When considering the issue of authorizing a preventive measure, the investigating judge must take into account the provisions of the law.
The reason for considering the issue of authorizing a preventive measure in the form of detention or house arrest is the decision of the person conducting the pre-trial investigation to file a motion before the court to authorize the application of this measure. This decision is submitted to the prosecutor eighteen hours before the end of the detention period. In the case of maintaining the petition for the authorization of a preventive measure in the form of detention, the prosecutor agrees with the decision of the body of criminal prosecution. In case of refusal, the prosecutor issues a reasoned decision. However, the prosecutor has the right to send a request to the investigating judge to authorize another preventive measure. For example, the prosecutor does not agree with the investigator's request to apply a preventive measure in the form of detention, but he believes that a preventive measure in the form of house arrest can be applied. In this case, the prosecutor draws up a reasoned motion to authorize a preventive measure in the form of house arrest and sends it with all the necessary case materials to the investigating judge for consideration.
When considering the issue of authorizing a preventive measure, the investigating judge must take into account the provisions of the law.
The said decision of the prosecutor, as well as the decision on his support of the petition of the person conducting the pre-trial investigation to authorize detention, as well as materials confirming its validity, must be provided by the prosecutor to the investigating judge no later than twelve hours before the expiration of the period of detention, about which the prosecutor shall notify the persons concerned. The resolution must be accompanied by certified copies of the criminal case confirming the validity of the petition. 2) Consideration of a petition for the authorization of a preventive measure by an investigating judge of a district and equivalent court in compliance with the procedure established by articles 56 and 148 of the draft CPC, and territorial jurisdiction, which is determined by the location of the body that initiated the petition. 3) Consideration of a petition for the authorization of a preventive measure is considered by the investigating judge alone with the mandatory holding of a court session. By order of the investigating judge, the court session may be held via video link. Article 148 of the draft CPC does not specify the restriction of the publicity of the trial when the investigating judge considers these petitions. This is not mentioned in article 56 of the draft CPC, which is referred to in article 148. In this regard, the restriction of publicity, i.e. holding a closed court session when considering a petition for the authorization of a preventive measure is allowed only in cases provided for in article 29 of the draft CPC. 4) The investigating judge shall consider the application within eight hours from the date of receipt. Consideration of a petition for the authorization of a preventive measure in the form of detention is carried out with the participation of the prosecutor, the suspect, the accused, and his defense counsel. In case of arrest, the suspect or the accused is brought before the investigating judge to consider the validity of the chosen preventive measure. 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 him 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. A legal representative and a representative may also participate in the court session. The non-appearance of the said participants in the process in the event of their timely notification by the court of the place and time of the court session does not prevent the court session from taking place. A protocol is kept during the court session.
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