Commentary on Article 137. Preventive Measures and Additional Restrictions under the Criminal Procedure Code of the Republic of Kazakhstan
1. Preventive measures are:
1) a written undertaking not to leave the place of residence and to maintain proper conduct;
2) personal surety;
3) transfer of a military servicemember under the supervision of the command of the military unit;
4) placement of a minor under supervision;
5) bail;
6) house arrest;
7) detention in custody.
2. Where necessary, electronic tracking devices may be applied to a person in respect of whom a preventive measure has been imposed, with the exception of transfer of a military servicemember under the supervision of the command of a military unit and detention in custody.
A note on the application of electronic tracking devices and the explanation of their purpose to the suspect or accused shall be made in the ruling imposing the preventive measure.
3. The use of electronic tracking devices shall be permitted subject to the adoption of measures to conceal them from observation by others and shall be carried out taking into account the places visited by the suspect or accused and their routes of movement, as well as their age, state of health, marital status and lifestyle.
4. The procedure, conditions and grounds for the use of electronic tracking devices shall be determined by the Government of the Republic of Kazakhstan.
The provisions of Article 137 of the CPC contain an exhaustive list of seven preventive measures and additional restrictions (electronic devices for tracking the whereabouts of the subject of a criminal offence) that may be applied to a suspect or accused. This list is exhaustive.
The structure of the provisions of Article 137 of the CPC leaves no doubt that the application of preventive measures by criminal prosecution authorities, an investigating judge and a court must follow a certain logic, sequence and range of alternatives, progressing from a less severe measure to a more severe one. However, such a transition depends on the public danger posed by the criminal offence, the personality of the subject of the criminal offence, and their conduct during the investigation or trial (Part 1-1 of Article 136 of the CPC).
At the same time, although the procedure for applying the provisions of Article 137 of the CPC presupposes consistency in the application of preventive measures, this procedure may be altered where, in exceptional cases, on the grounds and for the sole reason of the dangerous nature of the act, it is necessary to immediately impose detention in custody on a suspect or accused (see Part 2 of Article 136 of the CPC).
Regarding electronic tracking devices (Parts 2–4 of Article 137 of the CPC).
First. The use of these devices is a right, but not an obligation, of the authority conducting the criminal proceedings and does not depend on the wishes of the subject of the criminal offence.
Second. Their use shall be recorded in the ruling selecting the preventive measure simultaneously with their application or in a separate ruling issued after the preventive measure has been imposed.
Third. In all cases of their application, the role and purpose of these devices must be explained to the subject of the criminal offence.
Fourth. They may be used only in respect of a suspect or accused against whom a preventive measure has been selected, for the purpose of ensuring proper conduct and timely appearance when summoned by the authority conducting the criminal proceedings.
Fifth. They shall not be used if the suspect or accused is under the supervision of the command of a military unit or is being held in custody.
Sixth. When they are used, the law requires consideration of the totality of objective and subjective factors relating to the subject of the criminal offence, their surroundings and personality, as referred to in Part 3 of Article 137 of the CPC. In certain cases, these circumstances may preclude the use of electronic tracking devices, for example, where the subject of the criminal offence is elderly or in poor health.
Seventh. These devices perform the function of a security measure for participants in criminal proceedings. At present, the electronic tracking system may include devices that notify victims of a criminal offence when the subject of the criminal offence approaches them or their places of residence, for the purpose of notifying the authorities conducting the criminal proceedings so that they can take the necessary measures.
Below is the full text of Resolution No. 1369 of the Government of the Republic of Kazakhstan dated December 24, 2014, which approved the Rules, Conditions and Grounds for the Use of Electronic Tracking Devices (entered into force on January 1, 2015):
“1. General Provisions
These Rules, Conditions and Grounds for the Use of Electronic Tracking Devices (hereinafter referred to as the Rules) have been developed in accordance with Part Four of Article 137 of the Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014 (hereinafter referred to as the CPC) and establish the procedure, conditions and grounds for the use of electronic tracking devices in respect of suspects, accused persons and defendants.
An additional restriction in the form of the use of electronic tracking devices may be applied to persons in respect of whom preventive measures provided for in Article 137 of the CPC have been selected, with the exception of transfer of a military servicemember under the supervision of the command of a military unit and detention in custody.
The use of electronic tracking devices, as well as the verification and obtaining of information about the whereabouts of a suspect, accused person or defendant, shall be carried out by a unit (hereinafter referred to as the unit) designated by the head of the authority conducting the criminal proceedings.
Procedure for the Use of Electronic Tracking Devices
The authority conducting the criminal proceedings may apply the additional restriction both when selecting a preventive measure and when the grounds provided for in Paragraph 20 of these Rules arise. In this case, a note on the use of electronic tracking devices shall be made in the ruling imposing the preventive measure, and the suspect, accused person or defendant shall be informed of their purpose and the necessity of their use, including the consequences of violating the rules governing their use.
An explanation to a minor suspect, accused person or defendant shall be provided in the presence of their legal representatives or the guardianship and trusteeship authority. The obligations and restrictions imposed on the suspect, accused person or defendant shall be determined by criminal procedure legislation.
When considering the use of electronic tracking devices, the authority conducting the criminal proceedings shall refer the suspect or accused for a medical examination to establish their general state of health and the absence of medical contraindications to the use of such devices, and shall also obtain from them a written undertaking confirming that the health of persons living with them is not at risk.
For the installation of electronic tracking devices and the subsequent monitoring of a suspect, accused person or defendant, the authority conducting the criminal proceedings and handling the criminal case shall, within twenty-four hours from the moment the ruling selecting a preventive measure involving the use of electronic tracking devices is issued, send the following documents to the unit:
copies of the rulings on the legal classification of the act, except for the cases provided for in Article 139 of the CPC, and on the application of the preventive measure, certified by the seal of the authority conducting the criminal proceedings;
a certificate concerning the criminal case containing information on: the crime committed; the defence counsel of the suspect or accused; whether the suspect, accused person or defendant is registered with specialized healthcare institutions; the contact telephone numbers of the investigator or inquiry officer, or the person replacing them, who is handling the criminal case; information about the place of residence, criminal record, place of employment or study of the suspect, accused person or defendant;
a copy of the identity document of the suspect, accused person or defendant, as provided for in Article 300 of the CPC.
After receiving the documents specified in Paragraph 6 of these Rules, the unit shall immediately proceed with the execution of the ruling of the authority conducting the criminal proceedings, namely: 1) install, issue and activate electronic tracking devices at the place where the preventive measure is to be enforced in respect of the suspect, accused person or defendant; 2) draw up an acceptance and transfer certificate for the electronic tracking device with the suspect, accused person or defendant; 3) explain to the suspect, accused person or defendant, against their signature, the instructions on safety measures and the operating rules for the installed electronic tracking devices. In the case of minor suspects, accused persons or defendants, the explanation shall be provided in the presence of their legal representatives, defence counsel or the guardianship and trusteeship authority; 4) after registering the ruling and placing the suspect, accused person or defendant on record, immediately send a notification to the authority conducting the criminal proceedings confirming that the ruling has been accepted for execution.
An employee of the unit shall: 1) continuously collect information using data from the monitoring console concerning the compliance of the suspect, accused person or defendant with the established obligations and restrictions; 2) take measures to establish the causes of technical malfunctions of electronic tracking devices and eliminate them; 3) immediately report to the head of the unit and the authority conducting the criminal proceedings, or, in their absence, to the head of the authority or its duty unit, upon receiving information about damage to or unauthorized removal of electronic tracking devices by the suspect, accused person or defendant, violations of obligations and restrictions, as well as technical malfunctions (failures and interruptions in operation). Within twenty-four hours, the employee shall send written notification to the authority conducting the criminal proceedings so that appropriate measures may be taken, including the organization of search activities; 4) upon receiving a signal indicating damage to, disconnection or unauthorized removal of electronic tracking devices by the suspect, accused person or defendant, immediately arrange for employees to visit the place where the preventive measure is being enforced in order to verify that the devices are functioning properly.
At the request of the authority conducting the criminal proceedings and handling the criminal case, the unit shall, within twenty-four hours, provide information concerning the monitoring of the whereabouts of the suspect, accused person or defendant and their compliance with the obligations and restrictions imposed on them.
The grounds for terminating the use of electronic tracking devices and their removal by the unit shall be: 1) cancellation or modification of the preventive measure in accordance with Article 153 of the CPC; 2) a court judgment; 3) the death of the suspect, accused person or defendant.
When a criminal case transferred in accordance with the rules of investigative jurisdiction is accepted for proceedings in respect of a suspect or accused against whom a preventive measure involving the use of electronic tracking devices has been applied, as well as when a court pronounces a judgment in respect of a defendant, the unit shall draw up an acceptance and transfer certificate for the removal and installation of the electronic tracking device with the suspect, accused person or defendant. Damage caused by the intentional damaging or destruction of electronic tracking devices by a suspect, accused person or defendant shall be compensated in accordance with criminal procedure and civil procedure law.
Conditions for the Use of Electronic Tracking Devices
The use of electronic tracking devices shall be permitted subject to the adoption of measures to conceal them from observation by others and shall be carried out taking into account the places visited by the suspect or accused and their routes of movement, as well as their age, state of health, marital status and lifestyle.
Electronic tracking devices shall be used provided that the suspect, accused person or defendant has a permanent or temporary place of residence within the territory of the Republic of Kazakhstan.
The application of an additional restriction shall not be permitted where there are medical contraindications relating to the health of the suspect, accused person or defendant.
The head of the unit shall decide on the installation of the appropriate equipment in accordance with the obligations and restrictions imposed on the suspect, accused person or defendant and on the basis of information characterizing their personality, taking into account technical feasibility.
If, for technical reasons, it becomes impossible to continue using electronic tracking devices in respect of a suspect, accused person or defendant, the unit shall take measures to replace them with other devices and, upon detecting a malfunction, shall immediately replace the electronic tracking devices.
If a suspect, accused person or defendant is taken to a healthcare institution and hospitalized for medical reasons, the unit shall immediately notify the authority conducting the criminal proceedings and the healthcare institution of the fact that electronic tracking devices have been applied in respect of that person.
Grounds for the Use of Electronic Tracking Devices
The grounds for the use of electronic tracking devices in respect of a suspect, accused person or defendant shall be a ruling of the authority conducting the criminal proceedings on the application of a preventive measure in the form of a written undertaking not to leave the place of residence and to maintain proper conduct, personal surety, placement of a minor under supervision, bail or house arrest, containing a note on the need to impose an additional restriction.
Electronic tracking devices shall be used in the following cases: 1) where the suspect, accused person or defendant violates one or more obligations provided for by law in accordance with the preventive measure applied to them; 2) where a court refuses a motion for authorization of a preventive measure in the form of detention in custody despite the existence of sufficient grounds for such a measure; 3) where there is a possibility of a threat to the life, health or property of certain persons, at their request, in order to track the movements and whereabouts of the suspect, accused person or defendant.”
For informational purposes, it should also be noted that, in implementation of the requirements of the Criminal Executive Code of the Republic of Kazakhstan, the Government of the Republic of Kazakhstan adopted Resolution No. 1180 dated November 7, 2014, approving the List of Electronic Tracking Devices Used by the Probation Service of the Criminal Executive System and Police Officers of the Internal Affairs Bodies of the Republic of Kazakhstan.
According to Paragraph 1 of the List, electronic tracking devices are used by the probation service of the criminal executive system to ensure proper monitoring and obtain information about the whereabouts of persons sentenced conditionally, persons sentenced to restriction of liberty, and persons released on parole, as well as by police officers of the internal affairs bodies to ensure proper monitoring and obtain information about the whereabouts of persons released on parole and persons subject to administrative supervision, and to obtain information about the whereabouts of persons in respect of whom administrative supervision has been established by a court. These devices include personal monitoring devices, technical equipment and their monitoring devices.
Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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