Consideration by the investigating judge of petitions for the authorization of other procedural actions and decisions at the pre-trial stages of the criminal process
Let us recall once again that article 55 of the draft CPC lists all types of actions and decisions, petitions for the authorization of which are considered by the investigating judge at the pre-trial stages of the criminal process. This list can be considered exhaustive, since the norm does not specify that a judge's sanction can be given in other cases, with the exception of those listed. However, other norms of the draft CPC provide for cases where the investigating judge also authorizes other procedural actions and decisions. In particular: 1) The seizure of property is allowed only with the approval of the court. However, in accordance with part 9 of Article 161 of the draft CPC, in cases where there are grounds to believe that the property subject to arrest may be hidden or lost, the person conducting the pre-trial investigation has the right to order the suspension of transactions and other transactions with the property, or it may be seized before receiving court approval with notification from the prosecutor. and the court within twenty-four hours. In this regard, the question arises as to what actions the prosecutor and the investigating judge should take upon receiving this notification from the investigator? The draft CPC does not specify this.
In this regard, following the procedure for authorizing the arrest of property by the investigating judge, the judge in these cases acts in the same manner. 2) In addition to the list of issues that can be appealed to the investigating judge, part eight of Article 192 of the draft CPC provides that the suspect or victim has the right to appeal against the unjustified delay in the investigation and file a motion to the prosecutor to set a certain time limit during which the person conducting the criminal prosecution must complete the investigation in full or appeal to the prosecutor. the court in accordance with the procedure provided for by this Code.
Consideration by the investigating judge of petitions for the authorization of other procedural actions and decisions at the pre-trial stages of the criminal process
3) According to the draft CPC, the prosecutor, at the request of a participant in the process, has the right to verify the existence of grounds for reviewing a judicial act based on newly discovered circumstances. The second part of Article 505 of the CPC provides that if the prosecutor does not see grounds for initiating proceedings due to newly discovered circumstances, he refuses to do so with his reasoned decision, sends a copy of the decision to the applicant within three days explaining to him the right to appeal the decision to a higher prosecutor and to the court in accordance with the procedure provided for in Articles 105 and 106 of this Code (i.e.E. to the investigating judge). 4) The fourth part of Article 240 of the draft CPC provides that after reviewing the non-attached materials of the MPM, a person may apply for their inclusion in the materials of the criminal case.
The petition is being considered by the prosecutor. If the prosecutor refuses to satisfy the petition, then, as a general rule, his refusal may be appealed to the investigating judge. 5) According to the fourth part of Article 261 of the draft CPC on the refusal to satisfy the petition to attach the submitted object or document to the case as material evidence, the person conducting the pre-trial investigation issues a decision, which also, as a general rule, may be appealed. to the investigating judge. 6) The third part of Article 268 of the draft CPC provides, in cases stipulated by law, for the compulsory receipt of samples from the victim, witness, as well as from the applicant and the person whom the applicant explicitly identifies as the person who committed the crime, but this is allowed only with the approval of the prosecutor or by court decision. 7) According to the fifth part of Article 279 of the draft CPC, the total period of stay of a person in respect of whom a forensic medical or forensic psychiatric examination is being conducted in a medical organization is thirty days. If it is impossible to complete the forensic investigations, the specified period may be extended by thirty days at the reasoned request of the expert (commission of experts) in accordance with the requirements of the second part of Article 14 of this Code, i.e. by the investigating judge. The petition must be submitted to the court no later than three days before the expiration of the examination period and resolved within three days from the date of receipt.
If the court refuses to extend the term, the person must be discharged from the medical organization. The head of the medical organization shall notify the person in respect of whom the examination is being conducted, his lawyer, legal representative, representative, as well as the body conducting the criminal proceedings, of the filed petition and the results of its consideration by the court. A person in respect of whom a judicial examination is being conducted in a medical organization, his defender, legal representative, representative has the right to appeal against the decision of the investigating judge to extend the period of its proceedings in accordance with the procedure provided for by the CPC. 8) In accordance with the first part of article 515 of the draft CPC, when establishing the fact of mental illness of a person against whom detention was previously applied as a preventive measure, transfer to a special medical organization providing psychiatric care adapted for keeping patients in strict isolation is carried out by an investigating judge in accordance with article 55 of the draft The Criminal Procedure Code. 9) Article 542 of the draft CPC provides that in cases where a minor suspected of living and upbringing conditions cannot be left in his former place of residence, he may be placed in a special institution by court order. Minors specified in the first part of this article may stay in a special institution for no more than thirty days. In exceptional cases, the term may be extended by the court for up to three months. 10) Article 579 of the draft CPC provides that when providing international legal assistance at the request of the requesting party, the discovered property may be seized in compliance with the requirements of Article 573 of this Code (i.e., by court order) and transferred to the competent authority of the requesting party as evidence in criminal proceedings or for return to the owner. 11) Article 590 of the draft CPC provides for the temporary detention of a person put on the international wanted list by a foreign State. To do this, the prosecutor submits, twelve hours before the expiration of the seventy-two-hour period of detention of this person to the district and equivalent court, a petition for the application of temporary detention for a period of forty days from the moment of detention or another period established by the relevant international treaty of the Republic of Kazakhstan until the request for his extradition is received. The investigating judge of the district and equivalent court immediately, but no later than seventy-two hours after the person's arrest, examines the petition and issues a decision on temporary detention or refusal of temporary detention.
The prosecutor shall immediately notify the institution of a foreign State that has sent or is able to send a request for extradition or a request for extradition arrest, with a proposal on the time and place of extradition. If a request is received for the extradition of a person before the end of the period of temporary detention, the decision of the investigating judge on temporary detention becomes invalid from the moment the investigating judge issues a decision on the application of extradition arrest in respect of this person.
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