Commentary on Article 62. Head of the Inquiry Body of the Criminal Procedure Code of the Republic of Kazakhstan
1. During pre-trial investigations into criminal offenses provided for in Article 191 of this Code, the powers of the head of the inquiry body, within the scope of their competence, shall be exercised by the heads of the Main Directorate (Department), Directorate, and Division of the inquiry body, as well as their deputies.
2. The head of the inquiry body shall organize the conduct of necessary operational-search, criminal-procedural, including covert investigative actions, for the purpose of identifying signs of criminal offenses and the persons who committed them, as well as preventing and suppressing criminal offenses. In accordance with the procedure established by this Code, the head shall submit the results of operational-search measures and covert investigative actions to the pre-trial investigation body.
3. In cases involving criminal offenses falling within the jurisdiction of preliminary investigation bodies, the head of the inquiry body shall:
1) ensure the conduct of urgent investigative actions;
2) organize the execution of instructions issued by the prosecutor, the head of the investigative department, and the investigator, including instructions concerning the performance of individual investigative and other actions and the application of protection measures for victims, witnesses, and other persons participating in criminal proceedings;
3) organize the execution of court instructions.
If the head of the inquiry body disagrees with the procedural decisions, actions (inaction) of the prosecutor, they shall have the right to appeal them to a superior prosecutor.
4. In cases involving criminal offenses for which pre-trial investigations are conducted by inquiry bodies, the head of the inquiry body shall monitor the timeliness and legality of the actions of inquiry officers and shall have the right to:
1) examine cases being handled by them;
2) issue instructions regarding the performance of individual investigative and other procedural actions, the classification of the act committed by the suspect, and the transfer of a case or materials from one inquiry officer to another;
3) assign the inquiry to several inquiry officers;
4) initiate a pre-trial investigation and personally conduct the inquiry, either by accepting the case into their own proceedings or by performing individual procedural actions;
5) examine complaints concerning the actions (inaction) and decisions of an inquiry officer;
6) petition the prosecutor to submit a motion against a ruling of the investigating judge.
5. The head of the inquiry body shall approve resolutions initiating motions for the seizure of property, the announcement of an international search, the referral of suspects or accused persons who are not held in custody to a medical organization for a stationary forensic medical or forensic psychiatric examination, the selection of detention as a preventive measure in respect of a suspect or accused person, the extension of the period of detention; the modification or cancellation of detention as a preventive measure; the conduct of a search; the removal of a suspect or accused person from office, the imposition of a restraining order prohibiting approach; the transfer of a suspect or accused person under escort; and the announcement of a search for a suspect or accused person. The head shall approve the indictment; approve the protocol on a criminal misdemeanor; approve the detention protocol concerning persons suspected of committing criminal offenses and the resolution terminating the pre-trial investigation; forward criminal cases accompanied by an approved indictment to the prosecutor; forward criminal misdemeanor cases to the court in protocol form and under summary proceedings; approve resolutions on the application of summary proceedings in criminal cases involving minor offenses and forward them to the prosecutor; and ensure that measures are taken to eliminate the circumstances that contributed to the commission of criminal offenses.
In cases provided for by this Code, the head of the inquiry body shall notify the prosecutor of the establishment of circumstances that make it possible to conclude a procedural agreement.
Where the grounds provided for by this Code exist, the head of the inquiry body shall apply summary proceedings.
6. Instructions issued by the head of the inquiry body in a case may not restrict the independence of the inquiry officer or the rights established for them under Article 63 of this Code. Instructions shall be issued in writing and shall be binding, but may be appealed to the prosecutor. An appeal by an inquiry officer to the prosecutor against the actions (inaction) of the head of the inquiry body shall not suspend their execution, except in the case provided for in Part Six of Article 63 of this Code.
Footnote. Article 62 was amended by the Laws of the Republic of Kazakhstan dated 11 July 2017 No. 91-VI (shall enter into force upon the expiration 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 expiration 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).
The provision of Article 62 must be understood in its organic relationship with the provision of Article 61 of the CPC. The head of the inquiry body is its principal executive, in other words, the head of the criminal prosecution body or law enforcement agency (District Department of Internal Affairs, City Department of Internal Affairs, Police Department, Ministry of Internal Affairs, etc.), as well as the heads of specialized inquiry bodies within the system of law enforcement and special state bodies, subject to the exceptions provided for in Article 61 of the CPC.
An analysis of the provisions of Article 62 of the CPC makes it possible to identify the procedural powers of the head of the inquiry body: powers as the organizer of inquiry activities as a whole within the structure of the criminal prosecution body (Part 2 of Article 62 of the CPC); powers relating to the work of inquiry officers with cases in which preliminary investigation is mandatory (Part 3 of Article 62 of the CPC); powers relating to the activities of inquiry officers under the inquiry procedure, accelerated pre-trial investigation, and protocol form (Part 4 of Article 62 of the CPC), as well as summary proceedings (Articles 629-1—629-3 of the CPC).
Separately, the head's procedural activities may be identified in relation to granting mandatory legal force, in the form of consent or approval by way of a resolution, to a large group of interim and final documents prepared by inquiry officers. The principal list of such documents is provided in Part 5 of Article 62 of the CPC. Without such approval, their decisions will not receive procedural endorsement at the level of the prosecutor or investigating judge. The CPC also regulates other cases in which procedural decisions of an inquiry officer must be approved by the head of the inquiry body (resolutions of an inquiry officer on the conduct of procedural and investigative actions, instructions to conduct covert investigative actions, etc.).
Under the meaning of Part 2 of Article 62 and Articles 95–98 of the CPC, it is precisely the head of the inquiry body, as the person possessing the greatest capacity to manage the forces and resources of the criminal prosecution body, who organizes the execution of instructions issued by the court, prosecutor, and investigator concerning the application of security measures in respect of participants in criminal proceedings. Furthermore, it is the head who informs the prosecutor of the emergence of circumstances that make it possible for the prosecutor to conclude a procedural agreement in the form of a plea bargain or a procedural cooperation agreement.
It should be noted that the powers of the head of the inquiry body when issuing written instructions to an inquiry officer in a criminal case are similar to the powers of the head of the investigative department when issuing written instructions to an investigator. An inquiry officer's appeal to the prosecutor against instructions issued by the head of the inquiry body (which are binding upon the inquiry officer) shall not suspend their execution (Part 6 of Article 62 and Part 6 of Article 63 of the CPC), with the exception of fundamental issues concerning the criminal case under investigation: the classification of the suspect's act and the scope of the suspicion, and the referral of the case to the prosecutor with an indictment or the termination of the criminal case.
In the context of the foregoing, the head of the inquiry body, as one form of their procedural activity, shall have the right to initiate a pre-trial investigation, accept the criminal case into their own proceedings and personally conduct the inquiry in any of its forms, as well as perform individual procedural actions in a case being handled by an inquiry officer (Subparagraph 4 of Part 4 of Article 62 of the CPC).
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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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