Commentary on Article 140. Procedure for Applying Preventive Measures of the Criminal Procedure Code of the Republic of Kazakhstan

1. Two or more preventive measures may not be applied simultaneously to a suspect or accused person.

2. The body conducting the criminal proceedings shall issue a resolution on the application of a preventive measure, specifying the criminal offence of which the person is suspected or accused and the grounds for applying that preventive measure. A copy of the resolution shall be served on the person against whom it has been issued, and the procedure for appealing the decision to apply the preventive measure, as provided for by this Code, shall be explained to that person simultaneously.

In respect of a suspect, a preventive measure shall be applied only after a resolution has been issued on the legal classification of his or her act, except in the cases provided for in Article 139 of this Code.

3. When applying a preventive measure not involving detention, one or more of the following obligations may be imposed on a suspect, accused person or defendant in order to ensure proper conduct:

1) to appear before the person conducting the pre-trial investigation, the prosecutor or the court at the time specified by them;

2) not to leave the permanent or temporary place of residence without the permission of the body conducting the criminal proceedings;

3) to notify the person conducting the criminal proceedings and the prosecutor of any change in place of residence or place of employment;

4) not to communicate with certain persons and not to visit certain places;

5) to undergo a course of treatment for drug or alcohol addiction;

6) to wear electronic tracking devices.

4. If a suspect or accused person commits acts that violate the measures provided for in Articles 141, 142, 143, 144, 145 and 146 of this Code, a stricter preventive measure shall be applied to them, and the suspect or accused person must be notified thereof when a copy of the relevant resolution is served. In the event of a violation of the procedural coercive measures provided for in Articles 156 and 165 of this Code, a preventive measure shall be selected in respect of the suspect or accused person.

Article 140 of the CPC contains the general conditions for applying preventive measures in criminal cases. Certain aspects of their application by an inquirer, investigator or prosecutor depend on the type of preventive measure, the list of which is provided for in Part 1 of Article 137 of the CPC. Thus, when selecting detention, including temporary detention, extradition arrest, house arrest and bail, as well as when cancelling or changing these measures, persons conducting the pre-trial investigation and the prosecutor are required to comply with the requirements of Part 1 of Article 55, Part 5 of Article 62, and Articles 145—153 and 588—589 of the CPC.

It is important to note that the list of preventive measures includes types of measures arranged from less severe to more severe. This suggests that preventive measures should be selected in accordance with the circumstances of the criminal case and in the sequence in which they are set out in the law.

An analysis of the provisions of Article 140 of the CPC makes it possible to identify the following regularities.

First and foremost, preventive measures are selected in respect of a person suspected or accused of committing a criminal offence (Part 1 of Article 140 of the CPC).

A preventive measure selected once may be changed as the criminal case progresses through the stages of criminal proceedings, but only one preventive measure may be selected at any given time (Part 1 of Article 140 of the CPC).

As a general rule, the application of a preventive measure is permitted only after a resolution has been issued in respect of the suspect on the legal classification of his or her act in accordance with Articles 203—207 of the CPC, except in the cases provided for in Article 139 of the CPC (Part 2 of Article 140 of the CPC). This is a very significant provision of the law, which identifies a specific person who, objectively and on the basis of sufficient data, that is, evidence, is identified as a suspect in the case and may subsequently become an accused person in the case.

The selection of a preventive measure requires the issuance of a resolution, a copy of which shall be served on the suspect, together with an explanation of the right to appeal to the prosecutor or the investigating judge. A copy of the resolution shall also be forwarded to the prosecutor to determine its legality and validity and to include it in the supervisory proceedings in the case (Part 2 of Article 140 of the CPC).

Like any resolution issued in a case, the resolution consists of an introductory part, a descriptive and reasoning part, and an operative part. In the introductory part, in addition to the title of the decision, the place and date of its adoption, and information about the person conducting the investigation or the judge, general information about the criminal case shall also be indicated (its state registration number, the person in respect of whom the pre-trial investigation was initiated, and the articles of the Criminal Code under which it was initiated). In the descriptive and reasoning part, in addition to indicating the elements of the crime committed, evidence establishing the existence of the grounds and circumstances for applying precisely this preventive measure, rather than another one, in the case should be specified. The operative part shall indicate the type of preventive measure selected, the possibility for the suspect or accused person to appeal to the prosecutor or the investigating judge, and the forwarding of a copy of the resolution to the prosecutor.

The general rule for applying preventive measures not involving detention is the possibility of imposing certain obligations on the suspect or accused person to ensure the objectives of their selection and proper law-abiding conduct. One or several obligations may be imposed, depending on the circumstances of the case and the personal characteristics of the individual who is the subject of the criminal offence.

The list of obligations is established in Part 3 of Article 140 of the CPC. Since the content of these obligations is generally clear, we will merely note that Subparagraph 6 of Part 3 of Article 140 of the CPC specifies the obligation to wear electronic devices for monitoring the whereabouts of the person under investigation, for example, where house arrest has been applied to that person (wearing an electronic bracelet).

In every case involving the use of electronic tracking devices, a note shall be made in the resolution on the application of the preventive measure indicating that the purpose of such devices has been explained to the suspect or accused person. Electronic tracking devices shall not be used in respect of military personnel transferred to the supervision of the command of a military unit or persons held in custody (Part 2 of Article 137 of the CPC).

The use of electronic tracking devices is permitted provided that measures are taken to conceal them from the observation of others. Their use must take into account the places visited by the suspect, accused person or defendant and their routes of movement, as well as their age, state of health, marital status and lifestyle, — as stated in Part 3 of Article 137 of the CPC.

The procedure, conditions and grounds for using electronic tracking devices during proceedings in respect of a suspect, accused person or defendant shall be determined by the Government (see the commentary to Part 4 of Article 137 of the CPC).

When a copy of the resolution selecting a preventive measure is served, the suspect or accused person and other persons connected with that measure (guarantors, parents, etc.) shall be warned of the need to comply with all instructions and additional restrictions arising from the application of the specific preventive measure and, in the event of non-compliance, of the possibility of applying a stricter preventive measure to the suspect or accused person (Part 4 of Article 140 of the CPC).

Conversely, if a suspect or accused person violates the terms of an undertaking to appear (which is not a preventive measure, Article 156 of the CPC) or a prohibition on approaching (which is not a preventive measure, Article 165 of the CPC), the law permits the application of a preventive measure corresponding to the nature of the violation (Part 4 of Article 140 of the CPC).

In general, the exclusive authority to authorize detention, house arrest, extradition arrest, the extension of their periods, and bail belongs solely to the investigating judge.

Bail is either imposed by the investigating judge simultaneously with the authorization of detention, with this fact being reflected in the text of the resolution authorizing detention, or is authorized as a substitute for detention in accordance with the procedure provided for in Parts 5—9 of Article 148 of the CPC.

Courts of first instance and appellate courts are entitled to apply any preventive measure provided for in Part 1 of Article 137 of the CPC when considering a case on its merits.

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

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