On the authorization of secret investigative actions

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 11, 2020 No. 5

     For the purpose of uniform application of the norms of the law governing the court's authorization of secret investigative actions, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications:

An unspoken investigative action is an action carried out during pre-trial proceedings to clarify the circumstances to be proved in a criminal case, without first informing the persons whose interests it concerns.

      The authorization of secret investigative actions is carried out in accordance with the procedure and cases provided for by the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC).

     The procedure for conducting secret investigative actions is determined by the Rules approved by law enforcement and special state bodies in coordination with the Prosecutor General of the Republic of Kazakhstan (hereinafter referred to as the Prosecutor General).

Secret investigative actions are carried out in a criminal case under the jurisdiction of a pre-trial investigation body, subject to the conditions and grounds for conducting them in order to clarify the circumstances to be proven in the case, while strictly observing the law and ensuring human and civil rights and freedoms provided for by the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution).

     Secret investigative actions are usually carried out in cases where information about the circumstances of a case cannot be obtained through other investigative actions.

The courts need to distinguish secret investigative actions carried out in the framework of a criminal case from operational investigative measures (hereinafter referred to as the OPM) carried out in accordance with the Law of the Republic of Kazakhstan dated September 15, 1994 No. 154-XIII "On Operational Investigative activities" (hereinafter referred to as the Law on the OPD).

      Special operational search measures similar to covert investigative actions (hereinafter referred to as SORM) provided for in sub-paragraphs 1), 2), 3), 4), 5), 6) paragraph 3 of Article 11 of the Law on the Order is carried out with the approval of the prosecutor for the purposes provided for in paragraphs 1) and 2) of paragraph 4 of Article 12 of this The law.

According to paragraph 1 of Article 14 of the Law on Criminal Investigations, materials obtained in the course of operational investigative activities can be used for the preparation and implementation of investigative actions and conducting criminal investigations to prevent and suppress criminal offenses, as well as in the process of proving criminal cases, provided they are verified in accordance with the provisions of the criminal procedure legislation of the Republic of Kazakhstan, regulating the collection, investigation and evaluation of evidence.

      The courts should keep in mind that, in accordance with the second part of Article 120 of the CPC, materials obtained in compliance with the requirements of the Law on the Criminal Police and the Law of the Republic of Kazakhstan dated December 28, 2016 No. 35-VI "On Counterintelligence Activities", which contain factual information about illegal actions, are documents and can be used in criminal proceedings. as evidence.

Secret investigative actions are carried out based on statements, reports or reports of criminal offenses registered in the Unified Register of Pre-Trial Investigations, if there is one of the grounds provided for in part four of Article 232 of the CPC, as part of pre-trial proceedings.

     It is unacceptable to conduct secret investigative actions before the start of pre-trial proceedings. In these cases, the tasks of the criminal process can be ensured by carrying out operational search measures provided for by the Law on the ORDO.

     Secret investigative actions are carried out on the initiative of the pre-trial investigation body (prosecutor, investigator or inquirer) directly conducting criminal proceedings. Other government agencies and officials do not have this right.

      In accordance with the first part of Article 241 of the CPC, information about the conduct of a secret investigative action and information obtained as a result of its conduct are confidential and are not subject to disclosure until the end of the secret investigative action.

The authorization of secret investigative actions provided for in paragraphs 1) to 6) of Article 231 of the CPC is carried out by an investigating judge of a specialized investigative court, a specialized interdistrict investigative court at the location of the body conducting the pre-trial investigation and (or) at the location of an authorized subdivision of a law enforcement or special state body executing the instructions of the person conducting the pre-trial investigation, or the place of the pre-trial investigation.

     Investigative judges of a district or equivalent court, which is not a specialized investigative court or a specialized interdistrict investigative court, are not entitled to consider materials on authorizing secret investigative actions.

     The authorization of the extension of the clandestine investigative action is carried out by the investigating judge who authorized the clandestine investigative action.

     In exceptional cases, if it is impossible for the same investigating judge to authorize the extension of a covert investigative action, the authorization is carried out by another investigating judge of the same court.

     The legality of a secret investigative action carried out in urgent cases is checked by an investigating judge of a specialized investigative court (specialized interdistrict investigative court) at the location of the body conducting the pre-trial investigation and (or) at the location of an authorized subdivision of a law enforcement or special state body executing the instructions of the person conducting the pre-trial investigation or at the place of the pre-trial investigation.

     The authorization of secret investigative actions against a judge is carried out by the investigating judge of the specialized interdistrict investigative court of the city of Nur-Sultan upon the decision of the pre-trial investigation body, agreed with the Prosecutor General, and in respect of the Prosecutor General by the investigating judge of the specialized interdistrict investigative court of the city of Nur-Sultan upon the decision of the pre-trial investigation body, agreed with the First Deputy Prosecutor General.

Courts should comply with the requirements of paragraphs 1) to 4) of the seventh part of Article 232 of the CPC, which define an exhaustive list of persons against whom secret investigative actions can be carried out.

     It is not allowed to carry out secret investigative actions against persons not listed in this list, as well as against the victim, if there is no written consent.

      The third party referred to in paragraph 4) of part seven of Article 232 of the CPC means any natural person (for example, relatives, friends, acquaintances of the suspect) who receives or transmits information relevant to the case, with the exception of the victim and the lawyer referred to in part eight of Article 232 of the CPC.

     In relation to a third party, a secret investigative action may be authorized only on condition that the pre-trial investigation body has information that the third party receives or transmits information relevant to the case.

      As applied to paragraph 5) of the seventh part of Article 232 of the CPC, a place should be understood as material objects where circumstances relevant to the case exist or are expected to arise (for example, an office or other room, a vehicle where bribes can be given and received; a dwelling where a meeting of accomplices of a criminal offense can take place, preparing, committing, or having committed it).

     It is prohibited to carry out secret investigative actions against lawyers who provide professional assistance, except in cases where there are grounds to believe that they are preparing or have committed a serious or especially serious crime.

If, during secret investigative actions against one person, factual information about the illegal actions of another person is revealed, then this data can be used as evidence of charges against this person only if the requirements of article 235 of the CPC are met. The authorized official of the body charged with conducting a secret investigative action, and in the case of secret control of postal and other items, the investigator, the inquirer sends the investigating judge a notification and a resolution on conducting a secret investigative action in urgent cases with respect to another person and requests the appropriate authorization of the investigating judge to conduct a secret investigative action. In this case, a decision of the investigating judge must be obtained on the recognition or non-recognition of the conducted secret investigative action as lawful.

The decision to conduct a secret investigative action must comply with the requirements specified in Articles 198, 232 and 233 of the CPC, and contain a brief description of the plot of the criminal case, justification for the need for a secret investigative action, information about the place or person against whom it is planned to conduct a secret investigative action, as well as other data listed in part one of the article. 233 CPC.

   The conclusions of the authorized official of the body charged with conducting a secret investigative action, and in the case of secret control of postal and other items, the investigator or inquirer on the need for a secret investigative action, indicated in the resolution, must be motivated and confirmed by the materials of the criminal case.

      In order to verify the arguments specified in the ruling, the investigating judge has the right to request materials that confirm the circumstances set out in the ruling, including the actual data of the facility in respect of which a secret investigative action is planned or is being conducted, encrypted in accordance with part two of Article 233 of the CPC.

     Failure to provide the requested materials to the investigating judge is grounds for refusing to authorize a secret investigative action.

Factual data obtained as a result of covert investigative actions are subject to consolidation, research, evaluation and recognition as evidence in accordance with the procedure provided for in Chapters 15 and 16 of the CPC.

      In accordance with the second part of Article 239 of the CPC, factual data contained in the protocols of the study of the results of secret investigative actions, sound recordings and recordings of images, photographs, other results recorded by scientific and technical means, seized objects and documents or copies thereof may be recognized as evidence.

If, as a result of secret investigative actions, circumstances are established that require verification by conducting a forensic examination (for example, in cases of illicit drug trafficking), then the appointment of an examination is carried out by the investigator or, on his behalf, by the body of inquiry in accordance with article 60 of the CPC. An expert opinion obtained by resolution of the body of inquiry in the absence of a corresponding instruction from the investigator cannot be recognized as admissible evidence.

Secret investigative actions, with the exception of secret control of postal and other items, are carried out on behalf of the pre-trial investigation body (hereinafter referred to as the order), an authorized unit of a law enforcement or special body using forms and methods of operational investigative activities in accordance with the Rules for conducting secret investigative actions.

     The order must contain a justification for the need to conduct a secret investigative action against a specific person or place and be supported by the case materials.

      One instruction may indicate the need to carry out several secret investigative actions against different persons, the list of which is indicated in part seven of Article 232 of the CPC.

      Resolution on the conduct of secret investigative actions provided for in paragraphs 1), 2), 3), 4), 6) Article 231 of the CPC is issued by the executor, who is charged with conducting a secret investigative action. Decisions on conducting secret control of postal and other items and on extending the period for conducting secret investigative actions are made directly by the investigator himself or the inquirer conducting the pre-trial investigation.

The justification for the need for a secret investigative action, its type, location (when conducting a secret investigative action at the place), subscriber phone numbers, e-mail address, and the time period for which information should be obtained should be set out in the instruction of the person conducting the pre-trial investigation.

     The order must contain information confirming that the monitored subscriber numbers belong to the person against whom the secret investigative action is being carried out.

     The executor of the secret investigative action may not carry out any other secret investigative action not specified in the instruction.

     It is not allowed for the contractor to include additional subscriber numbers, email addresses, social network accounts, and other information not specified in the order in the resolution on conducting a secret investigative action.

     If the contractor went beyond the scope of the assignment given to him during the secret investigative action, then the information obtained as a result of their conduct cannot be recognized as admissible evidence in the case.

Secret investigative actions may be carried out only after the pre-trial investigation body has established the signs of a crime, as well as the conditions and grounds for conducting secret investigative actions provided for in article 232 of the CPC.

     Before initiating a secret investigative action, the pre-trial investigation body must have information about the person's involvement in the crime under investigation (the statement or report on the criminal offense indicates the person preparing, committing or committing it, or there is reason to believe that this person is related to the offense under investigation or has information about the criminal offense being prepared, committed or committed violation) or have information that a third party receives or transmits information relevant to the case.

     The materials of operational search measures obtained before the start of the pre-trial investigation can be used as such information.

The authorization of a secret investigative action is carried out by the investigating judge within twelve hours from the moment the relevant decision is received by the court.

     If it is necessary to request additional materials, it is allowed to consider the resolution beyond the prescribed period, but not more than twenty-four hours.

     The investigating judge considers the decision to conduct secret investigative actions alone without holding a court session and informing the participants in the criminal process.

The investigating judge, having recognized the decision to conduct a secret investigative action as lawful and justified, authorizes it by affixing the word "I authorize" on it, his signature, the seal of the court and the date.

     If the decision is unjustified or there are insufficient materials confirming the necessity and validity of conducting a secret investigative action, the investigating judge refuses to authorize it, and issues a reasoned decision.

      When establishing violations of the law by the pre-trial investigation body during the preparation of materials for conducting a secret investigative action (for example, the absence of instructions from the person conducting the pre-trial investigation, the issuance of a decision to conduct a secret investigative action by an improper person, an indication in the decision to conduct a secret investigative action not provided for in the order, violation of the procedural time limit provided for in the second part of Article 234 of the CPC for the provision of a decision on conducting a secret investigative action), the investigating judge, if he refuses to authorize, has the right to issue a private decision to take appropriate response measures.

      The prosecutor submits a motion for review of the decision of the investigating judge to authorize or refuse to authorize secret investigative actions and its consideration by a judge of a regional or equivalent court is carried out in accordance with the procedure provided for in Article 107 of the CPC.

If there are doubts about the reliability of the information provided to authorize a secret investigative action, the investigating judge has the right, in accordance with the second part of Article 234 of the CPC, to authorize the decision, within twenty-four hours, to entrust its verification to the procedural prosecutor.

     Such an inspection is also initiated in criminal cases for which a procedural prosecutor has not been appointed. In this case, a written notification of the investigating judge is sent to the head of the prosecutor's office, which carries out prosecutorial supervision of the case.

     The investigating judge may initiate verification of the accuracy of any information received as part of the pre-trial proceedings, including the accuracy of the subscriber number, email address, social media data, etc., specified in the decision to conduct a secret investigative action.

      The prosecutor is obliged to conduct an appropriate check within five days and notify the investigating judge of the results. If the audit establishes the illegality of the decision to conduct a secret investigative action, the prosecutor is obliged to submit to the investigating judge a corresponding motion for its termination, which is subject to consideration by the investigating judge within the time limits provided for in the second part of Article 234 of the CPC.

In urgent cases, it is allowed to carry out secret investigative actions provided for in paragraphs 1) to 6) of Article 231 of the CPC, with written notification to the investigating judge within twenty-four hours and subsequent receipt of a sanction in accordance with the procedure provided for in Article 235 of the CPC.

     Conducting secret investigative actions in urgent cases should be of an exceptional nature when it is not possible to obtain the approval of the investigating judge before the start of their proceedings.

The subject of judicial research when considering a notification of a secret investigative action, in addition to the validity of its production in relation to a specific person or place, is the mandatory verification of the existence of objective obstacles to obtaining a sanction before the start of a secret investigative action.

      Such circumstances may include, for example, the need to conduct a secret investigative action on a weekend or holiday, late (at night), the remoteness of the area where the secret investigative action is being carried out, the sudden appearance of third parties in respect of whom it is allowed in accordance with the Code of Criminal Procedure to conduct a secret investigative action, etc.

In accordance with the second part of Article 235 of the CPC, the investigating judge, having studied the submitted materials, in case of agreement with the urgency of the covert investigative action carried out, issues a decision recognizing as lawful the covert investigative action that does not tolerate delay, which reflects the necessity and validity of its conduct in relation to a specific person or place and indicates the date of consideration of the decision and notification.. In case of disagreement, it issues a resolution on its termination and the inadmissibility of using the results of secret investigative actions as acceptable evidence.

      The calculation of the time limit for conducting a secret investigative action, which does not tolerate delay, begins from the date of its actual conduct within the time limits established by Article 236 of the CPC.

      If an authorized official of the body charged with conducting secret investigative actions receives a reasoned decision on the need for further secret investigative actions against a person or place, the investigating judge has the right to authorize it in accordance with article 234 of the CPC.

An unspoken investigative action is carried out during the period for which it is authorized by the investigating judge, but not more than 30 days.

      The extension of the time limit for conducting a secret investigative action is authorized by the investigating judge in accordance with the procedure provided for in the second part of Article 236 of the CPC.

      In accordance with part 7-1 of Article 45 of the CPC, the interruption of the pre-trial investigation period does not prevent the necessary investigative measures in accordance with the Law on the Criminal Police and secret investigative actions, and the publication of their results in the materials of the criminal case.

      In accordance with paragraph 56) of Article 7 of the CPC, investigative measures permitted during the interruption of the pre-trial investigation period are understood to mean actions of the body of inquiry carried out on behalf of the body conducting the criminal process aimed at establishing the location of persons who have absconded from the body conducting the criminal process and (or) evading criminal liability. missing persons, objects and documents relevant to the case, as well as the identification of persons who have committed a criminal offense.

      In a criminal case in which the terms of the pre-trial investigation were interrupted or the case was suspended by the pre-trial investigation body on the basis of Article 50 of the CPC (as amended in 1997), the authorization of secret investigative actions by the investigating judge is carried out only after the resumption of the terms of the pre-trial investigation in accordance with part nine of Article 45 of the CPC or after the resumption in accordance with part 8-1 Article 673 of the CPC of the criminal case suspended until January 1, 2015.

When resolving the issue of authorizing the continuation of a covert investigative action, it is necessary to check the validity of its extension, find out for what purposes it is necessary and whether the conclusions of the pre-trial investigation body about the need to conduct a covert investigative action against a particular person or place have been confirmed.

     The lack of justification for continuing a covert investigative action is grounds for refusing to authorize it.

     Secret investigative actions may be carried out during the pre-trial investigation, until notification of the end of investigative actions in the case.

Secret investigative actions provided for in paragraphs 1) to 6) of Article 231 of the CPC may be terminated by the investigating judge at the request of the prosecutor.

     The petition must be accompanied by evidence confirming the validity of the prosecutor's arguments about the need to terminate the covert investigative action. Ensuring the accuracy of the information provided is the responsibility of the prosecutor who filed the petition.

      If the prosecutor's request to terminate a secret investigative action is groundless, it may be refused, and the investigating judge issues a reasoned decision, which may be reviewed by a higher court at the prosecutor's request in accordance with the rules of article 107 of the CPC.

The person against whom a secret investigative action was carried out must be notified by the pre-trial investigation body without familiarizing himself with the results of the secret investigative action no later than six months after the final decision on the criminal case was made, except in cases provided for in article 240 of the CPC.

     This period may be extended by the investigating judge at the reasoned request of the pre-trial investigation body for up to one year.

      The written notification must contain information about the type of secret investigative action carried out and the time of its conduct, as well as an explanation of the rights provided for in parts two, four and six of Article 240 of the CPC.

     The final decision at the pre-trial stage of the criminal case is only the decision to terminate the pre-trial proceedings.

     When the court passes a verdict, the six-month notice period is calculated from the moment it enters into legal force.

      In cases where a person is notified of the fact of conducting secret investigative actions during pre-trial proceedings upon familiarization with the materials of the criminal case in accordance with articles 295 and 296 of the CPC, or notified in accordance with the procedure provided for in part two of Article 239 of the CPC, this person is considered notified of the secret investigative actions and repeated notification is not required.

In cases stipulated by part 1-1 of Article 240 of the CPC, the pre-trial investigation body shall petition the investigating judge for failure to inform the person about the secret investigative action carried out against him.

     The investigating judge, at the reasoned request of the pre-trial investigation body, may agree not to inform the person about the secret investigative action carried out against him.:

     in a criminal case of a terrorist or extremist crime;

     in the criminal case of a crime committed by a criminal group;

     if the notification poses a threat of disclosure of state secrets;

     if the notification poses a threat to the security of persons engaged in confidential and conspiratorial activities, and other persons.

     This list is exhaustive and is not subject to extensive interpretation.

A person against whom secret investigative actions were carried out has the right, within fifteen days from the date of receipt of the notification, to apply to the court that authorized the secret investigative action in accordance with the procedure provided for in Article 106 of the CPC, with a statement declaring the conduct of the relevant secret investigative actions illegal and compensation for the damage caused (if any).

      When considering a complaint in accordance with article 106 of the CPC, the investigating judge must verify the legality of the actions of the pre-trial investigation body in executing the decision to conduct a secret investigative action, without discussing the legality of authorizing this decision. The decision of the investigating judge may be appealed or reviewed at the request of the prosecutor in accordance with the procedure provided for in article 107 of the CPC.

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 of the 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  

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