Commentary on Article 97. Security Measures for Victims, Witnesses, Suspects and Other Persons Participating in Criminal Proceedings of the Criminal Procedure Code of the Republic of Kazakhstan
Footnote. Article 97 was amended by Law of the Republic of Kazakhstan No. 180-VI dated 12 July 2018 (shall enter into force upon the expiry of ten calendar days after the date of its first official publication).
The article under commentary establishes the types of security measures and the forms of their practical implementation (Parts 1–4 of Article 97 of the CPC). An analysis thereof shows that security measures applied at the pre-trial and judicial stages of criminal proceedings are divided into procedural and non-procedural measures. The mechanism for applying all security measures is explained in the Law “On State Protection of Persons Participating in Criminal Proceedings”, while the methods and techniques for their implementation are set out in the orders of law enforcement and special bodies. Procedural security measures referred to in Parts 1, 2, and 4–5 of Article 97 of the CPC must necessarily be reflected in the materials of the criminal case: an official written warning to the person from whom threats originate (subparagraph 1) of Part 1 of Article 97 of the CPC); a resolution on keeping confidential the personal details of a protected participant (subparagraph 2) of Part 1 of Article 97 of the CPC); a resolution on the imposition of a preventive measure against the perpetrator of the offence (subparagraph 4) of Part 1 of Article 97 of the CPC); and a resolution prohibiting the perpetrator from approaching the protected person (subparagraph 5) of Part 1 of Article 97 of the CPC). This is necessary to ensure the legality and validity of procedural actions conducted with the participation of protected persons, as well as the admissibility of the results of such actions.
Thus, procedural security measures in criminal proceedings consist of the following. Upon establishing information indicating the existence of a threat to the life, health or property of protected persons, the body conducting the criminal proceedings shall issue an official warning to the person from whom a threat of violence or the commission of other acts prohibited by criminal law originates, concerning the possibility of bringing that person to criminal liability. A warning issued by the body conducting the criminal proceedings shall be announced to the person against signature (Article 8 of the aforementioned Law). Restriction of access to information about a protected person consists of removing information concerning the person's personal identification data from the criminal case materials and storing it separately from the main proceedings, as well as using a pseudonym for that purpose (Article 9 of the aforementioned Law). Where threats originate from the accused (suspect), the body conducting the criminal proceedings shall be entitled, in accordance with the provisions of the CPC, to impose on the latter a preventive measure that excludes the possibility of applying (organizing the application of) violence or committing (organizing the commission of) other criminal offences, and shall issue a reasoned resolution to that effect. A copy of the resolution shall be served on the person against whom it has been issued. The protected person shall be notified of the decision taken. If the preventive measure is changed or the accused (suspect) escapes, the protected person shall be notified immediately (Article 10 of the aforementioned Law).
It should also be borne in mind that the imposition of a preventive measure may sometimes serve as a means of protecting the suspect or accused themselves, for example, a person who has actively repented, from other accomplices to the crime. However, placing such an accused person in a place of deprivation of liberty during the investigation does not preclude the continued application of appropriate security measures in respect of that person by the administration of a pre-trial detention facility or temporary detention facility. Pursuant to Article 18 of the Law dated 30 March 1999 “On the Procedure and Conditions for the Detention of Persons in Special Institutions and Special Premises Ensuring Temporary Isolation from Society”, where a threat to the life and health of a suspect or accused person arises, or a threat of an offence against the person of other suspects and accused persons arises, employees of places of detention are also obliged to immediately take measures to ensure the personal safety of the suspect or accused person in respect of whom such a threat has arisen.
Among the security measures, the law permits the application of a procedural coercive measure in the form of a prohibition on approaching (subparagraph 5) of Part 1 of Article 97 of the CPC). The procedural form of this security measure is governed by Article 165 of the CPC and consists of the following. Where there is a real threat, or where a suspect or accused person has committed a criminal offence involving the use of violence or the threat of its use against family members and minors, the person conducting the pre-trial investigation, upon receiving a written application from the victim or another person subject to protection, shall issue a resolution initiating a motion before the court for authorization of a prohibition on approaching and shall forward it to the prosecutor. Certified copies of the criminal case materials confirming the need to apply the prohibition on approaching shall be attached to the resolution. Having examined the submitted materials, the prosecutor shall either support the motion or issue a reasoned resolution refusing to support it. If the prosecutor supports the motion, the prosecutor shall forward the motion and copies of the case materials to the court. Having examined the motion and the submitted case materials, the investigating judge shall issue a resolution authorizing the prohibition on approaching or refusing to authorize it. A resolution authorizing or refusing to authorize a prohibition on approaching may be appealed or challenged by way of a protest. In the event of a violation of the prohibition on approaching, a monetary penalty may be imposed on the suspect or accused person in accordance with the procedure provided for by Articles 159 and 160 of the CPC, and a preventive measure may also be applied.
Non-procedural personal security measures for participants in criminal proceedings (subparagraph 3) of Part 1 and Part 4 of Article 97 of the CPC) are highly diverse in nature. They are applied pursuant to an instruction issued by the body conducting the criminal proceedings and are implemented in the following forms. Thus, where information is established indicating the existence of a threat to the life, health or property of protected persons, the bodies responsible for ensuring security shall, with their consent, provide personal protection for such persons and protect their homes and property. Where necessary, fire and security alarm systems and technical surveillance equipment may be installed with the consent of the protected person; telephone numbers and state registration plates of the vehicles used may also be changed (Article 14 of the aforementioned Law).
Taking into account the degree of threat to the life and health of protected persons, the bodies responsible for ensuring security may, in accordance with the established procedure, provide such persons with weapons, special personal protective equipment and technical devices for recording unlawful attacks committed against them and notifying them of danger. The storage, carrying and use by protected persons of weapons issued to them shall be carried out in accordance with the Law dated 30 December 1998 “On State Control over the Circulation of Certain Types of Weapons” (Article 15 of the aforementioned Law).
Where necessary, protected persons who have reached the age of majority may, with their consent, and minors may, with the consent of their parents or other legal representatives, be temporarily placed in locations where their safety will be ensured. The period of stay at such a location shall be agreed upon between the protected persons and the body responsible for providing protection (Article 16 of the aforementioned Law). The supervising prosecutor shall also be mandatorily notified confidentially within twenty-four hours of the adoption of this security measure (Part 4-1 of Article 97 of the CPC). A decision to impose this security measure (the execution of which shall be suspended in the meantime) may be appealed by the protected person to the court or the prosecutor (Part 6 of Article 6, Article 97 of the CPC).
By decision of the body responsible for ensuring security, a prohibition may be imposed for a period determined by that body on the disclosure of information concerning the identity of protected persons, their place of residence and other information about them by address bureaux, passport services, divisions of the authorized body responsible for road traffic safety, automated telephone information services and other information and reference databases, regardless of their departmental affiliation, except in cases where such information is established in accordance with the prescribed procedure in connection with proceedings in another criminal case (Article 17 of the aforementioned Law).
With the consent of protected persons or upon their application, they may be transferred to another temporary or permanent job (position) or place of study, or relocated to another temporary or permanent place of residence. State bodies and state organizations, within the limits of their competence, shall be obliged to provide assistance in finding employment and arranging admission to educational institutions for protected persons (Article 18 of the aforementioned Law).
Upon application by protected persons or with their consent, they may be issued identity documents and other documents containing modified personal identification data. New personal identification data shall be selected in mandatory coordination with the protected person or by the protected person themselves; in the case of minors, the consent of their parents or other legal representatives shall be required (Article 19 of the aforementioned Law).
In exceptional cases, where the safety of a protected person cannot be ensured by other measures, their appearance may be changed upon their application or with their consent; in the case of a minor, the written consent of their parents or other legal representatives shall be required (Article 20 of the aforementioned Law).
Cancellation of security measures shall be permitted by the body conducting the criminal proceedings only where there is information indicating that nothing threatens the safety of a specific participant in the criminal proceedings. In this regard, it is particularly important to notify the person immediately of the cancellation of security measures or the disclosure of information about them to persons participating in the proceedings in the case (Part 6 of Article 97 of the CPC). A decision to cancel security measures provided for by Article 7 of the Law “On State Protection of Persons Participating in Criminal Proceedings” may be appealed by the protected person to the court or the prosecutor, which suspends its execution (Part 6 of Article 97 of the CPC).
As a general rule, the body that adopted the decision to apply a security measure shall be the body that cancels it. According to the meaning of the provisions of the CPC and the Law “On State Protection of Persons Participating in Criminal Proceedings”, responsibility for ensuring security measures on the basis of the decision adopted shall rest, throughout the entire proceedings in the case and regardless of the stage at which the criminal case is being processed, primarily with the relevant units of the criminal prosecution bodies in whose possession the criminal case was before it was brought to court. Where necessary, other state bodies may also be involved in ensuring certain types of security measures (for example, healthcare authorities where a change in appearance is required; local executive bodies where relocation to another place of residence or a change of workplace or place of study is required, etc.).
In accordance with the Law “On Operational-Investigative Activities” (Article 23), citizens who assist bodies carrying out operational-investigative activities are also subject to state protection, which supplements the capabilities of criminal proceedings in establishing the circumstances to be proved in a case. Where a real threat of unlawful encroachment upon the life, health or property of citizens arises in connection with their assistance to bodies carrying out operational-investigative activities, as well as upon the life, health or property of their family members and close relatives, those bodies shall be obliged to take all necessary measures to prevent unlawful actions, identify the perpetrators and bring them to liability, as well as, where necessary, conduct special measures to protect such persons in accordance with the laws of the Republic of Kazakhstan.
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, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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