of December 28, 2009 No. 7
About application of regulations of the penal and criminal procedure legislation concerning respect for personal liberty and immunity of advantage of the person, counteraction to tortures, violence, another to the cruel or degrading human dignity types of the address and punishment
For the purpose of the correct and uniform application in the criminal trial of regulations of the Constitution and the laws of the Republic of Kazakhstan providing personal liberty and immunity of advantage of the person, and also proper accomplishment of the obligations following from the Convention of the UN against tortures and other cruel, inhuman or degrading treatment or punishment (it is accepted by the General Assembly resolution 39/46 of December 10, 1984, the Republic of Kazakhstan joined the Convention according to the Law of the Republic of Kazakhstan of June 29, 1998 No. 247-1) (further - the Convention) and others, the international treaties ratified by the Republic of Kazakhstan, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. Draw the attention of courts that according to Article 110 of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure) the body conducting criminal procedure in case of production of legal proceeding (interrogation of person, carrying out confrontation, survey, identification, etc.) shall not only explain to the participant of process of its right, but also provide possibility of their complete implementation. At the same time special value shall be given to respect for constitutional rights of man and citizen, including on immunity of advantage of the person including protection against application of tortures, another cruel or degrading human dignity of the address. Failure to carry out of these requirements of the law is the basis for recognition of the evidence obtained in case of production of legal proceeding, inadmissible.
2. Person suspected of making of criminal offense can be detained only in the presence of the conditions, the bases and motives provided by articles 128 and 131 Codes of Criminal Procedure. During detention of person on suspicion of making of criminal offense the official of criminal prosecution authority orally announces to person, on suspicion of what making of criminal offense it is detained, explains it the right to the invitation of the defender, the right to keep silence and what told them can be used against it in court.
Without delay, but no later than three hours after the actual detention person shall be given to the official of body of inquiry, the investigator or the investigator for the solution of question of his procedural detention and creation of the protocol of detention according to requirements of article 131 Code of Criminal Procedure. The suspect is subject to survey by the doctor for establishment of general state of his health and availability of bodily harms. The conclusion of medical examination is surely attached to the protocol of detention.
It is necessary to understand restriction of freedom of the detained person as the actual detention, including freedom of travel, forced deduction in certain place, forced delivery in bodies of inquiry and investigation (capture, closing indoors, to undergo coercion somewhere or to remain on site and so on), and also any other actions significantly limiting personal liberty of the person, since the moment to within minute when the specified restrictions became real, irrespective of giving to the detainee of any procedural status or accomplishment of other formal procedures.
3. Interrogation of the suspect of all cases is drawn up by the protocol constituted according to requirements of Articles 210, of 212 and 216 Codes of Criminal Procedure. Execution of the indications received in case of interrogation of person after his actual detention in connection with suspicion of crime execution in the form of "explanation", "surrender", "interrogation as the witness" or other similar forms on this fact is inadmissible and such documents according to article 112 Code of Criminal Procedure are not subject to attaching to the criminal case file.
4. Courts, in legal proceedings and at pre-judicial stage of criminal procedure in case of verification of statements for violations of the rights to personal liberty and immunity of advantage of the person, consideration of petitions for authorization of measure of restraint in the form of detention, need to find out when person is actually detained for what time, where it contained whether the protocol and others, the circumstances connected with it was constituted.
The beginning of term of detention of person is time of his actual detention. This time with obligatory specifying of hours and minutes is reflected in the protocol of detention which is constituted by the investigator (investigator) within three hours after the actual detention of person.
The investigative judge or court, having found the fact of forgery of time of delivery of person or detention of the suspected person, that is essential elements of offense, stipulated in Article 369 Criminal Codes of Kazakhstan (further - UK), shall according to requirements of part three of article 185 Code of Criminal Procedure in the private resolution bring this circumstance to the attention of the prosecutor for check and adoption of the proceeding decision.
5. According to article 135 Code of Criminal Procedure person performing pre-judicial investigation shall notify on detention of the suspect and the place of its stay instantly from the moment of the actual detention any of full age members of his family, and in the absence of them - other relatives or close persons or to provide possibility of such notification to the suspect, including by provision to it the rights to phone call. Parents of the minor or other his legal representatives are immediately informed of detention of the minor suspect accused according to requirements of part five of article 541 Code of Criminal Procedure, and in case of their absence - close relatives.
This legal proceeding is fixed in the protocol which is signed by the investigator (investigator) and the suspect.
7. In case of detention of the suspect he shall be interrogated according to part three of article 64 Code of Criminal Procedure no later than twenty four hours from the moment of creation of the protocol of detention or application of measure of restraint when providing the right to appointment alone and confidentially before the first interrogation with the electee it or the appointed defender.
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