Commentary on Article 48. Calculation of Time Limits of the Criminal Procedure Code of the Republic of Kazakhstan

1. The time limits established by this Code shall be calculated in hours, days, months, and years.

2. When calculating time limits, the hour and the day on which the time limit begins to run shall not be taken into account. This rule shall not apply to the calculation of time limits for detention, remand in custody, house arrest, and placement in a medical institution or an educational organization with a special regime of confinement.

3. Non-working time shall also be included in the calculation of time limits.

4. A time limit calculated in days shall expire at twenty-four hours on the last day of the time limit. A time limit calculated in months shall expire on the corresponding month and date of the last month of the time limit. If the expiry of the time limit falls in a month that does not have the corresponding date, the time limit shall expire on the last day of that month. A time limit calculated in years shall expire on the corresponding month and date of the last year of the time limit. If the expiry of the time limit falls in a month that does not have the corresponding date, the time limit shall expire on the last day of that month. Where the last day of a time limit falls on a non-working day, the day of expiry of the time limit shall be the next working day, except in cases involving the calculation of time limits for detention, remand in custody, house arrest, and placement in a medical institution or an educational organization with a special regime of confinement.

5. When a person is detained on suspicion of committing a criminal offence, the time limit shall be calculated from the moment (hour and minute with precision) when this measure was actually applied. When calculating the periods of remand in custody, house arrest, as well as placement in a medical institution or an educational organization with a special regime of confinement, the first day of the period shall be included.

As follows from Part 1 of Article 48 of the CPC, the entire course of criminal proceedings is subject to certain time limits, that is, periods of time during which criminal procedural legal relations arise, develop, and terminate. In other words, the pre-trial investigation and judicial proceedings are limited by certain time limits. This is reasonable in order to prevent illegality and delays in the investigation and consideration of criminal cases, to prevent the investigator's activities from turning into an “examination” of the prospects of a criminal case in court, and the judge's activities into a kind of scientific investigation of the circumstances of a crime or a “printing press” for issuing judgments. Criminal proceedings are a special type of state activity, and their objectives consist in the prompt restoration, within reasonable time limits, of the rights and legitimate interests of citizens who have suffered from criminal infringements.

The CPC distinguishes time limits calculated in hours (Part 1 of Article 54). This has been done for one purpose only: to verify as quickly as possible the legality and validity of a procedural action being carried out or a procedural decision adopted by the body conducting criminal proceedings, which restricts certain human and civil rights and freedoms. For example, copies of all investigator's decisions on conducting procedural or investigative actions must be sent to the prosecutor within twenty-four hours from the moment they are issued for the purpose of verifying their legality (Part 3 of Article 43, Part 5 of Article 44, Article 198, Part 3 of Article 202, Part 3 of Article 204, Part 6 of Article 232, etc.). The procedure for calculating time limits in the case of detention of a suspect is quite illustrative in this respect. The periods of detention differ depending on the various grounds, but in all cases they must not exceed 72 hours. According to the CPC, the general period of detention of a person as a suspect may not exceed seventy-two hours. This period is established by the Constitution (Paragraph 2 of Article 16), reproduced and detailed in the CPC, and its violation is not permitted under any circumstances. Compliance with the procedural form of detention, including detention time limits, is protected by criminal law (Article 414 of the Criminal Code). If, within forty-eight hours from the moment of actual detention, or within twenty-four hours in respect of minors, the head of the place of detention has not received a court ruling authorizing the remand of the suspect in custody, the head of the place of detention shall immediately release the person by issuing a decision of their own, with the exception of cases provided for in Subparagraphs 1–6 of Part 4 of Article 131 of the CPC, and shall notify the person in charge of the case and the prosecutor thereof. In the cases provided for in Subparagraphs 1–6 of Part 4 of Article 131 of the CPC, the head of the place of detention shall immediately release the person by issuing a decision of their own and notify the person in charge of the case and the prosecutor thereof if no court ruling authorizing the remand of the suspect in custody has been received within seventy-two hours from the moment of actual detention (Part 2 of Article 133 of the CPC).

In the event of failure to comply with these requirements, the head of the administration of the place of detention shall bear liability established by criminal law (Part 3 of Article 133 of the CPC).

The CPC regulates the procedure for detaining a person in considerable detail: initially, after being brought in, the suspect must undergo an examination in accordance with the procedure provided for in Article 223 of the CPC in order to establish their general state of health and the presence of bodily injuries; thereafter, within a period not exceeding three hours from the moment of delivery, the investigator shall draw up a detention record indicating the actual time of detention with precision to the minute (Part 2 of Article 131); the investigator is obliged to notify the prosecutor in writing of the detention within twelve hours from the moment the detention record is drawn up (Part 3 of Article 131); simultaneously with the detention, a personal search of the detained person shall be conducted, the results of which shall be entered into the detention record (Subparagraph 4 of Part 2 of Article 131, Article 132); within twelve hours, the investigator is obliged to immediately notify one of the adult members of the suspect's family of the detention, or, in their absence, other relatives or close persons, or provide the suspect with the opportunity to make such notification personally. In the case of detention of a foreign national, the embassy, consulate or other representative office of that state must also be notified immediately, or, if this is impossible, within twenty-four hours, through the Ministry of Foreign Affairs of the Republic of Kazakhstan in accordance with the procedure established by a joint order of the Minister of Foreign Affairs of the Republic of Kazakhstan and the Prosecutor General of the Republic of Kazakhstan (Article 135); the suspect must be interrogated within twenty-four hours from the moment of detention. Violation of the specified procedure and time limits for detention results in the detention record and the suspect's interrogation record being inadmissible as sources of evidence in a criminal case.

The calculation of certain time limits in the CPC in days also contributes to the resolution of the objectives of criminal proceedings and compliance with the principle of legality and other principles of criminal procedure. For example, the prosecutor is obliged to consider a complaint and notify the person who submitted it of the decision taken within seven days from the moment of its receipt. Complaints concerning violations of the law during detention, search, seizure, seizure of property, recognition of a person as a suspect, qualification of the suspect's act, removal from office, as well as the use of torture, violence, threats or violations of the right to defence, shall be considered within three days from the moment of their receipt. In exceptional cases, where additional materials must be requested or other measures must be taken to verify the complaint, consideration of the complaint within a period of up to fifteen days shall be permitted, with notification of the person who submitted the complaint (Part 2 of Article 105 of the CPC); the commencement of a pre-trial investigation is the registration of an application or report concerning a criminal offence in the Unified Register of Pre-Trial Investigations or the conduct of the first urgent investigative action. The prosecutor shall be notified of the commencement of a pre-trial investigation within one day (Part 1 of Article 179 of the CPC); the main court hearing must commence no earlier than three days after the parties have been notified of the place and time of the court hearing and no later than ten days in the case of consideration under the shortened procedure, and fifteen days in the case of consideration under the general procedure, from the date of issuance of the ruling scheduling the hearing. In exceptional cases, this period may be extended by a judge's ruling, but for no more than thirty days (Part 4 of Article 322 of the CPC), etc.

The calculation of time limits in months is more characteristic of proceedings at the stages of criminal proceedings, which differ in the application of various procedural regimes aimed at a comprehensive, complete and objective examination of the circumstances of the criminal offence committed. For example, the periods for selecting and applying preventive measures in criminal cases may be calculated in months, since they ensure the normal and orderly course of judicial proceedings in a case and are closely connected with the time limits for proceedings in the case. Thus, the pre-trial investigation, calculated from the moment of registration of an application or report in the Unified Register of Pre-Trial Investigations, must not exceed one month in cases of inquiry and two months in cases of preliminary investigation (Part 2 of Article 192 of the CPC); a covert investigative action subject to authorization shall be conducted for a period not exceeding thirty days, etc. (Part 1 of Article 236 of the CPC); a case shall be considered under the appellate procedure, subject to exceptions, no later than one month from the date of its receipt by the court (Article 425 of the CPC); a case shall be considered by the court of cassation within thirty days from the date of its transfer to the court of cassation or the receipt of a submission or protest. This period may be extended by a ruling of the court of cassation, due to the complexity or substantial volume of the case, as well as the existence of other valid reasons, each time for a period not exceeding one month (Part 3 of Article 492 of the CPC), etc.

The regulation of annual time limits in the CPC is also justified and dictated by the specific nature of the criminal cases under investigation (for example, cases involving multiple episodes or offences committed in the territories of different regions, which often require the provision of international legal assistance in criminal cases, etc.), as well as the possibility of correcting investigative and judicial errors after the completion of proceedings in a case, and so forth. For example, an application, protest or submission for review under the cassation procedure of an acquittal that has entered into legal force, a conviction on the grounds of the need to apply the law on a more serious criminal offence, the leniency of the punishment or other grounds entailing a deterioration of the convicted person's position, or a court ruling terminating the case, may be submitted within one year from the date on which they enter into legal force (Part 2 of Article 487 of the CPC); the review, in favour of the convicted or acquitted person, of a conviction or a ruling on confiscation of property on the basis of newly discovered circumstances before the court has delivered its judgment shall not be limited by any time limits (Part 1 of Article 501 of the CPC); the review of an acquittal, a ruling terminating the case, as well as the review of a conviction on grounds that worsen the position of the convicted person, shall be permitted only within the limitation periods for bringing a person to criminal liability and no later than one year from the date on which the new circumstances were discovered (Part 3 of Article 501 of the CPC), etc.

Parts 2–4 of Article 48 of the CPC are devoted to the general procedure for calculating procedural time limits. Their wording makes it possible to conclude that they take into account the specific nature of criminal proceedings, their subject matter, objectives and principles, as well as the burden of formally defined procedures, the abundance of time limits and the application of procedural coercive measures. That is why, when calculating these time limits, non-working time is always included, subject to the exceptions (Part 3 of Article 48 of the CPC). In general, with regard to this issue in the field of criminal proceedings, one should also be guided by the normative resolution of the Constitutional Council of the Republic of Kazakhstan dated April 13, 2012, No. 2, “On the Official Interpretation of the Norms of the Constitution of the Republic of Kazakhstan on the Issue of Calculation of Constitutional Time Limits”, adopted following consideration of the appeal by the Prime Minister of the Republic of Kazakhstan, K.K. Massimov, concerning the official interpretation of the norms of the Constitution of the Republic of Kazakhstan on the issue of calculation of constitutional time limits. It is recommended that it be studied (see the commentary on Article 1 of the CPC).

The law specifically stipulates the calculation of time limits when applying procedural coercive measures (Parts 2, 4 and 5 of Article 48 of the CPC), since this concerns persons who have not yet been convicted by a court and necessitates the precise calculation of the commencement of the application of these measures. Thus, regardless of the circumstances of the detention of a suspect, the inquiry body or investigator is obliged to indicate, among other things, in the detention record: by whom the suspect was detained, the grounds and motives, the place of detention, the time of actual detention and delivery (with precision to the hour and minute); the time of actual (physical) detention and delivery with precision to the hour and minute. It is precisely from this hour and minute of the corresponding day that the period of detention of the suspect begins to run. This period may not, as a general rule, exceed seventy-two hours, as well as other time limits within the overall detention period established by the CPC (Part 2 of Article 133). Such a high degree of precision in specifying the time is no longer required when calculating the periods of remand in custody, house arrest, as well as placement in a medical institution or an educational organization with a special regime of confinement, for which the first day from the moment of their application is included.

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan, authored 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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