Commentary to article 56. General conditions for the exercise of powers by an investigating judge The Criminal Procedure Code of the Republic of Kazakhstan

The investigating judge shall exercise his powers in accordance with the rules of this article and the specifics provided for in the relevant articles of this Code.

The investigating judge considers issues within his competence individually without holding a court session.

If it is necessary to investigate the circumstances relevant to making a lawful and reasonable decision, the investigating judge decides to hold a court session with the participation of the relevant persons and the prosecutor.

When considering the issues specified in paragraphs 1), 2), 5), 6), 7) and 8) of the first part, paragraphs 2) and 3) of the second part of Article 55 of this Code, holding a court session is mandatory. In the event that a court session is required, the defense party and the prosecutor are notified in advance of the time and place of the court session.

By order of the investigating judge, the court session may be held via video link. A protocol is kept during the court session.

The investigating judge has the right:

1) require the body conducting the pre-trial proceedings to provide additional information on the issue under consideration.;

2) to get acquainted with all the materials of the relevant pre-trial proceedings and to examine them;

3) to summon the participants of the process to the court session and receive from them the necessary information on the criminal case.

An investigating judge should not prejudge issues that, in accordance with this Code, may be the subject of judicial review when resolving a case on its merits, give instructions on the direction of the investigation and the conduct of investigative actions, take actions and make decisions instead of the persons conducting pre-trial proceedings and the supervising prosecutor, as well as the court considering the case on its merits.

If a suspect claims to have been subjected to torture and other illegal acts or if there are signs of violence, the investigating judge must instruct the supervising prosecutor to immediately verify these facts.

When establishing the facts of illegal restrictions or other violations of human rights and freedoms, legally protected interests of organizations, the investigating judge issues a private ruling to resolve the issue of liability of persons who committed violations of the law.

The investigating judge exercises his powers in accordance with the rules of this Article and the specifics provided for in the relevant articles of this Code, for example, in accordance with the procedure for authorizing detention established by Articles 147, 148 of the CPC, the judicial procedure for reviewing complaints about actions (inaction) and decisions of the prosecutor, the prosecution authorities established by Article 106 of the CPC.

In cases where there is no need to request additional materials or to listen to representatives of the parties, the investigating judge considers issues within his competence individually without holding a court session.

In the third paragraph of the second part of the commented article (as amended by ZRK dated 07.11.2014) indicates in which cases the investigating judge is obliged to hold court sessions to consider issues within his competence. Holding a court session is mandatory for: sanctioning detention; house arrest; extradition arrest; extension of previously chosen preventive measures; application of bail; seizure of property; consideration of issues related to the sale of physical evidence; petitions from lawyers; deposition of testimony.

3. Endowing the courts with the functions of authorizing preventive measures and procedural coercion, reviewing complaints against the actions of the preliminary investigation body and the prosecutor gives them the authority to require additional information on the issue under consideration from the body conducting pre-trial proceedings. Therefore, it should be borne in mind that an investigating judge who has access to state secrets issued in accordance with the established procedure has the right to demand materials obtained as a result of secret investigative actions when they are clothed in the form provided for by the criminal procedure legislation. If necessary, the investigating judge should have full access to all information about the sources and methods of obtaining information.

In order to exclude a judicial error, an investigating judge who has access to state secrets issued in accordance with the established procedure has the right to get acquainted with all the materials of the relevant pre-trial proceedings and examine them, summon the relevant persons to the court session and receive from them the necessary information on the criminal case.

An investigating judge should not prejudge issues that, in accordance with this Code, may be the subject of judicial review when resolving a case on its merits, for example, he does not draw conclusions about the evidence or lack of proof of guilt, the admissibility of evidence, and does not resolve issues related to sentencing. His powers do not include the right to give instructions on the direction of the investigation and the conduct of investigative actions, to take actions and make decisions instead of persons conducting pre-trial proceedings, to check other cases in the proceedings of the body of inquiry that are not related to the case under consideration, to give instructions on the conduct of certain investigative and other procedural actions, on the qualification of the suspect's act, the transfer of the case (material) from one investigator to another, or assign an inquiry to several investigators. When exercising his powers, the investigating judge should not replace the prosecutor and make decisions in his place, for example, to authorize the production of actions requiring prosecutorial rather than judicial sanction.

If a suspect claims that torture and other illegal acts have been inflicted on him or that there are signs of violence, the investigating judge must instruct the supervising prosecutor to immediately verify these facts, explain to the suspect the right to compensation or elimination of harm caused by illegal actions of the criminal prosecution authorities, and the procedure for exercising this right provided for in Chapter 4 of this Code.

When establishing the facts of illegal restrictions or other violations of human rights and freedoms, legally protected interests of organizations, the investigating judge issues a private ruling to resolve the issue of liability of persons who violated the law, within the limits of his authority, takes measures to restore the violated rights and legitimate interests of participants in criminal proceedings, as well as other individuals or legal entities.

By order of the investigating judge, the court session may be held via video link. A protocol is kept during the court session.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

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