Commentary on Article 165. Prohibition on Approaching of the Criminal Procedure Code of the Republic of Kazakhstan

1. A prohibition on approaching consists of restricting a suspect, accused person or defendant from searching for, pursuing, visiting, making telephone calls to, or communicating by other means with the victim and other persons participating in the case, for the purpose of protecting them.

A prohibition on approaching shall be authorized by an investigating judge or imposed by the court.

2. Where there is a real threat or where a suspect or accused person has committed a criminal offence involving the use of violence or the threat of violence against family members and minors, the person conducting the pre-trial investigation, upon the written application of the victim or another person subject to protection, shall issue a resolution to initiate a motion before the court for authorization of a prohibition on approaching and shall forward it to the court.

Certified copies of the materials of the criminal case confirming the necessity of applying the prohibition on approaching shall be attached to the resolution.

A copy of the resolution shall simultaneously be sent to the prosecutor.

3. Repealed by Law of the Republic of Kazakhstan No. 118-VI dated December 21, 2017 (shall enter into force upon the expiration of ten calendar days after the date of its first official publication).

4. A motion for authorization of a prohibition on approaching shall be considered by the investigating judge, with the participation of the prosecutor, the suspect, the accused person, their defence counsel, the victim or another person subject to protection, within three days from the date the motion is received by the court.

5. The failure of the specified participants in the proceedings to appear, provided that they have been duly notified by the court of the place and time of the court hearing, shall not prevent the court hearing from being conducted.

6. Having considered the motion and the submitted case materials, the investigating judge shall issue a ruling authorizing or refusing to authorize the prohibition on approaching. A ruling authorizing or refusing to authorize a prohibition on approaching may be appealed or reviewed upon the prosecutor's application in accordance with the procedure provided for in Article 107 of this Code.

6. The ruling on the prohibition on approaching must specify the grounds for applying this procedural coercive measure and the types of prohibition on approaching, as well as the authority entrusted with monitoring compliance therewith. A copy of the ruling on the prohibition on approaching shall be served on the prosecutor, the suspect, the accused person, the defence counsel, the protected person and the authority exercising control.

7. In the event of a violation of the prohibition on approaching, a monetary penalty may be imposed on the suspect or accused person in accordance with the procedure provided for in Article 160 of this Code, and a preventive measure may also be applied.

8. The prohibition on approaching shall be cancelled by a reasoned resolution of the criminal prosecution authority with the consent of the prosecutor, or by the court during the judicial examination of the criminal case, when the necessity for this measure ceases to exist.

Note. Article 165 was amended by the Laws of the Republic of Kazakhstan dated July 11, 2017, No. 91-VI (shall enter into force upon the expiration of ten calendar days after the date of its first official publication); dated December 21, 2017, No. 118-VI (shall enter into force upon the expiration of ten calendar days after the date of its first official publication); an amendment was made to the Kazakh-language text of the Article, while the Russian-language text remains unchanged, in accordance with the Law of the Republic of Kazakhstan dated July 12, 2018, No. 180-VI (shall enter into force upon the expiration of ten calendar days after the date of its first official publication).

By virtue of its legal nature and the restrictions it establishes, the prohibition on approaching is classified as one of the other measures of procedural coercion (it substantially affects the personal liberty of an individual and citizen) and is simultaneously regarded as a security measure for participants in criminal proceedings (subparagraph 5) of paragraph 1 of Article 97 of the CPC).

The prohibition on approaching should be considered, on the one hand, as a security measure preventing an existing real threat of violence against a participant in criminal proceedings who is subject to protection, and, on the other hand, as a consequence imposed in connection with the fact that violence or a threat thereof has been carried out by the suspect or accused person in the form of committing a criminal offence (Part 2 of Article 165 of the CPC).

Being a measure of procedural coercion, the prohibition on approaching applies to suspects, accused persons and defendants against whom preventive measures in the form of house arrest or detention have not been imposed (Part 1 of Article 165 of the CPC).

3. The category of persons whom suspects, accused persons and defendants are prohibited from approaching when a security measure is imposed is established by Articles 95–97 of the CPC. These are all persons who participate in criminal proceedings in one capacity or another and who, according to the case materials, require such protection. Therefore, the application of this measure of procedural coercion should not be limited solely to cases involving the existence of a real threat or the commission by a suspect or accused person of a criminal offence involving the use of violence or the threat of its use against family members and minors (Part 2 of Article 165 of the CPC).

The law assigns the authorization of a prohibition on approaching to the competence of the investigating judge during pre-trial investigation or the court at the judicial stages (Part 1 of Article 165 of the CPC).

The procedure for imposing a prohibition on approaching includes:

a) receipt by the pre-trial investigation authority of a written application from the victim or another participant in criminal proceedings who is subject to protection;

b) issuance by the pre-trial investigation authority of a resolution to initiate a motion before the investigating judge for authorization of a prohibition on approaching;

c) forwarding the resolution, application and certified copies of the criminal case materials to the investigating judge for examination and decision-making;

d) simultaneous forwarding of a copy of the resolution to the prosecutor;

e) holding a court hearing by the investigating judge;

f) issuance of a ruling by the investigating judge;

g) serving a copy of the ruling on the prosecutor, the suspect, the accused person, the defence counsel, the protected person and the authority entrusted with monitoring compliance with the coercive measure (Parts 2–6 of Article 165 of the CPC).

In the latter case, monitoring compliance with the prohibition on approaching shall be entrusted to criminal prosecution authorities, institutions and bodies executing sentences, as well as a court bailiff.

In essence, the structure of the court hearing includes:

a) scheduling of the court hearing by the investigating judge;

b) conducting the court hearing without the participation of the parties to the criminal proceedings;

c) adoption, in the deliberation room, of a ruling authorizing or refusing to authorize the prohibition on approaching.

Among the other procedural consequences of applying a prohibition on approaching, the following should be highlighted:

a) in the event of violation of its requirements, the possibility of imposing a monetary penalty on the suspect or accused person in accordance with the procedure provided for in Article 160 of the CPC;

b) in the event of violation of its requirements, the additional application of a preventive measure to the suspect or accused person, alongside the imposition of a monetary penalty, depending on the nature of the violations;

c) cancellation of its application by the criminal prosecution authority through the issuance of a reasoned resolution and with the consent of the investigating judge, or by the court hearing the case on its merits.

In general, the essence of the prohibition on approaching excludes any forms of communication or contact between the suspect or accused person and the protected persons throughout the proceedings and until their completion. These restrictions must be clearly specified in the ruling of the investigating judge or the court and, after its adoption and service, must be clearly explained by the investigating judge or the person conducting the pre-trial investigation to the suspect, the accused person and the protected persons.

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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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