Commentary on Article 59. Head of the Investigation Department of the Criminal Procedure Code of the Republic of Kazakhstan

1. The head of the investigation department is the head of the investigative unit of the body conducting pre-trial investigations, and their deputies acting within the scope of their competence.

2. The head of the investigation department is authorized to:

1) assign the conduct of an investigation or an expedited pre-trial investigation to an investigator;

2) monitor the timely performance of investigative actions by the investigator in cases under their supervision, compliance by the investigator with the time limits for investigation and detention in custody, and execution of the prosecutor's instructions and assignments from other investigators;

3) assign the conduct of an investigation to several investigators;

4) remove an investigator from conducting a case;

5) examine criminal cases and issue instructions concerning them;

6) within the scope of their competence, withdraw a criminal case from one investigative unit of a subordinate body conducting a preliminary investigation and transfer it to another investigative unit of that body or another subordinate body conducting a preliminary investigation;

7) forward criminal cases to the prosecutor together with an indictment, as well as criminal cases concerning minor offences under the procedure of summary proceedings;

8) petition the prosecutor to annul an unjustified procedural decision of an investigator;

8-1) apply to the prosecutor to submit a petition concerning a ruling of an investigating judge;

9) within the scope of their competence, issue instructions and directions to the bodies of inquiry that are binding upon them;

10) consider complaints concerning the actions (inaction) and decisions of an investigator.

3. The head of the investigation department shall have the right, by issuing a resolution, to accept cases into their own proceedings and personally conduct the investigation, exercising the powers of an investigator.

4. Instructions issued by the head of the investigation department in relation to a case may not restrict the independence of the investigator or the rights established for the investigator by Article 60 of this Code. Instructions shall be binding but may be appealed to a higher-ranking head of the investigation department or to the prosecutor. An appeal by the investigator against the actions of the head of the investigation department shall not suspend their execution, except for instructions concerning the legal classification of the suspect's act and the scope of suspicion, forwarding the case to the prosecutor together with an indictment, or termination of the criminal case.

Note. Article 59 was amended by the Laws of the Republic of Kazakhstan 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); and 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).

The head of the investigation department occupies a significant position within the system of criminal prosecution bodies and in the field of criminal procedure. This circumstance is also evidenced by the existence of a special provision governing their procedural status, the exercise of which supplements prosecutorial supervision and strengthens the rule of law during pre-trial investigations. Procedural powers relating to the exercise of departmental procedural control over the work of investigators in criminal cases were first introduced into the Criminal Procedure Code of the Kazakh SSR dated 22 July 1959 by the Decree of the Presidium of the Supreme Soviet of the Kazakh SSR dated 21 February 1966 (Article 121-1 of the Criminal Procedure Code). Since then, the head of the investigation department has been and remains a kind of “departmental prosecutor” for investigators. They are closer to investigators than the prosecutor and exert a significant influence on the course, substance and outcome of the investigation of a criminal case. In certain years (during the period of operation of the State Investigation Committee), the head of the investigation department was even vested with the right to annul unlawful resolutions of an investigator refusing to initiate criminal proceedings, terminating or suspending them (Article 121-1 of the Criminal Procedure Code of the Kazakh SSR, as amended by the Decree of the President of the Republic of Kazakhstan having the force of law, “On Amendments and Additions to Certain Legislative Acts of the Kazakh SSR and the Republic of Kazakhstan” dated 25 December 1995). However, this right was removed from the powers of the head of the investigation department by the subsequent Criminal Procedure Code adopted on 13 December 1997.

Pursuant to Part 1 of Article 59 and Part 1 of Article 60 of the Criminal Procedure Code, the positions of heads of investigation departments are provided for within the system of the national security bodies, internal affairs bodies, the anti-corruption service and the economic investigation service.

The scope of the procedural powers of the head of the investigation department in criminal cases (Part 2 of Article 59 of the Criminal Procedure Code) makes it possible to conclude that their procedural activities substantially supplement the supervision exercised by the prosecutor and the procedural prosecutor over investigations in specific criminal cases. In general, departmental control exercised by the head of the investigation department is divided into non-procedural forms (monitoring the timely performance of investigative actions by the investigator in cases under their supervision, compliance by the investigator with the time limits for investigation and detention in custody, and execution of the prosecutor's instructions and assignments from other investigators) and procedural forms of its implementation (assigning the conduct of an investigation or an expedited pre-trial investigation to an investigator; assigning the conduct of an investigation to several investigators; considering complaints concerning the actions (inaction) and decisions of an investigator and, where grounds exist, removing the investigator from conducting the case; examining criminal cases and issuing instructions concerning them; within the scope of their competence, withdrawing a criminal case from one investigative unit of a subordinate body conducting a preliminary investigation and transferring it to another investigative unit of that body or another subordinate body conducting a preliminary investigation; forwarding criminal cases together with an indictment to the prosecutor, etc.; petitioning the prosecutor to annul an unjustified procedural decision of an investigator, as well as to submit a petition concerning a ruling of an investigating judge; and, within the scope of their competence, issuing instructions and directions to the bodies of inquiry that are binding upon them). Even a simple enumeration of these powers of the head of the investigation department indicates the presence of a substantial volume of procedural actions and decisions in their activities. The procedural activities of the head of the investigation department in relation to a criminal case must necessarily be reflected in the materials of the criminal case. At the same time, the personal conduct of investigative actions in a criminal case by the head of the investigation department is possible only in the following cases: a) when they initiate a pre-trial investigation and subsequently transfer it to an investigator; b) when they accept an initiated criminal case into their own proceedings and personally investigate it, exercising the powers of an investigator (Part 3 of Article 59 of the Criminal Procedure Code).

Among the powers of the head of the investigation department, particular attention should be given to their right to consider complaints concerning the actions and decisions of an investigator in a criminal case (subparagraph 10) of Part 2 of Article 59 of the Criminal Procedure Code). This shortens the process of restoring the rights and freedoms of an individual in pre-trial criminal proceedings without the need to apply to the prosecutor or the investigating judge.

The exercise of the prosecutor's powers to submit a petition to the appellate court concerning a ruling of an investigating judge issued upon an investigator's petition does not affect the continuity of departmental control exercised by the head of the investigation department over the investigator's work and contributes to establishing the truth in the criminal case (subparagraph 8-1) of Part 2 of Article 59 of the Criminal Procedure Code).

Only the instructions of the head of the investigation department concerning the legal classification of the criminal offence and the scope of suspicion, forwarding the case to the prosecutor together with an indictment for approval and referral of the accused to trial, or termination of the criminal case (Part 4 of Article 59 of the Criminal Procedure Code) relate to the principal, key matters of the investigation. With respect to these matters, the investigator has the right to disagree with the opinion (written instruction) of the head of the investigation department and not to comply with such instructions until the matter has been resolved by a higher-ranking head of the investigation department or the prosecutor.

If, however, the investigator disagrees with the prosecutor's written instructions concerning the principal and other matters of the investigation (without suspending their execution), the investigator shall also have the right to appeal them to a higher-ranking prosecutor, whose decision shall be final, including for the head of the investigation department (Part 8 of Article 60, Part 4 of Article 193 of the Criminal Procedure Code). Such a procedure requiring unconditional compliance with the prosecutor's written instructions is обусловлен by the prosecutor's special role in criminal proceedings as one of the heads of criminal prosecution and a party to the prosecution, including at the judicial stages (where, incidentally, neither the investigator nor the head of the investigation department is present).

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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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