Commentary on Article 96. Obligation to Take Security Measures for Victims, Witnesses, Suspects, Accused Persons and Other Persons Participating in Criminal Proceedings of the Criminal Procedure Code of the Republic of Kazakhstan
1. The body conducting criminal proceedings shall be obliged to take security measures in respect of a suspect, accused person, victim, witness and other persons participating in criminal proceedings, as well as members of their families and close relatives, if there is information indicating a threat of violence or other acts prohibited by criminal law being committed against them in connection with the criminal proceedings.
A security measure in the form of restricting access to information may be applied for the purpose of protecting against the disclosure of state secrets or information concerning the intimate aspects of the private lives of persons participating in the case.
2. Where it is necessary to ensure the security of a suspect, accused person, defendant or convicted person with whom a procedural agreement has been concluded, as well as their close relatives, the state protection and security measures provided for by this Code and the laws shall be applied with the consent of the said persons.
3. The body conducting criminal proceedings shall take security measures in respect of the persons specified in Parts One and Two of this Article on the basis of their oral (written) application or on its own initiative, issuing an appropriate resolution to that effect.
4. Applications submitted by persons participating in criminal proceedings, members of their families and their close relatives requesting the adoption of security measures shall be considered by the body conducting criminal proceedings no later than twenty-four hours from the moment of their receipt. The applicant shall be immediately notified of the decision taken, and a copy of the relevant resolution shall be sent to them.
5. The applicant shall have the right to appeal to the prosecutor or the court against a refusal to grant a motion for the adoption of security measures.
6. A refusal to adopt security measures shall not prevent a repeated application for the adoption of the said measures if circumstances arise that were not reflected in the previously submitted application.
First of all, pursuant to Part 1 of Article 95 of the CPC, making a decision on the application of security measures is an obligation of the body conducting criminal proceedings, which may and is permitted to be carried out simultaneously with the acceptance and registration of applications and reports concerning criminal offences. The specific nature of applications received from individuals and legal entities, namely applications and reports concerning criminal offences, obliges the bodies conducting criminal proceedings to do so. Even the referral of a registered application or report according to investigative jurisdiction or jurisdiction of the court does not release them from the obligation to adopt and implement such measures. In these cases, the criminal prosecution body is obliged to take measures to prevent or suppress a crime, as well as to identify and secure traces of the crime (Article 196 of the CPC).
Unlike the provisions of Article 95 of the CPC, the provisions of Article 96 of the CPC place a different category of persons under state protection: suspects, accused persons, defendants, convicted persons, including those who have concluded a procedural agreement, victims, witnesses, other persons participating in criminal proceedings, as well as members of their families and close relatives. As the basis for initiating such protection, the law uses the existence of factual information indicating that violence or other criminal offences may be committed against the said persons in connection with their participation in criminal proceedings. Information concerning such threats may originate from the said persons themselves, members of their families and close relatives, or may be contained in materials relating to covert investigative actions in the case, operational-search activities of inquiry bodies, or counterintelligence activities of special state bodies.
3. The procedure for adopting security measures is as follows. Upon receiving the application specified in Part 3 of Article 96 of the CPC concerning the existence of a real threat to the security of a protected person (an oral application shall be entered into the record, including the record of the main court hearing), the body conducting criminal proceedings shall be obliged, no later than twenty-four hours from the moment of its receipt, to make a decision on applying or refusing to apply security measures in respect of the said person. In cases requiring immediate action, the decision to apply security measures shall be made without delay.
The body ensuring security shall issue a resolution on the application of security measures, specifying the particular security measures in respect of a particular person and the period of their application. The applicant shall be immediately notified of the decision taken, and a copy of the relevant resolution shall be sent to them. The protected person shall be issued an instruction, compliance with which is mandatory for the purpose of ensuring their security. Amendments to the instructions, at the request of the protected person, may be made only with the consent of the body ensuring security. A refusal to apply security measures may be appealed by the protected person to the court or the prosecutor. The complaint shall be subject to immediate consideration. The security measures adopted must not infringe upon the housing, employment, pension or other rights of protected persons and other persons (Article 23 of the Law “On State Protection of Persons Participating in Criminal Proceedings”). Decisions adopted by bodies ensuring security within their competence shall be binding upon officials of executive bodies, institutions and organizations to which such decisions are addressed (Article 24 of the aforementioned Law).
A refusal to apply security measures may be appealed by the protected person to the court, the investigating judge or the prosecutor and shall not prevent a repeated application for the adoption of the said measures if circumstances arise that were not reflected in the previously submitted application (Parts 5–6 of Article 96 of the CPC). The complaint shall be subject to immediate consideration. Regardless of whether security measures have been adopted, the body conducting criminal proceedings shall, where there are grounds for doing so, be obliged to commence pre-trial investigation in connection with the discovery of a threat of an act prohibited by criminal law being committed against a person participating in criminal proceedings (Parts 3–5 of Article 96 of the CPC, Article 23 of the Law “On State Protection of Persons Participating in Criminal Proceedings”).
Persons subject to state protection have a specific set of rights and obligations, which are partially provided for by the provisions of Articles 95–96 of the CPC and are set out in detail in the Law “On State Protection of Persons Participating in Criminal Proceedings”. In particular, they have the right to: 1) know about the security measures being applied in respect of them; 2) submit motions for the application or non-application of specific security measures in respect of them; 3) appeal unlawful decisions and actions of officials carrying out security measures to a higher-level body ensuring security, the prosecutor or the court. Persons subject to state protection are obliged to: 1) comply with the instructions issued by the body ensuring security, as well as its lawful requirements; 2) immediately inform the body ensuring security of every instance of a threat or unlawful actions against them; 3) take care of property provided to them for the purpose of ensuring security; in the event of the sale, transfer to another person or damage of property transferred for use for security purposes, the protected person shall bear liability in accordance with the laws of the Republic of Kazakhstan; 4) not disclose information about the security measures being applied in respect of them; 5) where necessary, undergo training in the use of weapons, personal protective equipment and special equipment (Articles 25–26 of the aforementioned Law).
Upon elimination of the threat to the security of the protected person, or if other grounds arise for cancelling the security measures, the body conducting criminal proceedings shall issue a reasoned resolution, which shall be immediately announced to the protected person. The said resolution may be appealed to the prosecutor or the court. The specific nature of the complaint suspends the execution of the resolution until the matter is decided by the court or the prosecutor (Part 6 of Article 97 of the CPC).
Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan, authored by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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