On some issues of sanctioning preventive measures
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 24, 2020 No. 1.
In order to ensure the uniformity of judicial practice in sanctioning preventive measures, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications.
In criminal proceedings, preventive measures in the form of detention, house arrest, and bail are subject to court approval.
Consideration of petitions for the authorization of a preventive measure falls within the competence of investigating judges at the stage of pre-trial proceedings. If the parties file a complaint and/or petition, the decisions of the investigating judge on the authorization of a preventive measure are reviewed by a judge of the relevant regional or equivalent court.
The issues of choosing, canceling, changing, and extending a preventive measure at the judicial stages are within the competence of the court considering the criminal case.
When making a decision on authorizing a preventive measure, as well as extending its term, the investigating judge must ensure that the rights of the suspect and the accused are respected, guaranteed by article 16 of the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution), proclaimed by article 9 of the International Covenant on Civil and Political Rights (New York, December 16, 1966, ratified by the Law of the Republic of Kazakhstan No. 91 dated November 28, 2005, entered into force for the Republic of Kazakhstan on April 24, 2006) and provided for by the norms of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC).
The decision to authorize a preventive measure in the form of detention is made by the investigating judge at the place of the pre-trial investigation or at the place of detention of the suspect, and in cases provided for by Chapter 57 of the CPC, at the location of the body that sent the petition to the court.
Further extension of the period of detention is subject to review by the investigating judge at the place of the pre-trial investigation.
Based on the results of consideration of the petition for the authorization of a preventive measure in the form of detention of a suspect or accused, the investigating judge issues one of the decisions provided for in part seven of Article 148 of the CPC.
According to paragraph 3) of the seventh part of Article 148 of the CPC, in case of refusal to authorize detention, the investigating judge has the right to choose another measure of restraint provided for in the first part of Article 137 of the CPC. In the absence of grounds for choosing another preventive measure, the investigating judge issues a decision to refuse to authorize detention.
The grounds for applying a preventive measure are such factual circumstances that indicate the real possibility of the suspect or accused committing the actions listed in the first part of Article 136 of the CPC. In the absence of such grounds, a preventive measure cannot be chosen.
In addition, the preventive measure is chosen taking into account the circumstances provided for in the first part of Article 138 of the CPC.
The courts should take into account that, in accordance with the second part of Article 138 of the CPC, the gravity of the crime committed cannot be the only reason for choosing a preventive measure in the form of detention, with the exception of crimes listed in the second part of Article 136 of the CPC.
It is not allowed to apply a preventive measure in the form of detention in respect of a person suspected or accused of committing criminal offenses listed in part three of Article 136 of the CPC, except in cases when this person is suspected of committing a crime as part of an organized group or criminal community (criminal organization) or tried to escape or escaped from the criminal persecution or trial.
If a person is suspected or accused of committing not only a crime in the field of economic activity, but also another crime provided for in the Special Part of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), which does not exclude the use of detention, the judge has the right, if there are grounds for that, to choose this type of preventive measure.
The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
In accordance with the first part of Article 147 of the CPC, the detention of a suspect, accused, or defendant in the commission of crimes of minor and moderate gravity, for which the law provides for a penalty of imprisonment for a period of less than five years, may be applied in exceptional cases in the presence of the circumstances specified in paragraphs 1) to 7) of part one. Articles 147 of the CPC.
The following should be taken into account:
The presence of a permanent place of residence in another administrative-territorial unit other than the crime scene cannot be regarded as the absence of a permanent place of residence in the territory of the Republic of Kazakhstan.;
Non-identification refers to the absence of documents, the list of which is given in the Note to Article 300 of the CPC.;
information about the violation of a previously chosen preventive measure or a measure of procedural coercion by the pre-trial investigation body must be provided, indicating this, for example, being on his own recognizance and proper behavior, the suspect or accused did not appear without valid reasons at the summons of the body conducting the criminal process, changed his place of residence without notifying the pre-trial investigation body, etc.;
the fact that a person can hide from a criminal prosecution body or a court may be evidenced, for example, by confirmed facts of the sale of property belonging to him by right of ownership, the purchase of travel tickets for the purpose of leaving the place of residence and the country, de-registration at the place of residence, de-military registration, the presence of citizenship of a foreign state, the absence of in the territory of the Republic of Kazakhstan, permanent place of residence, work, family, availability of a source of income abroad, financial (property) resources, etc.;
the suspicion (accusation) of a person committing a crime as part of a criminal group or a criminal community must be confirmed by concrete evidence of all the signs of these crimes established by the relevant paragraphs of Article 3 of the Criminal Code and paragraph 11 of the regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001 No. 2 "On certain issues of the application by courts of legislation on liability for banditry and other criminal offences offenses committed in complicity."
Persons with a criminal record for a previously committed grave or especially grave crime should be considered to have criminal records that have not been removed or expunged in accordance with the procedure established by law, confirmed by information from the Committee on Legal Statistics and Special Records of the Prosecutor General's Office of the Republic of Kazakhstan.;
data indicating the continuation of criminal activity by suspects or accused persons is information obtained during operational search and investigative measures, indicating that the person continues to engage in criminal activity, threatens participants in criminal proceedings, accomplices of the crime, as well as personality traits indicating a tendency to commit new criminal offenses.
The circumstances provided for in paragraphs 1) to 7) of the first part of Article 147 of the CPC are only conditions under which it is possible to choose a preventive measure in the form of detention.
The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).
The body conducting the criminal proceedings, in accordance with the requirements of articles 136 to 140 of the CPC, decides on the application of one of the preventive measures listed in the first part of Article 137 of the CPC.
In accordance with the requirements of part two of Article 140 of the CPC, part two of Article 147 of the CPC, the body conducting the criminal procedure issues a decision on the application of a preventive measure and on the initiation of a petition to the investigative court for the sanction of the chosen preventive measure. The decision of the pre-trial investigation body must specify the period of detention and house arrest.
In the event of the expiration of the terms of detention and detention provided for in part four of Article 131, Article 151 of the CPC, the suspect, the accused, in accordance with the requirements of part two of Article 133 and part five of Article 151 of the CPC, is subject to immediate release.
The authorization of a preventive measure in the form of detention is allowed after the court checks the validity of a person's suspicion of committing a crime. In this regard, the petition of the criminal prosecution body and the materials attached to it must contain information indicating suspicion of the commission of a crime by this particular person.
Reasonable suspicion should be understood as a set of factual data indicating the possible commission of a crime by a specific person.
Such factual data include: a person was caught committing a crime or immediately after it was committed; the victim or eyewitnesses identified the person as having committed the crime; traces of the crime were found on the person or his clothes, with him or in his home, etc.
When verifying the validity of a person's suspicion of committing a crime, investigating judges need to take into account whether a crime event actually took place, whether there is sufficient data indicating the presence of signs of a criminal offense and the likelihood of its commission by this person.
While verifying the validity of a person's suspicion of committing a crime, the court does not have the right to discuss the question of the person's guilt and the assessment of evidence. When verifying the validity of a suspicion, the court shall establish the reliability of the evidence presented by the pre-trial investigation body and its sufficiency to raise reasonable suspicion against the person. Verification of the validity of suspicion also includes verification of the conformity of the description of the crime event in the case file and the applied article of the Special Part of the Criminal Code in its qualification.
Leaving a judge without checking the validity of a person's suspicion of committing a crime should be regarded as a significant violation of the criminal procedure law, leading to the cancellation of the decision to authorize a preventive measure in the form of detention.
The validity of a person's suspicion of committing a crime is checked by the investigating judge throughout the pre-trial investigation, including when resolving the issue of extending the period of detention, with the exception of extending his term during the review of the case materials.
The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).
Consideration by an investigating judge of a petition for authorizing a preventive measure in the form of detention in the absence of a suspect or accused is allowed only in cases of declaring them wanted or being outside the Republic of Kazakhstan and evading appearance at the body conducting the criminal process, with proper notification of the time and place of the court session.
Together with the materials submitted to the court for the authorization of a preventive measure in the form of detention, the criminal prosecution body is obliged to issue a resolution on the declaration of a wanted person, providing evidence of his evasion from appearing before the criminal prosecution body (for example, data on the crossing of the suspect, the accused of the state border of the Republic of Kazakhstan, the absence for a long time due to place of residence, etc.).
The body conducting the criminal proceedings is obliged to properly and promptly notify the suspect, the accused, as well as his defense counsel about the time and place of the court session to consider the petition for the authorization of a preventive measure in the form of detention at his last known place of residence.
When an investigating judge considers a request for authorization of detention in the absence of a suspect or accused, the participation of a defense lawyer in a court hearing is mandatory.
The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).
The investigating judge, in his decision on the authorization of a preventive measure in the form of detention in absentia, must indicate that if the detainee is taken to an institution, the head of the place of detention must immediately notify the body or person in charge of the criminal case and the supervising prosecutor.
A person in respect of whom the preventive measure in the form of detention was authorized by the investigating judge in absentia, after his detention, is immediately brought to the investigating judge at the place of the pre-trial investigation to consider the validity of the use of detention.
The period of delivery of the suspect or accused to a special institution providing temporary isolation from society and to the investigating judge is included in the period of detention.
If the immediate delivery of the detained person to the investigating judge at the place of the pre-trial investigation is difficult or will take a long time, then consideration of the issue of verifying the validity of the use of detention authorized in absentia may be carried out by the investigating judge at the place of the person's detention.
Consideration of the issue of the validity of detention authorized by the investigating judge in absentia is carried out according to the rules of Article 148 of the CPC in a court session with the participation of the prosecutor, the suspect, the defense attorney within eight hours from the moment of receipt of the petition.
In accordance with the requirements of part five of Article 48 of the CPC, the period of detention is calculated from the moment of actual detention, and therefore the decision on authorizing a preventive measure in the form of detention should indicate: the beginning of the calculation of this period to the minute; the period for which this preventive measure is authorized; the end time of this period from down to the minute.
Along with the period of detention, the term of detention is counted:
forced stay in a psychiatric or other medical organization in an inpatient setting by a court decision in accordance with part six of Article 152 of the CPC;
detention of an extradited person in the Republic of Kazakhstan and his transfer in accordance with Article 584 of the CPC from the moment he crosses the state border of the Republic of Kazakhstan.
The time of detention and detention of a person extradited to the Republic of Kazakhstan in custody on the territory of a foreign state, as well as his transfer, is counted by the court in the total period of his detention when sentencing, based on the requirements of part two of Article 584 of the CPC.
The footnote. Paragraph 13, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/11/2020 No. 6 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
13-1. The period of detention of the defendant during the proceedings in court is calculated in accordance with the second part of Article 342 of the CPC from the date of receipt of the case in court. Regardless of the suspension of the proceedings, postponement of the trial, transfer of the case from one court to another court due to a change in jurisdiction, the total period of detention of the defendant during the proceedings in court is calculated from the date of the first receipt of the case in court until sentencing and may not exceed the time limits provided for in parts two and three of Article 342 of the CPC.
After the expiration of the periods of detention specified in parts two and three of Article 342 of the CPC, the court must change the defendant's measure of restraint to house arrest or another measure of restraint.
The footnote. The regulatory resolution was supplemented by paragraph 13-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
By virtue of parts one and three of Article 541 of the CPC, detention as a preventive measure against a minor suspect or accused may be applied only in exceptional cases, only if he is suspected of a serious or especially serious crime. The period of detention of a minor during pre-trial proceedings may not exceed six months.
When considering an application for the authorization of a preventive measure in the form of detention, the investigating judge is obliged to discuss the possibility of determining such a measure as placing a minor suspect or accused under supervision in accordance with the procedure provided for in article 144 of the CPC.
When considering an application for an extension of the period of detention, the investigating judge should take into account not only compliance with the time limits established by Article 151 of the CPC, but also establish specific circumstances indicating the need for further detention, to find out whether the circumstances that served as the basis for authorizing this preventive measure have disappeared or changed.
The investigating judge, extending the period of detention on the grounds of the need for additional investigative actions, is obliged to verify the validity of the arguments of the pre-trial investigation body on the continuation of investigative actions.
In the event that a request for an extension of the period of detention is initiated before the investigative court repeatedly and for reasons of the need to carry out investigative actions specified in previous petitions, the judge is obliged to clarify the reasons why they were not carried out.
In the event that a request for an extension of the period of detention is initiated before the investigative court repeatedly and for reasons of the need to carry out investigative actions specified in previous petitions, the judge is obliged to clarify the reasons why they were not carried out.
The decision of the investigating judge on the extension of the period of detention must specify the period for which this measure of restraint has been extended, as well as the end time of this period, to the minute.
The expiration of the period of detention of a suspect is not in itself a reason for its extension. The pre-trial investigation body is obliged to provide the court with evidence confirming the grounds for extending the period of detention.
The footnote. Paragraph 15 as amended by Resolutions of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication); dated 22.12.2022 No. 10 (effective from the date of the first official publication).
In accordance with part seven of Article 152 of the CPC, the period of a suspect's detention during familiarization with the materials of a criminal case is determined by the investigating judge, taking into account the volume of the criminal case, the number of persons involved in the case and other circumstances affecting the time of familiarization with the case.
The detention of a suspect during the period of familiarization of him and the defender with the materials of the criminal case is authorized and extended by the investigating judge in accordance with the procedure provided for in articles 148, 151 of the CPC.
The decision of the investigating judge to extend the period of detention of a suspect or accused in custody must be based on factual data confirming the need to maintain this preventive measure. It is unacceptable to point to the continued familiarization of the accused and his defense counsel with the case materials as the only reason for extending the period of detention.
If the investigating judge finds that the investigator did not organize the process of familiarizing the suspect, the accused and the defense counsel with the materials of the criminal case within a reasonable time, he has the right to refuse to extend the period of detention.
House arrest is applied in accordance with the procedure provided for in Article 147 of the CPC in order to ensure proper behavior of the suspect or accused, prevent obstruction of an objective investigation and trial in court, evade appearance before the body conducting the criminal process and the court, and prevent criminal activity.
When choosing this measure of restraint by the body conducting the criminal process, it is checked whether conditions allow for house arrest, when complete isolation of a person is not necessary or impractical, taking into account age, health status, marital status, the presence of young children and other circumstances.
In the decision authorizing house arrest, the investigating judge must indicate the location of the home in which the suspect or accused should stay, the specific restrictions provided for in the second part of Article 146 of the CPC applied to the suspect or accused, as well as the body or official supervising.
In accordance with paragraph 28) of Article 2 of the Law of the Republic of Kazakhstan dated April 16, 1997 No. 94 "On Housing Relations", housing is understood to be a separate residential unit (individual house, apartment, dormitory room) intended and used for permanent residence, meeting the established construction, sanitary, environmental, fire and other mandatory requirements. rules and regulations.
When authorizing house arrest, courts should take into account that restrictions on the freedom of movement of the suspect, the accused and the prohibitions provided for in the second part of Article 146 of the CPC should be applied within reasonable limits.
Restrictions should not prevent a person from contacting family members, communicating with their lawyer, or performing vital actions, such as receiving medical care, etc.
House arrest may be applied at the place of actual residence of the suspect, accused in another region of Kazakhstan, which is not the place where the crime was committed or the pre-trial investigation was conducted.
The term of house arrest is calculated from the moment the court issues a decision on authorization.
In case of detention of a person in accordance with Article 128 of the CPC, this period is counted as the period of house arrest.
Bail in accordance with the second part of Article 145 of the CPC is applied only with the approval of the investigating judge or by court order.
Bail may be applied by a decision of a judge of a regional or equivalent court based on the results of consideration of a complaint in accordance with Article 107 of the CPC, as well as by a court decision on a criminal case under way in accordance with the first part of Article 342 of the CPC.
In the absence of grounds for satisfying the petition of the person conducting the pre-trial investigation to authorize a preventive measure in the form of detention, the investigating judge has the right to choose a preventive measure in the form of bail, the subject of which may be monetary funds, valuables, movable and immovable property.
When granting a request for the authorization of a preventive measure in the form of detention, the court is simultaneously obliged to determine the amount of bail in the decision, with the exception of the cases specified in part nine of Article 148 of the CPC.
The person conducting the pre-trial investigation shall immediately notify the head of the place of detention on the basis of the decision of the investigating judge issued in accordance with part eight of Article 148 of the CPC. Upon receiving the bail document, the head of the place of detention is obliged to immediately take measures to release the suspect or accused from custody, which must be notified by the person conducting the pre-trial investigation, the investigating judge and the supervising prosecutor in accordance with part eight of Article 145 of the CPC.
The conclusions that the suspect (accused) will obstruct the proceedings or hide from the investigation and the court, or continue his criminal activities, must be supported by sufficient evidence and properly motivated both in the petition of the person conducting the pre-trial investigation and in the decision of the investigating judge to authorize a preventive measure in the form of detention on the grounds provided for by paragraph 3) or 4) of the ninth part of Article 148 of the CPC.
The footnote. Paragraph 21 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).
The amount of the pledge is determined by the court taking into account the severity of the suspicion, the identity of the suspect, the accused, the nature of the criminal act, the property status of the pledgor and may not be less than the limits established by part three of Article 145 of the CPC.
Other property may be provided as collateral with the consent of the pledgor, the value of which exceeds the maximum amount of collateral for the relevant category of crime.
In the case of sanctioning a preventive measure in the form of bail in accordance with the second part of Article 145 of the CPC, as well as when changing the previously chosen preventive measure to bail, the investigating judge is obliged to establish the amount and time limit for its payment provided for in the fourth part of Article 145 of the CPC.
If the bail has not been paid within the time limit set by the resolution or has been paid, but in a smaller amount than determined by the investigating judge, then in accordance with part four of Article 145 of the CPC, at the request of the person conducting the pre-trial investigation, the investigating judge considers changing the bail to another measure of restraint.
If the suspect or the accused has not violated the duties assigned to him or has violated them for a valid reason, but a stricter measure of restraint has been applied against him, a verdict has been passed or a decision has been issued to terminate criminal proceedings, then the subject of the pledge is immediately returned to the pledgor.
The decision on the return of the deposited bail when applying a stricter measure of restraint is taken by the body conducting the criminal process, with the consent of the prosecutor.
When passing sentence, if the pledgors are the suspect or the accused, the court, considering the fate of the pledge in the presence of a civil claim, procedural costs and other property penalties, may, at the request of the prosecutor, decide to foreclose on the subject of the pledge or part of it.
If the suspect or accused fails to fulfill the obligations secured by the bail without valid reasons, the prosecutor sends the investigating judge a petition for the bail to be transferred to the state's income, in which evidence of this fact must be provided.
The investigating judge shall consider the prosecutor's request in accordance with the procedure provided for in article 56 of the CPC.
When such obligations are not fulfilled by the defendant, the issue of applying bail to the State's income is resolved by the court at sentencing.
The obligations related to the bail should be considered violated if the suspect or the accused, without valid reasons, evaded appearing at the summons of the investigator, inquirer or court, or in any other way obstructed the proceedings on a criminal case or committed a new criminal offense.
When considering the issue of violation of obligations related to bail, the investigating judge must check the reasons for the evasion of the suspect, the accused, the defendant from appearing before the pre-trial investigation body and the court.
According to article 4 of the Constitution, this normative resolution is included in the current law, is generally binding and comes into force from the day of the first official publication.
Chairman of the Supreme Court
Republic of Kazakhstan
J. Asanov
Judge of the Supreme Court of the Republic of Kazakhstan,
Secretary of the plenary session
G. Almagambetova
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases
