Commentary on Article 135. Notification of the Suspect’s Relatives of the Detention under the Criminal Procedure Code of the Republic of Kazakhstan
The person conducting the pre-trial investigation shall immediately notify one of the adult members of the suspect’s family of the suspect’s detention and whereabouts or, in the absence of such family members, other relatives or close persons, or provide the suspect with an opportunity to make such notification personally. In the case of the detention of a foreign national, the embassy, consulate or other representative office of that state shall also be notified immediately, or, if this is not possible, within twenty-four hours, through the Ministry of Foreign Affairs of the Republic of Kazakhstan, in accordance with the procedure established by a joint order of the Minister of Foreign Affairs of the Republic of Kazakhstan and the Prosecutor General of the Republic of Kazakhstan.
An integral part of the legality and justification of the detention and custody of a suspect is the mandatory written notification (in addition to oral notification) of relatives and other persons about the detention that has taken place. The provisions of Article 135 of the Criminal Procedure Code establish the circle of persons and institutions that, as a rule, must be notified of a person's detention in a certain sequence. This must be done immediately, that is, within the first twenty-four hours after detention, but no later than seventy-two hours from the moment of the suspect's actual detention. If there are no grounds for maintaining the confidentiality of the initial stage of the investigation, such notification of relatives may be carried out by the suspect personally, with the permission of the inquiry officer or investigator, using means of communication provided to the suspect by the inquiry officer or investigator. In all cases, the parents or other legal representatives of a detained minor suspect shall be notified immediately, and in their absence, close relatives and (or) guardianship and trusteeship authorities shall be notified (Part 5 of Article 541 of the Criminal Procedure Code).
In accordance with the Rules on Notification of Diplomatic Missions or Consular Offices of Foreign States Regarding the Detention and Custody of Foreign Nationals (Joint Order No. 87 of the Prosecutor General of the Republic of Kazakhstan dated September 3, 2014, and Order No. 08-1-1-1/428 of the Acting Minister of Foreign Affairs of the Republic of Kazakhstan dated September 26, 2014): “Diplomatic missions or consular offices of foreign states accredited in the Republic of Kazakhstan, including those accredited on a non-resident basis, shall be notified of all cases of detention and custody of their citizens or citizens of the states they represent (paragraph 1). The notification shall be prepared by persons conducting pre-trial investigations within the prosecutor's offices, internal affairs bodies, national security bodies, state revenue bodies, the Border Service and other bodies vested with the authority to detain persons. Notifications shall be sent to the Ministry of Foreign Affairs of the Republic of Kazakhstan, unless otherwise provided for by international treaties ratified by the Republic of Kazakhstan. Notifications shall also be sent to the National Security Committee of the Republic of Kazakhstan and the Ministry of Internal Affairs of the Republic of Kazakhstan, as well as to the supervising prosecutor (paragraph 2). The person conducting the pre-trial investigation who has detained a foreign national or who has petitioned for the application of a preventive measure in the form of detention in custody against such person shall notify the relevant authorities thereof within a period not exceeding 6 (six) hours from the moment of detention and the court's authorization of the preventive measure in the form of detention in custody.
In cases where the foreign national has no identity documents, or submits documents giving grounds to believe that they are unreliable and are subject to verification, the above-mentioned notifications shall be sent within a period not exceeding 18 (eighteen) hours from the moment of detention (paragraph 3). The notification shall be prepared using the form set out in the Appendix to the Rules and shall be sent through the interdepartmental electronic document management system, by fax or telephone message (paragraph 4). Whether a detained person held in custody is a citizen of a foreign state shall be determined on the basis of an identity document or a document replacing it. In the absence of identity documents, or where documents giving grounds to believe that they are unreliable have been submitted, the citizenship of such person shall be verified through the information systems of the internal affairs bodies and the Border Service at the place of detention or custody (paragraph 5). The Ministry of Foreign Affairs of the Republic of Kazakhstan shall forward the notification to the relevant diplomatic mission or consular office no later than 24 (twenty-four) hours from the moment of actual detention and placement in custody. The notification shall be forwarded to the diplomatic mission or consular office by means of official correspondence, electronic mail, fax or telephone message (paragraph 6). The Ministry of Foreign Affairs of the Republic of Kazakhstan shall annually, no later than January 30 (thirtieth), provide the Prosecutor General's Office of the Republic of Kazakhstan, the National Security Committee of the Republic of Kazakhstan, the Agency of the Republic of Kazakhstan for Civil Service Affairs and Anti-Corruption, the State Security Service of the Republic of Kazakhstan, and the Ministries of Finance and Internal Affairs of the Republic of Kazakhstan with information concerning: states that, together with the Republic of Kazakhstan, are parties to international treaties on consular matters; states that, together with the Republic of Kazakhstan, are parties to international treaties containing obligations to notify about the detention and custody of citizens of the participating states (paragraph 7). In the event that an international treaty specified in paragraph 7 of the Rules ceases to have effect with respect to the Republic of Kazakhstan or another foreign state that is a party to the same international treaty together with the Republic of Kazakhstan, the Ministry of Foreign Affairs of the Republic of Kazakhstan shall notify the state bodies listed in paragraph 7 of the Rules no later than 5 (five) working days from the date of termination of the relevant international treaty (paragraph 8).”
Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishovich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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