of January 24, 2020 No. 1
About some questions of authorization of measures of restraint
For the purpose of ensuring uniformity of court practice of authorization of measures of restraint the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations.
1. In case of production on criminal cases measures of restraint in the form of detention, house arrest, pledge are subject to authorization by court.
Consideration of petitions for authorization of measure of restraint is at stage of pre-judicial production within the competence of investigative judges. In case of submission by the parties of the claim and (or) the petition review of resolutions of the investigative judge on authorization of measure of restraint is performed by the judge of the relevant regional or equated to it court.
Questions of election, cancellation, change, prolongation of measure of restraint at judicial stages are within the competence of the court considering criminal case.
2. In case of decision making about authorization of measure of restraint, and also prolongation of its term the investigative judge needs to provide observance of the rights of the suspect, person accused guaranteed by article 16 of the Constitution of the Republic of Kazakhstan (further - the Constitution), proclaimed article 9 of the International Covenant on Civil and Political Rights (New York, on December 16, 1966, is ratified by the Law of the Republic of Kazakhstan of November 28, 2005 No. 91, became effective for the Republic of Kazakhstan on April 24, 2006) and provided by regulations of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure).
3. The decision on authorization of measure of restraint in the form of detention is made by the investigative judge on production site of pre-judicial investigation or in the place of detention of the suspect, and in the cases provided by Chapter 57 of the Code of Criminal Procedure in the location of the body which took the petition to court.
Further prolongation of term of detention is subject to consideration by the investigative judge at the venue of pre-judicial investigation.
4. Following the results of consideration of the petition for authorization of measure of restraint in the form of detention of the suspect, the person accused the investigative judge takes out one of the resolutions provided by part seven of article 148 Code of Criminal Procedure.
According to Item 3) parts seven of article 148 Code of Criminal Procedure in case of refusal in authorization of detention the investigative judge has the right to choose other measure of restraint provided by part one of article 137 Code of Criminal Procedure. In the absence of the bases for election of other measure of restraint the investigative judge issues the decree on refusal in authorization of detention.
5. The bases for application of measure of restraint are such actual circumstances which testify to real possibility of making by the suspect, the person accused of the actions listed in part one of article 136 Code of Criminal Procedure. In the absence of such bases the measure of restraint cannot be chosen.
Besides, the measure of restraint is chosen taking into account the circumstances provided by part one of article 138 Code of Criminal Procedure.
Courts should consider that according to part two of article 138 Code of Criminal Procedure weight of the committed crime cannot be the single basis for election of measure of restraint in the form of detention, except for crimes which list is provided in part two of article 136 Code of Criminal Procedure.
6. Application of measure of restraint in the form of detention concerning person, the suspect accused of making of the criminal offenses listed in part three of article 136 Code of Criminal Procedure is not allowed, except as specified, when this person is suspected of crime execution as a part of organized group or criminal society (the criminal organization) either tried to disappear or disappeared from criminal prosecution authorities or court.
If person is suspected, accused of making not only crimes in the field of economic activity, but also other crime provided by the Special part of the Criminal Code of Kazakhstan (further - UK) which is not excluding content application into custody, the judge of the bases having the right in the presence to that to choose this type of measure of restraint.
7. According to part one of article 147 Code of Criminal Procedure detention of the suspect, person accused, defendant of making of crimes of small and average weight for which the law prescribes custodial sanction for the term of less than five years can be applied in exceptional cases in the presence of the circumstances specified in Items with 1) on 7) to part one of article 147 Code of Criminal Procedure.
At the same time it is necessary to consider the following:
availability of the permanent residence in other administrative and territorial unit other than the place of crime execution, it is impossible to regard as lack of the permanent residence in the territory of the Republic of Kazakhstan;
not identification is understood as lack of documents which list is provided in the Note to article 300 Code of Criminal Procedure;
about violation of earlier chosen measure of restraint or measure of procedural coercion by body of pre-judicial investigation the information testimonial of it shall be provided, for example, being under recognizance not to leave and proper conduct, the suspect, the person accused without valid excuse was not on challenge of the body conducting criminal procedure changed the residence without notice of body of pre-judicial investigation, etc.;
or vessels can demonstrate that person can disappear from criminal prosecution authority, for example, the confirmed facts of sale of the property belonging to it on the property right, acquisitions of tickets for the purpose of departure out of limits of the residence and the country, removal from registration accounting at the place of residence, removal from military accounting, availability of nationality of foreign state, absence in the territory of the Republic of Kazakhstan of the permanent residence, work, family, availability abroad of source of the income, financial (property) resources, etc.;
suspicion (accusation) of person of crime execution as a part of criminal group or criminal society shall be confirmed by specific proofs of all signs of these crimes established by the corresponding Items of article 3 UK and Item 11 of the normative resolution of the Supreme Court of the Republic of Kazakhstan of June 21, 2001 No. 2 "About some questions of application by courts of the legislation on responsibility for gangsterism and other criminal offenses made in partnership";
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