NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of December 11, 2020 No. 5

About authorization of secret investigative actions

For the purpose of uniform use of the provisions of the law regulating authorization of secret investigative actions by court, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations:

1. Secret investigative action is the action which is carried out during pre-judicial production for clarification of the circumstances which are subject to proof on criminal case without preliminary informing persons whose interests it concerns.

Authorization of secret investigative actions is performed according to the procedure and the cases provided by the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure).

The procedure for carrying out secret investigative actions is determined by the Rules approved by law enforcement and special state bodies in coordination with the Attorney-General of the Republic of Kazakhstan (further - the Attorney-General).

2. Production of secret investigative actions is performed on the criminal case which is in production of body of pre-judicial investigation in case of observance of conditions and availability of the bases of their carrying out for the purpose of clarification of the circumstances which are subject to proof on case in case of strict compliance with law and providing the rights and freedoms of man and citizen provided by the Constitution of the Republic of Kazakhstan (further - the Constitution).

Secret investigative actions are carried out, as a rule, in cases when information on the facts of the case cannot be obtained by means of carrying out other investigative actions.

3. Courts need to distinguish the secret investigative actions which are carried out within criminal case from the investigation and search operations (further ORM) performed according to the Law of the Republic of Kazakhstan of September 15, 1994 No. 154-XIII "About operational search activities" (further - the Law about HORDES).

The special investigation and search operations, similar to secret investigative actions (further SORM) provided by subitems 1) 2), 3), 4), 5), 6) of Item 3 of article 11 of the Law about HORDES are conducted from the sanction of the prosecutor for the purpose of, provided by subitems 1) and 2) of item 4 of article 12 of this Law.

4. According to Item 1 of article 14 of the Law about HORDES the materials received in the course of operational search activities can be used for preparation and implementation of investigative actions and carrying out ORM according to the prevention, suppression of criminal offenses, and also in the course of proof on criminal cases on condition of their check according to the provisions of the criminal procedure legislation of the Republic of Kazakhstan regulating collecting, research and assessment of proofs.

Courts should mean that according to part two of article 120 Code of Criminal Procedure, the materials received with observance of requirements of the Law about HORDES and the Law of the Republic of Kazakhstan of December 28, 2016 No. 35-VI "About counterintelligence activities" in which actual data about illegal actions are fixed are documents and can be used in criminal procedure as proofs.

5. Secret investigative actions are carried out according to the statements registered in the Unified register of pre-judicial investigations, messages or official reports for criminal offenses in the presence of one of the bases provided by part four of article 232 Code of Criminal Procedure within pre-judicial production.

Prior to pre-judicial production carrying out secret investigative actions is inadmissible. In these cases of task of criminal procedure can be provided by conducting the investigation and search operations provided by the Law about HORDES.

Secret investigative actions are carried out at the initiative of body of pre-judicial investigation (the prosecutor, the investigator or the investigator) who is directly performing criminal proceeding. Other state bodies and officials have no such rights.

According to part one of article 241 Code of Criminal Procedure of the data on production of secret investigative action and information obtained as a result of its carrying out before the end of secret investigative action are confidential and are not subject to disclosure.

6. Authorization of the secret investigative actions provided by Items with 1) on 6) of article 231 Code of Criminal Procedure is performed by the investigative judge of specialized examining court, specialized interdistrict examining court in the location of the body making pre-judicial investigation and (or) in the location of authorized division of the law enforcement or special state body performing the order of person making pre-judicial investigation or on production site of pre-judicial investigation.

Investigative judges of the district or equated to it court which is not the specialized examining court or specialized interdistrict examining court having no right to consider materials on authorization of secret investigative actions.

Authorization of prolongation of carrying out secret investigative action is made by the investigative judge authorizing carrying out secret investigative action.

In exceptional cases, in case of impossibility of authorization of prolongation of carrying out secret investigative action by the same investigative judge, authorization is performed by other investigative judge of the same court.

Legality of the secret investigative action which is carried out in cases, being urgent is checked by the investigative judge of specialized examining court (specialized interdistrict examining court) in the location of the body making pre-judicial investigation and (or) in the location of authorized division of the law enforcement or special state body performing the order of person making pre-judicial investigation or in the place of pre-judicial investigation.

Authorization of secret investigative actions concerning the judge is made by the investigative judge of specialized interdistrict examining court of the city of Nour-Sultan under the resolution of body of pre-judicial investigation approved with the Attorney-General, and concerning the Attorney-General the investigative judge of specialized interdistrict examining court of the city of Nour-Sultan under the resolution of body of pre-judicial investigation approved with the First Deputy Attorney-General.

7. Courts should observe requirements of the Items with 1) on 4) parts seven of article 232 Code of Criminal Procedure determining the exhaustive list of persons concerning whom secret investigative actions can be performed.

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