Commentary on Article 136. Grounds for the Application of Preventive Measures of the Criminal Procedure Code of the Republic of Kazakhstan

- 1. If there are sufficient grounds to believe that the accused will abscond from the criminal prosecution authorities or the court, or will obstruct the objective investigation of the case or its examination in court, or will continue to engage in criminal activity, as well as for the purpose of ensuring the execution of the judgment, the body conducting the criminal proceedings shall be entitled, within the limits of its powers, to apply to such persons one of the preventive measures provided for by Article 137 of this Code.

- 1-1. When selecting a preventive measure in respect of a suspect or accused, the possibility of applying a less restrictive preventive measure shall be considered, if such a possibility exists.

- 2. In respect of persons suspected or accused of committing the crimes provided for in Article 99 (paragraph 15) of part two, part four of Article 170, Articles 175, 177, 178, 184, part four of Article 255, part five of Article 263, part four of Article 286, part four of Article 297, part four of Article 298, and part four of Article 299 of the Criminal Code of the Republic of Kazakhstan, detention in custody as a preventive measure may be applied solely on the grounds of the gravity of the crime committed.

- 3. In respect of persons suspected or accused of committing crimes in the sphere of economic activity, except for criminal offences provided for in Articles 217, 218, 231, 234, 248 and 249 of the Criminal Code of the Republic of Kazakhstan, the preventive measure in the form of detention in custody shall not be applied, except in the cases provided for in paragraphs 4) and 5) of part one of Article 147 of this Code.

- Note. Article 136 was amended by the Laws of the Republic of Kazakhstan dated December 21, 2017, No. 118-VI (shall enter into force upon the expiration of ten calendar days after the day of its first official publication); and dated July 12, 2018, No. 180-VI (shall enter into force upon the expiration of ten calendar days after the day of its first official publication).

Among the procedural coercive measures regulated by Section 4 of the CPC, preventive measures occupy a significant place. They are procedural instruments designed to ensure the normal and uninterrupted course of proceedings in a case by preventing possible unlawful conduct on the part of a suspect or accused during the investigation and judicial examination of a criminal case. Preventive measures are applied in practically every criminal case (with the exceptions specified in part 3 of Article 136 of the CPC), while the selection of their type depends, under all circumstances, primarily on the public danger posed by the crime and the personality of the person who committed it, and is always based on the information contained in the materials of the criminal case.

It is important to bear in mind that preventive measures are generally applied to a suspect or accused, in other words, to persons who have been recognized as such in criminal cases in accordance with the law (Articles 64–65, part 1 of Article 139 of the CPC), and whose position regarding their guilt in committing the crime has also been established (part 2 of Article 140 of the CPC). This, incidentally, is a very fundamental provision which, alongside other information, makes it possible to strengthen the legality and validity of the application of any preventive measure.

For the purpose of ensuring the legality and validity of the application of preventive measures, the law provides for four general grounds, in the presence of information concerning which in the materials of a criminal case, such measures may be selected (parts 1 and 1-1 of Article 136 of the CPC). In other words, the grounds for applying preventive measures must be based on evidence contained in the criminal case, and if such evidence is absent, there are no grounds for selecting them either. However, this must be considered taking into account, I emphasize, the public danger posed by the crime, the personality of the person who committed it, and other circumstances specified in Article 138 of the CPC.

The application of a preventive measure without sufficient grounds may be regarded by the defence, the prosecutor and the court as a means of exerting psychological pressure on the suspect or accused and as a means of securing evidence. What meaning does the law attach to each of the grounds for applying preventive measures?

Thus, various circumstances may indicate that the accused intends to abscond from the investigation and the court: reliable operational-investigative information and the results of covert investigative actions; the suspect's or accused's hurried sale of movable and immovable property at a low price; sending family members to relatives; withdrawing money from bank accounts or transferring deposits to other accounts in other countries; resigning from employment; purchasing tickets for flights or travel; preparing a vehicle, and so on. In all cases, operational-investigative information must be verified through procedural means by conducting the necessary investigative, covert investigative and other procedural actions.

Obstruction of the course of the investigation and the examination of a case in court is, generally speaking, a quite natural condition for perpetrators of crimes in all group cases, especially those involving organized crime, grave and especially grave general criminal offences (robbery, armed robbery, extortion, etc.), corruption-related and economic crimes.

This must be anticipated, and preparations must be made so that, in such cases, simultaneously with the commencement of the pre-trial investigation of the criminal case, taking into account the entire set of circumstances provided for in Articles 136 and 138 of the CPC, the most optimal, lawful and well-founded decision can be made regarding the type of preventive measure to be applied to the most active members of criminal formations with deeply ingrained criminal tendencies.

The provisions of Article 136 of the CPC identify the possible continuation of criminal activity by a suspect or accused as an independent ground for applying preventive measures. It is not necessarily required that the person commit the same crimes in connection with which they were recognized as a suspect or accused. The criminal activity of a suspect or accused may even be directed against participants in the proceedings.

The ultimate purpose of practically all criminal cases is to ensure the execution of the judgment, especially where a conviction has been delivered. For example, among the issues resolved by the court when delivering a judgment, the issue of the preventive measure in respect of the defendant is necessarily examined (paragraph 17 of part 1 of Article 390 of the CPC).

This issue is also addressed in the operative part of a conviction (resolution of the issue of the preventive measure in respect of the defendant until the judgment enters into legal force) (paragraph 9 of part 1 of Article 398 of the CPC).

Therefore, this ground is more applicable to the activities of the court, but it must also be taken into account by inquiry officers, investigators and prosecutors, since the ultimate recipient of the results of their procedural activities is the court. For example, a death sentence or life imprisonment may be imposed in a case. In such a situation, it is reasonable to apply lawful and well-founded preventive measures already during the pre-trial proceedings in the case. However, this does not deprive the court of the right to modify or revoke a previously applied preventive measure, or to select one if it has not been applied (Articles 322 and 342 of the CPC).

The high degree of public danger posed by the crime and the personality of the person who committed it, and so on, may indicate the need for the court to apply a preventive measure in order to ensure the execution of the judgment (part 5 of Article 342 of the CPC).

Alongside the aforementioned general grounds for applying any preventive measures, in certain cases preventive measures may be selected solely on the grounds of the gravity of the crime committed. However, this ground does not apply to all preventive measures, but only to detention in custody.

Such practice existed during the period when the 1959 Criminal Procedure Code of the Kazakh SSR was in force (see Article 70).

Which crimes are referred to in part 2 of Article 136 of the CPC, the commission of which presupposes the selection of detention in custody solely on the grounds of their gravity? These are murder committed under conditions of a state of emergency or during mass riots (paragraph 15 of part 2 of Article 99 of the Criminal Code); mercenary activity resulting in the death of people or other grave consequences (part 4 of Article 170 of the Criminal Code); high treason (Article 175 of the Criminal Code); encroachment upon the life of the First President of the Republic of Kazakhstan – Leader of the Nation (Article 177 of the Criminal Code); encroachment upon the life of the President of the Republic of Kazakhstan (Article 178 of the Criminal Code); sabotage (Article 184 of the Criminal Code); an act of terrorism (part 4 of Article 255 of the Criminal Code); the establishment and leadership of a criminal community, as well as participation therein (part 5 of Article 263 of the Criminal Code); smuggling of items withdrawn from circulation or items whose circulation is restricted (part 4 of Article 286 of the Criminal Code); illegal manufacture, processing, acquisition, storage, transportation for the purpose of sale, shipment or sale of narcotic drugs, psychotropic substances or their analogues (part 4 of Article 297 of the Criminal Code); theft or extortion of narcotic drugs, psychotropic substances or their analogues (part 4 of Article 298 of the Criminal Code); inducement to consume narcotic drugs, psychotropic substances or their analogues (part 4 of Article 299 of the Criminal Code).

It is obvious that the nature of these crimes objectively places them in the category of dangerous and grave crimes, which, taking into account the circumstances specified in Article 138 of the CPC, may entail the application of detention in custody in respect of the persons concerned, subject to the authorization of an investigating judge.

It should also be borne in mind that the decision on the application of a preventive measure may specify, depending on the circumstances of the case, all or a particular ground for applying the preventive measure. However, reference to any ground requires substantial reasoning and the presentation of evidence confirming its existence in the criminal case.

It is important to note that the CPC, as a general rule, excludes the application of detention in custody to persons suspected or accused of committing economic crimes (Articles 214–249 of the Criminal Code).

However, this rule does not apply to cases involving the commission of certain crimes in the sphere of economic activity, which are listed in the provisions of part 3 of Article 136 of the CPC, are of a grave nature, are characterized by complexity in their detection and investigation, are committed by criminal groups, and so on.

At the same time, the law additionally stipulates the possibility of applying detention in custody in cases involving economic crimes if the suspect attempted to abscond or absconded from the criminal prosecution authorities or the court, or if the suspect is suspected of committing a crime as part of an organized group or a criminal community (criminal organization) (paragraphs 4) and 5) of part one of Article 147 of the CPC).

Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan. By Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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