offense, its interests in court may be represented through the filing of claims both by prosecutors and by the relevant state bodies within the scope of their competence established by legislative acts of the Republic of Kazakhstan, regulations, or other acts defining the status of those bodies. In cases and in the manner prescribed by the legislation of the Republic of Kazakhstan, other state bodies, legal entities and individuals may also appear in court on behalf of the Republic of Kazakhstan under a special authorization from the Republic of Kazakhstan. In this regard, the provisions governing the participation of legal entities in relations regulated by civil legislation shall apply to the state (and administrative-territorial units), unless otherwise follows from legislative acts (Articles 111 and 114 of the Civil Code, Part 4 of Article 47, Articles 54–55 and 302–304 of the Civil Procedure Code, Chapters 3–4 of the Instruction on the Organization of Supervision over the Legality of the Activities of State, Local Representative and Executive Bodies, Local Self-Government Bodies and Their Officials, Other Organizations Regardless of Their Form of Ownership, as Well as the Acts and Decisions Adopted by Them, Legally Effective Judicial Acts, Enforcement Proceedings, and Representation of the Interests of the State in Court in Civil and Administrative Cases (see Order No. 60 of the Prosecutor General of the Republic of Kazakhstan dated May 2, 2018, “On Certain Issues of Organizing Prosecutorial Supervision”), Clause 30 of the Instruction on the Organization of Supervision over the Legality of Criminal Prosecution (see Order No. 19 of the Prosecutor General of the Republic of Kazakhstan dated February 12, 2018)).
• In view of the different departmental subordination of the bodies conducting inquiries and preliminary investigations, the Prosecutor General's right to issue regulatory legal acts in the form of orders and instructions on matters concerning the application of the provisions of the CPC at the pre-trial stages, including the conduct of criminal proceedings in electronic format, appears entirely justified. These acts should be regarded as sources of current criminal procedural law. They are issued on the basis of and in implementation of the provisions of the CPC and contain legal rules. The texts of these official documents are primarily available in the Information and Legal System of the Ministry of Justice of the Republic of Kazakhstan. Among them, the following Orders of the Prosecutor General of the Republic of Kazakhstan should be highlighted: No. 2 dated January 3, 2018, “On Approval of the Instruction on Conducting Criminal Proceedings in Electronic Format”; No. 19 dated February 12, 2018, “On Approval of the Instruction on the Organization of Supervision over the Legality of Criminal Prosecution”, etc.
• Furthermore, the necessity of mandatory coordination by pre-trial investigation bodies with the Prosecutor General of the regulatory legal acts adopted by them within their competence (Part 6 of Article 58 of the CPC) is explained solely by considerations related to maintaining legality in the sphere of departmental rule-making. The texts of these official documents are also available in the Information and Legal System of the Republic of Kazakhstan.
• Pre-trial practice is also familiar with joint orders of the Prosecutor General and other central state and law enforcement bodies of the country.
• For example, “On Approval of the Rules for Compiling and Communicating to State Bodies the List of Organizations and Persons Associated with the Financing of Terrorism and Extremism”: Joint Order of the Minister of Finance of the Republic of Kazakhstan No. 576 dated November 20, 2015, the Minister of Justice of the Republic of Kazakhstan No. 34 dated January 25, 2016, the Prosecutor General of the Republic of Kazakhstan No. 6 dated January 20, 2016, the Minister of Foreign Affairs of the Republic of Kazakhstan No. 11-1-2/539 dated November 30, 2015, the Chairman of the National Security Committee of the Republic of Kazakhstan No. 17 dated January 14, 2016, and the Minister of Internal Affairs of the Republic of Kazakhstan No. 962 dated November 25, 2015; “On Approval of the Rules for Transferring State Audit Materials on Identified Offenses During External State Audit and Financial Control”: Joint Regulatory Resolution No. 6-NK of the Accounts Committee for Control over the Execution of the Republican Budget dated March 31, 2016, and Order No. 51 of the Prosecutor General of the Republic of Kazakhstan dated March 30, 2016, Order No. 76 of the Minister of Finance of the Republic of Kazakhstan dated February 19, 2016, Order No. 20 of the Chairman of the National Anti-Corruption Bureau (Anti-Corruption Service) of the Ministry for Civil Service Affairs of the Republic of Kazakhstan dated February 26, 2016, etc.

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 Kazakhstan National Academy of Natural Sciences, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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