Relevant issues of judicial sanctioning of arrest and expansion of judicial control in the Republic of Kazakhstan
Table of contents: The Kazakh-American Free University Academic Journal №5 - 2013
Author: Kozhuganova Dinara, Kazakh-American Free University, Kazakhstan
In modern times of the development of the Republic of Kazakhstan as a law-governed, social and democratic state there have been conducted rather
thorough legal reforms which dealt with functions of judicial authority as
well. The issue of judicial sanctioning of arrest as a measure of restraint in
criminal proceedings is widely discussed in legal literature. According to the
international experience the institute of judicial control and arrest sanctioning
in particular is being developed dynamically in many countries. This fact shows
at the first sight the transformation of purely professional argument into socially
important problem, the problem correct solution of which is directly connected
with the development level of democracy and civil society.
Under the conditions of rather high crime rate which is currently
observed in Kazakhstan the problem of judicial protection of freedom and
immunity of suspected and accused persons will remain relevant and vexed not
only from legal but also from social and humanitarian points of view. Therefore
the analysis of the problem including historical aspects of it shows the
direction of legal policy in our country [1, p. 22].
The problem becomes even more relevant due to the necessity of
expanding sphere of application of measures of restraint which can serve as an
alternative to arrest. This was stated in “Conception of Legal Policy of the Republic of Kazakhstan during 2010-2020” which determined efficient criminal policy of
the state is impossible without appropriate model of criminal proceedings which
would correspond with generally recognized international standards of justice.
Meanwhile, analysis of law-enforcement experience demonstrated that mechanism
of sanctioning measures of restraint requires further improvement as there appear
many errors which were not regular even when choosing arrests sanctioned by a
prosecutor. The resons for these errors are as follows:
- absence of specialization of judges in accordance with sanctioning
- absence of clean-cut separation of jurisdictions of court and
- imperfection of some prescribed criminal procedures for sanctioning
measures of restraint.
Previously the necessity of increasing distance to judges
responsible for arrest sanctioning was stated by legal scholars who suggested
referring these very functions of sanctioning arrest to competency of
administrative or special investigating magistrate.
We also agree with the above opinion especially taking into account
decrease of staff size of the judiciary. We believe the released personnel can
compensate for deficit of judges who are unconcerned by the outcome of the case
and can be able to decide the issue of sanctioning measures of restraint and
further prolongation of their terms.
Legislative solution of the above stated problems will make it
possible to increase the effectiveness of the existing procedures of restraint
measures application [2, p. 17].
The process of arrest sanctioning for the period of independence of Kazakhstan have overcome substantial changes. Thus, up to 2008 arrest sanctioning had been
done by a prosecutor in compliance with the norms of criminal proceedings of
that time. However, the imperatives of our era and development of the idea of
law-governed state made the Republic of Kazakhstan (RK further) move forward.
The international experience demonstrated efficiency of judicial mechanism of
arrest sanctioning which meets the requirements of democratic society.
In the Republic of Kazakhstan judicial sanctioning started its
development after the Law of the Republic of Kazakhstan No.254-III “On making
amendments and additions to the Constitution of RK” dated May 21, 2007 came
into force and put and end to the discussion of interpretation of Paragraph 2
of Article 16 of the Constitution of RK which concerns possibility of transfer
of arrest sanctioning and imprisonment right to court. The new version of the
noticed Article unambiguously stated the following: “Arrest and imprisonment
are permitted only in cases provided for by statute or law only together with
sanction of court and right of defense of the accused. Without the court
sanction a person may be apprehended during the period equal of less than
seventy two hours”. This constitutional provision defined the court to be the
only entity responsible for sanctioning within all stages of legal proceedings
and consequently excluding a prosecutor as an entity having this right in
prejudicial stages of legal proceedings. Due to introduction of this constitutional
provision the national legislation was brought in compliance with Article 9 of
International Treaty on Civil and Political Rights ratified in 2005 in Kazakhstan.
The right of sanctioning given to courts resulted not only in making
amendments and additions to Criminal Procedures Code of the Republic of Kazakhstan (CPC further) but also in taking organizational measures which include
solution of the problem about defining the court, jurisdiction of which would
cover an arrest sanctioning. After further discussions of the issue a general
jurisdiction district court for criminal trails became responsible for
sanctioning an arrest, a house arrest, and prolongation of the terms [3, p.
Nevertheless, the discussions on this issue still exist. Further
development of the idea of judicial sanctioning was marked with enactment of
the Law of RK “On making amendments and addition to some legislative acts dealing
with measures of restraint in the form of an arrest, a house arrest” dated
August 30, 2008. The ground for this solution of the problem of sanctioning is
related to ratification of a number of international legal documents. One of
these documents is International Treaty on Civil and Political Rights according
to which every person arrested or apprehended against criminal accusation must
be brought without a delay to a judge or another person possessing judicial
power according to the law. The trial must be held within reasonable period,
However Temiraliyev correctly declares that provisions of other
international legal documents dealing with the issue demonstrate there is
neither uniform theory of an arrest sanctioning, nor uniform international
standards [4, p. 61].
There is no need in deep theoretical research of these discussions
we should draw our attention to the application of this measure of restraint.
When the institution of judicial sanctioning of an arrest was introduced the
practical mechanism of application of this measure of restraint was changed but
the participation of a prosecutor was not ultimately excluded. This seems to be
reasonable in our opinion. At the same time transfer of this function to courts
makes it possible for them to select measures of restraint for an accused (suspected)
person in the form of arrest within open procedural order with participation of
both defense and prosecution. This allows guaranteeing respect to
constitutional rights of citizens even on the sage of prejudicial inquiry. Put
it another way, in this case the most important principles of legal proceedings
– openness, transparency, and contentiousness - are involved. An arrest
sanctioning is held within the framework of court session which means the
sanctioning process is open to public. These amendments fully correspond to
Thus, the court’s sanction declares an arrest to be used only for
the defendant suspected in conduction of deliberate crimes which according to
the legislation involve custodial sentence for a period of over two years and
suspected in conduction of negligent crimes which involve custodial sentence
for a period of over three years. As an exception the measure of restraint can
be applied to the defendant suspected in crimes which according to the
legislation involve custodial sentence for a period of less than 2 years if: 1)
he/she has no permanent place for living within the territory of the Republic
of Kazakhstan; 2) his/her identity is not proved; 3) he/she infringed the
measure of restraint which was imposed earlier; 4) he/ she endeavored to escape
from a prosecuting body or a court [5, p. 29].
Within the above stated it seems appropriate to mention that legal
proceedings concerning criminal cases are aimed at solving the problems
required by criminal procedure law (Article 8 of CPC). They are quick and
complete crime detection, accusation and criminal prosecution of the persons
who committed a crime, justified lawsuit, correct application of criminal legislation,
defense against unsubstantiated accusations and denouncements, vindication,
consolidation of legality and rule of law, prevention of crimes and formation
of respect for the law.
We believe that initial sanctioning of an arrest for a short term of
detention and further court investigation of motions concerning the term
prolongation after termination of the previous one in a short period of time as
well would make it possible to identify real activities done during the investigation,
monitor efficiency of investigating authorities in order to avoid red-tape and
as a result prevent long-term prejudicial arrest of a defendant the reason for
which is inefficient work of investigating authorities.
In our opinion the point of view of R. Yurchenko is rather interesting.
She has suggestions on improvement of crime procedures legislation and in order
to reduce the term of detention of a person who has not been accused yet until
trial. It seems to be significant to state in Part 1 of Article 152 of CPC that
a court may sanction 10 days and nights arrest and the term may be prolonged by
motion of the body conducting the crimrinal procedure up to 20, 30, and 40 days
and nights but no more than 2 months all together. Further prolongation of the
term is performed in accordance with corresponding parts of Article 153 of CPC.
It is necessary to add provisions on causes for prolongation of an arrest term
(and not in view of in finished investigation) to the Article. There should
also be stated that motions aimed at arrest extension should contain reasons
provided for by law for expansions of arrest.
In order not to make prejudicial detention of a person in accordance
with assumption of innocence long, Article 153 of CPC should state that court
sanctions arrest during the period which is defined by it in compliance with
the presented data. The period may be 10, 20, 30, 40 days and nights and not 2
months right off .
The legislation should state that all data dealing with judicial
sanctioning of a measure of restraint including motions, decrees of a
prosecutor, court records, court decisions, data on identity of the accused,
etc. The documents should be attached to the dossier of the case as they can be
important not only for choosing and changing of a measure of restraint on the
stage of adjudication of a case but also for ruling judgment of conviction.
According to the international experience currently judicial
sanctioning of an arrest is being practiced in over 100 countries around the
world, in such places as Europe, Asia, Africa, and South America. The main
provisions concerning a person’s rights in arrest and the rights which define
processual status of the accused are among constitutional principles in the USA. An arrest warrant in the USA is issued exceptionally by judge, if there is no an
arrest warrant the suspected person may be under arrest for no more than 36
hours while in RK a person suspected in commitment of a crime may be under
arrest without a warrant for 72 hours.
The experience of Germany demonstrates an arrest warrant is a
serious intrusion into personal liberties of the accused who is considered to
be innocent during investigations and who as any other citizen has the
principal right of personal liberty (Article 2, Paragraph 2, Subparagraph 2 of
Constitution). This particular right can be interfered according to the court
decision only. For many years (except the period of 1933-1945 of Nazi
dictatorship and conditions of German Democratic Republic) it has been firm
principle of Germany. Based on the severe experience of Nazi dictatorship this
right was described in details and then added to the Constitution of Federal
Republic of Germany. Thus, according to Article 104 Paragraph 2 only judge may
make a decision on justifiableness and duration of deprivation of liberty. In
case of any other deprivation of liberty a person should immediately endevour
to obtain the court judgment. Police have no right to keep a person apprehended
longer than till the end of the day. In accordance with Paragraph 3 any person
temporally apprehended on suspicion of punishable offence must be brought to a
judge during the day of apprehension and the judge must inform the person about
the reasons for his/her apprehension, examine him/her and allow him/ her to
defense himself/herself. The judge must immediately issue a written direction
to arrest with specified causes for that or to release the person.
So called exclusive jurisdiction of a judge which covers other
invasions of main rights during investigation (search, inventory of property,
control of telephone conversations, etc.) in the same way institutionally
excepts possibility of a prosecutor’s issuing of direction to arrest. The
sphere of competency of a prosecutor is limited with short-term detention in
the form of primary apprehension.
Direction for incarceration may be issued only after all the
stipulations (§112 of Criminal Proceedings Code) are fulfilled as follows:
• sound suspicion of crime commitment, i.e. there must be high
probability that the accused committed an offence which he/she is accused with;
• sound reason for arrest;
Furthermore, an arrest warrant issuing is not legal if it has
nothing to do with the meaning of the case and the expected punishment. The
reasons for arrest are sound if: the accused is on the run and not catches;
there exist possibility that he/she can elude criminal proceedings (possibility
of break-out); based on behavior of the accused there exist concern that he/she
can destroy, change or hide evidences or he/she can influence witnesses or co-accused,
or being free can flee from prosecution and court or can interfere establishment
In case of high crimes (e.g. murder, participation in terroristic
groups, etc.) an arrest warrant is legal without cause of arrest (§112, section
2). This provision according to Federal constitutional court is risky from
constitutional point of view and because of that in order to limit it there is
the following interpretation: an arrest warrant in these cases is possible
(only) if there is a possibility of break-out and the accused can flee from
prosecution and court or can interfere establishment of truth.
Application for an arrest warrant is to be handed by a prosecutor to
a judge of the local area court (investigating magistrate; §125 of Criminal
Proceedings Code). German Criminal Proceedings Code unlike Kazakhstani Criminal
Proceedings Code does not require 3 stages of legal proceedings (police –
prosecution - court) with strictly stated terms (quantity of hours is stated in
the document) and so it takes less time.
According to §128 of Criminal Proceedings Code of Germany the
accused should be brought to a judge immediately not later than at the end of
the day following the day of apprehension. For investigation (especially
interrogation) which is necessary to substantiate application for an arrest
warrant prosecution and police have time which starts from the moment of
pre-apprehension and lasts up to 48 hours minus 1 minute. That is why in severe
or hard cases police or prosecution will perform pre-apprehension of the
accused in/ after midnight in order to have all the necessary time for
To avoid unnecessary delays every district judge should have
judicial alert office; it ensures availability of a judge (in order to bring an
accused to him/her) anytime, even at night. Supreme Constitutional Court of
Germany strictly monitors this obligation (requirement to accelerate cases
involving arrest) [7, p. 52].
Introduction of judicial sanctioning of arrest is a great
achievement of legal reform in Kazakhstan and is evidence that the national
legislation becomes closer to international standards of fair criminal
proceedings. Application of this practice establishes conditions for further
development of judicial control of preliminary investigation and improves
mechanisms of human rights protection within legal proceedings.
Thus, according to international laws every apprehended person has
right to stand his/ her own trial for assessment of his/her arrest validity.
The main function of court is this particular one and also choosing the form of
criminal proceedings aimed at good behavior.
It also should be taken into consideration that the international
legislation unlike the tradition taken from Soviet times uses the term ‘arrest’
as it was stated above to define apprehension in case of suspicions in
commitment of an offence no matter criminal or administrative. Therefore,
Habeas Corpus guarantee should be applied to all the situations of deprivation
of liberty unexceptionally.
Nevertheless, comparison of above mentioned standards of Habeas
Corpus application and proceedings of judicial arrest sanctioning stipulated by
CRC of RK demonstrates inconsistency of Kazakhstani proceedings and generally accepted
international legislation interpretation of the term. According to Article 132
of CPC investigating body has a right to keep a suspected person apprehended up
to 72 hours. Control of apprehension validity remains within sphere of responsibility
of prosecution as court is not authorized to analyze validity of such an apprehension
itself. The court during the process of review of a prosecutor’s decree on
supporting examining official’s motion to arrest may only sanction or refuse
detention (Article 150 CPC of RK). Thus, the court serves as an entity which
merely agrees or disagrees with prosecution motions on arrest of a suspected or
accused person. When the investigating agencies decide not deprive a suspected
person’s liberty and put him/her under restraint having nothing to do with
detention the court may be excluded from the process of detention validity
According to protection of human rights Kazakhstani judicial arrest
sanctioning is imperfect because it does not ensure main purpose of Habeas
Corpus, i.e. validity assessment for deprivation of liberty by state authority.
Thereby there is a necessity in establishing a separate specialized
judiciary dealing with proceedings of choosing a measure of restraint in the
form of an arrest and sanctioning other investigative actions affecting
principal constitutional rights of a person (investigating magistrates). This
surely will allow to avoid any prejudgment during proceedings and remove
additional burden from the judges. It is recommended to transfer right of sactioning
such investigative actions as private premises search, audio interception and
record of conversations and others which affect constitutional rights from
prosecution to the court.
It is recommended to amend Articles 290-2 and 290-3 of CPC in order
to make it possible to grant a right of sanctions of measures of restraint
concerning a defendant to specialized inter-district juvenile courts, military
criminal courts and millitarygorrizon courts. It is essential to note that
order on application for a measure of restraint sanctioning in the forms of an
arrest or a house arrest should be accompanied by the data proving the causes
stated in the order to put under restraint (absence of data on identity of the
accused, absence of permanent place of residence of the accused within the area
of RK, and available data on possible escape of the accused, further criminal
activities, or barring impartial investigation). Also there should be proved
that lesser sentence will not prevent ensuing of consequences stated in Article
139 of CPC. The courts should fairly judge submissions of the motion on an
arrest warrants with a view to find out real facts legitimating application of
a measure of restraint in the form of an arrest.
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Table of contents: The Kazakh-American Free University Academic Journal №5 - 2013