Commentary on Article 152. Consideration by the Investigating Judge of a Motion to Extend the Period of Detention in Custody and Calculation of Time Limits of the Criminal Procedure Code of the Republic of Kazakhstan
- 1. A motion to extend the period of detention in custody shall be considered individually by the investigating judge. The participation of the prosecutor in the court hearing is mandatory. The defence counsel, the legal representative of the suspect, the victim, the victim’s legal representative and representative may also participate in the hearing. Their failure to appear, provided that they have been duly notified in advance of the time of consideration of the motion, shall not prevent its judicial consideration.
- The court shall have the right to find it necessary for the person in respect of whom a motion to extend the period of detention in custody has been submitted to participate in the consideration of the matter and to assign the authority conducting the investigation the responsibility of bringing that person to the court hearing.
- The person in respect of whom the prosecutor has filed a motion to extend the period of detention in custody shall have the right to participate in the court hearing. In such a case, the court shall have the right to assign the authority conducting the investigation the responsibility of bringing that person to the court hearing.
- 2. At the beginning of the hearing, the investigating judge shall announce which motion is to be considered, explain the rights and obligations of the persons present, and then, having heard the arguments of the parties regarding the submitted motion as to the necessity of maintaining the preventive measure in the form of detention in custody, shall issue one of the following rulings:
- 1) granting the motion to extend the period of detention in custody of the suspect or accused;
- 2) refusing to grant the motion to extend the period of detention in custody of the suspect or accused, cancelling or changing the preventive measure to a less restrictive one, and releasing them from custody.
- 3. A motion to extend the period of detention in custody shall be considered within a period not exceeding three days from the date of receipt of the motion.
- 4. The head of the administration of the place of detention in custody shall, no later than twenty-four hours before the expiry of the period of detention in custody of the suspect or accused, notify the authority or person in whose proceedings the criminal case is pending, as well as the prosecutor, thereof. If, upon expiry of the period of detention in custody established by law, no corresponding decision on the release of the suspect or accused or on the extension of their period of detention in custody has been received, the head of the administration of the place of detention in custody shall release them by their own ruling, a copy of which shall be sent within twenty-four hours to the authority or person in whose proceedings the criminal case is pending and to the prosecutor.
- 5. In the event of failure to comply with the requirements of part four of this Article, the head of the administration of the place of detention in custody shall bear liability as established by law.
- 6. The period of detention in custody shall be calculated from the moment the suspect is taken into custody until the suspect is notified of the completion of investigative actions and informed of the right to familiarise themselves with the materials of the criminal case. The period of detention in custody shall include the time during which the person was detained as a suspect and the time spent in compulsory placement in a psychiatric or other medical organisation pursuant to a court decision.
The detention in custody of a suspect during the period in which the suspect and defence counsel familiarise themselves with the materials of the criminal case shall be authorised and extended by the investigating judge in accordance with the procedure provided for in Articles 148 and 151 of this Code.
The detention in custody of a suspect during the period in which the suspect and defence counsel familiarise themselves with the materials of the criminal case shall not be included in the period established by parts one to four of Article 151 of this Code, but shall be taken into account by the court when imposing a sentence.
- 7. A motion for authorisation of the period of detention in custody of a suspect during the period in which the suspect and defence counsel familiarise themselves with the materials of the criminal case shall be considered in accordance with the procedure and within the time limits provided for by this Article.
The period of detention in custody of a suspect during familiarisation with the materials of the criminal case shall be determined by the investigating judge, taking into account the volume of the criminal case, the number of persons participating in the case and other circumstances affecting the time required to familiarise themselves with the case.
- 8. If the prosecutor returns a criminal case for additional investigation, in respect of which the maximum period of detention in custody of the suspect has not expired and there are no grounds for changing the preventive measure, the period of detention in custody may, upon a reasoned motion of the prosecutor, be extended by the investigating judge within the limit of one month.
When a court returns a criminal case to the prosecutor on the grounds provided for by this Code, if the maximum period of detention in custody of the accused has not expired and there are no grounds for changing the preventive measure, the same court shall extend the period of detention in custody within the limit of one month from the date the prosecutor receives the case.
- 9. In the event of the repeated placement in custody of a suspect or accused in the same case, as well as in a criminal case joined to that case or severed from it, the period of detention in custody shall be calculated taking into account the time previously spent in custody.
- 10. In the event of the extradition (surrender) to the Republic of Kazakhstan by a foreign state of a person who is wanted, the period of detention in custody shall be calculated from the date of their arrival in the territory of the Republic of Kazakhstan, while the time during which the person was held in custody under the procedure of extradition arrest in the territory of the foreign state shall be credited towards the total period of detention in custody when imposing a sentence.
- 11. The procedure for calculating and extending the period of detention in custody of a suspect or accused established by this Article shall also apply when a conviction is quashed as a result of proceedings before the cassation instance or on the basis of newly discovered circumstances in respect of a person serving a sentence of imprisonment.
- Note. Article 152 was amended by Law of the Republic of Kazakhstan No. 378-V dated 31 October 2015 (entered into force on 1 January 2016); and by Law No. 180-VI dated 12 July 2018 (entered into force upon the expiry of ten calendar days after the date of its first official publication).
Unlike the provisions of Article 151 of the CPC, the provisions of Article 152 of the CPC regulate the procedural form of consideration by the investigating judge of the issue of extending the period of detention in custody on the basis of a motion submitted by a person conducting pre-trial investigation and approved by the prosecutor of the appropriate level. They also address such an important issue as the calculation of these periods, bearing in mind the provision of the law that an extension of the period of detention in custody beyond eighteen months is not permitted and that a suspect or accused held in custody is subject to immediate release (part 5 of Article 151 of the CPC).
Let us examine the key provisions of this Article.
First. A motion to extend the period of detention in custody shall be considered by the investigating judge individually and at a court hearing, with minutes of the hearing being kept (part 1 of Article 152 of the CPC). In order to conduct a full-fledged court hearing and adopt a lawful and well-founded decision, the law grants the investigating judge three days (part 3 of Article 152 of the CPC).
Second. While the participation of the prosecutor in this court hearing is mandatory by law, since the motion has been submitted by the prosecutor, the participation of the defence counsel and other persons who have been notified in advance of the place, date and time of the hearing is their right, but not their obligation. That is, if the participants in the proceedings have not been duly notified of the place, date and time of the court hearing, they shall have the right to file a complaint with the regional court or a court equated thereto in accordance with the procedure set out in Article 107 of the CPC, seeking a review of the decision rendered by the investigating judge with their participation. The participation of the suspect in the court hearing is mandatory in two cases: if the prosecutor requests such participation or if the investigating judge considers such participation necessary (part 1 of Article 152 of the CPC).
Third. The structure of the court hearing itself includes:
- opening the court hearing, indicating its grounds;
- explaining the legal capacity and procedural rights of the participants in the criminal proceedings;
- hearing the prosecutor’s arguments regarding the motion;
- hearing other participants in the proceedings regarding the submitted motion;
- adopting a decision in the deliberation room;
- announcing the ruling to the participants in the court hearing and explaining their right to appeal or challenge it by way of a protest before the regional court or a court equated thereto in accordance with the procedure set out in Article 107 of the CPC.
Fourth. Following the court hearing, the investigating judge shall be entitled to issue one of two types of rulings.
If the investigating judge disagrees with the motion of the criminal prosecution authorities and the prosecutor, the investigating judge shall have the right either to cancel entirely the previously imposed preventive measure in the form of detention in custody or to change it to another measure not involving deprivation of liberty.
In this regard, the clarifications of the Supreme Court are also relevant. According to these clarifications, when considering a motion to extend the period of detention in custody, the investigating judge should take into account not only compliance with the time limits established by Article 151 of the CPC, but also establish specific circumstances indicating the necessity of further detention in custody and determine whether the circumstances that served as grounds for authorising this preventive measure have ceased to exist or have changed. When extending the period of detention in custody on the grounds of the need to conduct additional investigative actions, the investigating judge is obliged to verify the validity of the arguments of the pre-trial investigation authority regarding the continuation of investigative actions. Where a motion to extend the period of detention in custody is repeatedly submitted to the investigating court on the grounds of the need to carry out investigative actions specified in previous motions, the judge is obliged to ascertain the reasons why they were not carried out (paragraph 15 of Regulatory Resolution No. 1 of the Supreme Court dated 24 January 2020). And, presumably, to adopt one of the decisions specified in part 2 of Article 152 of the CPC.
The periods of detention in custody may be extended by the investigating judge in accordance with the procedure set out in Article 152 of the CPC when a criminal case is returned by the prosecutor to the pre-trial investigation authority (Article 302 of the CPC) or directly by the court to the prosecutor on the grounds provided for by the CPC (Article 323 of the CPC), provided that the grounds for cancelling or changing detention in custody in respect of the person in the returned criminal case have not ceased to exist and the maximum period of their detention has not expired (part 8 of Article 152 of the CPC).
In the first case (where the case is returned by the prosecutor), the one-month period for which detention in custody is extended shall be calculated from the moment the investigating judge issues a ruling on the motion of the criminal prosecution authorities and the prosecutor.
In the second case (where the case is returned to the prosecutor by the court), this period shall be calculated from the moment the prosecutor receives the case and shall be established in the court ruling returning the criminal case to the prosecutor, either at the stage of preparation of the case for trial or during the main court hearing.
With regard to the calculation of periods of detention in custody, namely, what is included in these periods and what is not included but is taken into account when imposing a sentence, the provisions of parts 6–11 of Article 152 of the CPC regulate the following.
First. The periods included in the total period during which a person is held in custody are specified in the first paragraph of part 6, part 9 and part 10 (periods of detention in custody, including those calculated from the date of arrival in the Republic of Kazakhstan of an extradited person) of Article 152 of the CPC. As indicated above, these periods in their entirety shall not exceed eighteen months from the moment detention in custody was first applied with the authorisation of the investigating judge or the court (parts 4–5 of Article 151 of the CPC).
Second. The third paragraph of part 6 and part 10 (the period during which a person was held in custody before being extradited by a foreign state) of Article 152 of the CPC specify periods that are not included in the total period during which a person is held in custody but must be taken into account by the court when imposing a sentence.
Third. The law specifically stipulates that the rules for calculating periods established by parts 6–10 of Article 152 of the CPC shall not be subject to change even when judicial acts are reviewed and quashed under cassation proceedings or on the basis of newly discovered circumstances in respect of a person sentenced to imprisonment (part 11 of Article 152 of the CPC).
The provisions of part 7 of Article 152 of the CPC deserve special attention.
First. The CPC permits the extension of the period of detention in custody during the period in which the suspect familiarises themselves with the materials of a criminal case whose investigation has been completed, also in accordance with the rules of Article 152 of the CPC.
Second. The CPC specifies the factors that the investigating judge must take into account when extending the period of detention in custody in such circumstances: the volume of the criminal case, the number of persons participating in the case and other circumstances affecting the time required to familiarise themselves with the case.
Third. In this regard, the Supreme Court has indicated that the investigating judge’s decision to extend the period of detention in custody of a suspect or accused in this case must be substantiated by factual data confirming the necessity of maintaining this preventive measure. Referring to the fact that the accused and their defence counsel are continuing to familiarise themselves with the case materials as the sole ground for extending the period of detention in custody is impermissible. If the investigating judge establishes that the investigator has failed to organise the process of familiarisation of the suspect, accused and defence counsel with the materials of the criminal case within reasonable time limits, the judge shall have the right to refuse to extend the period of detention in custody (paragraph 16 of Regulatory Resolution No. 1 of the Supreme Court dated 24 January 2020).
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.
Constitution Law Code Regulatory Act Decree Order Decision Resolution Advocate Almaty Lawyer Legal services Legal Consultation Civil Criminal Administrative cases and disputes Defence Arbitration Legal Company of Kazakhstan Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Methodology Rules Note Regulations Programme Charter Statute Charter Article Commentary Resolution Regulations Protocol Draft Programme Messages
