Supervision over the Agencies Effectuating Inquiry and Pre-trial Investigation;
Assignment: Read Law on Procuracy, Chapter 2, Article 11; Instruction on Supervision of Legality of Pre-trial Investigation approved by Procurator Ganeral on March 30, 2015 No.50; Vinokurov Textbook, Chapter 10, pages 212-248;
Old Law on Procuracy (1995):
Article 37. Content and Subject of Supervision.
Procurator performs supervision over legality of acts and actions of inquiry bodies and investigation bodies, over compliance with the order of response to application and notifications about the crime committed and their investigation established by the law.
Article 38. Authorities of Procurator to Provide for Legality of Pre-Trial Investigation.
- When conducting supervision over legality of pre-trial investigation, procurator:
1) receives from bodies of preliminary investigation criminal cases, documents, materials and other information about criminal violations, about operative-search activity, unofficial investigative actions, pre-trial investigation for further inspection;
2) inspects compliance with legal requirements at receiving, registration and response to the applications and notifications about the committed or prepared crimes;
3) supports or refuses to support motions of criminal investigation bodies to investigative judge to grant sanction for arrest or house arrest of a suspect/indicted, to grant sanction of bail;
4) starts or conducts when necessary pre-trial investigation, gives instructions on pre-trial investigation;
5) annuls resolutions of persons who conduct pre-trial investigation if they do not conform to the law;
6) raises the issue on responsibility of officials who violated rights of participants of the criminal procedure or other citizens or used illegal methods of investigation;
7) returns criminal cases for additional investigation or terminated criminal case in whole volume or with regard to a certain person when preliminary investigation was not fully completed or when violation of law was committed;
8) confirms indictment act, protocol on criminal mis-demeanor, transfers criminal case to the court for trial;
9) when necessary, demands from heads of investigative bodies and bodies of inquiry supervision over subordinates with the aim of eliminating of law violations and facilitating process of speedy solving of all the crimes;
10) responds to the complaints on actions or non-actions of persons who conduct pre-trial investigation or heads of bodies of pre-trial investigation;
11) supervises conformance with the established by the law order and conditions of detention under arrest of individuals who were placed under this measure of restraint;
12) performs other duties and authorities granted by the law.
- All instructions of procurator that were given within his authorities are mandatory for the persons who conduct pre-trial investigation.
Criminal Procedure Code:
Article 193. Authorities of Procurator
- When performing criminal prosecution and supervision over legality of pre-trial investigating, the procurator shall:
1) register statements about crimes, transfers them to the bodies of criminal prosecution or takes them for pre-trial investigation;
2) transfers statements about crimes and materials attached thereto from one body of criminal prosecution to another body in accordance with jurisdiction;
3) perform supervision over legality of registration of statements and information about crimes;
4) have the right to participate in the inspection of the place of the event, as well as to perform other acts within his authority in accordance with this Code;
5) issue written instructions on the performance of investigative acts;
6) in cases provided for by the Code, sanction acts of the officials, who perform preliminary investigation;
7) in cases and through procedure provided for by the Code, give written instruction on the attachment of the results of unofficial investigative activities to the pre-trial investigation materials;
8) submit proposal to receive approval for holding of the person, who has immunity from criminal prosecution, criminally liable;
9) receive criminal cases, documents, materials and other information on the committed crimes, the course of the operational search activities including unofficial investigative actions, transfers criminal cases that had pre-trial investigation interrupted for further investigation;
10) abolish unlawful resolutions of the interrogating officer and investigator, as well as of the heads of the body of inquiry and investigation department;
11) return the criminal case for additional investigation or terminate it in its full volume or in respect of specific persons;
12) withdraw a criminal case from the body of preliminary investigation and transfer it to the other body of preliminary investigation; in exceptional cases for the purposes of ensuring the fullness and the objectiveness of the investigation, pursuant to a written petition of the body of criminal prosecution or pursuant to his own initiative, transfer a case from he body of preliminary investigation to another, or assume it to his performance and investigate it irrespective of the jurisdiction established by this Code;
13) in cases and through procedure provided for by the Code, extend periods of pre-trial investigation in cases, also in cases provided by parts seven and eight of Article 192 of the Code, defines the term of pre-trial investigation;
14) participates in hearings by investigative judge in cases provided by the Code;
15) review the compliance with the procedure established by legislation, as well as conditions for the detention of persons in respect of whom arrest is selected as a measure of restraint;
16) approve indictment or protocol on criminal action, transfer criminal case to the court for trial;
17) approve resolution of an investigative body on termination of pre-trial investigation in accordance with the Code;
18) organise investigative actions in accordance with a decree of the court that are attached to the materials of the trial on motion of procurator;
19) initiate and enter into plea bargain agreements;
20) exercise other powers provided for by law.
- Authorities of procurators on the stage of pre-trial investigation are differentiated by the Procurator General of RK.
Heads of procuracies have exclusive authority to:
1) enter into procedural agreement on cooperation;
2) annul illegal resolutions of investigator, inquiry officer, body of inquiry, as well as resolutions and orders of heads of investigative bodies and bodies of inquiry, and a subordinate procurator;
3) take a criminal case from the person who conducts pre-trial investigation or from the body of pre-trial investigation and transfer it to another person or body for continuing pre-trial investigation;
4) submits request for receiving permission for criminal prosecution of persons who have immunity or privileges with regard to criminal prosecution;
5) prolong the term of pre-trial investigation;
6) respond to complaints on actions and decisions of investigator, inquiry officer, body of inquiry, head of investigative body or body of inquiry, as well as subordinate procurator;
7) to suspend investigator, inquiry officer from pre-trial investigation of criminal case when he admitted violations of law;
8) confirms resolution of procedural prosecutor to return criminal case for additional investigation;
Authorities of heads of procuracies listed in items 2), 3), 6), 7) and 8) of this part may be performed by the heads of departments of General Procuracy, procuracies of regions and equivalent procuracies, that conduct supervision over legality of pre-trial stage of criminal process.
- Head of Procuracy has right to appoint a procurator (procedural procurator ) to perform supervision of a concrete criminal case.
Procedural procurator carries out supervision of pre-trial investigation from its beginning and acts as prosecutor in the trial on that case as public prosecutor.
Procedural procurator should not be replaced except for the cases provided by the normative acts of Procurator General when head of procuracy makes decision to change him with another procurator.
- The procurator’s instructions to the investigator, the head of the investigative department, the body of inquiry, the head of the body of inquiry and the interrogating officer, which are issued in accordance with the procedure provided for by this Code, shall be obligatory, but they may be appealed to the superior procurator. The appeal of the received instructions to the superior procurator shall not suspend their implementation.
Definition of Procuracy Supervision Over Bodies of Inquiry and Preliminary Investigation:
Supervision over pre-trial investigation is part of activity of procuracy that consists of organisation of permanent and constant supervision over inquiry and preliminary investigation with the use of powerful authorities that are granted to the prosecutor by the criminal procedure law with the objective of achieving legality of the pre-trial investigative process and realisation of the purpose of criminal procedure, so that no act or action of inquiry officer or investigator violates the law.
This supervision of procuracy is carried to ensure that
- no crime is left unsolved;
- person who committed a crime is brought to justice;
- no person is prosecuted for the crimes he did not commit;
- no person is unlawfully deprived of his rights and freedoms;
- all procedural forms, including order of pre-trial investigation, its terms, rights of participants, are complied with during pre-trial investigation;
- pre-trial investigation is aimed at full and objective investigation of all the circumstances of the criminal case, so that both accusing and defending facts are discovered, both worsening and lightening circumstances are defined;
- reasons of crimes committed and conditions that facilitated commission of the crimes are established, measures to eliminate them are taken.
The following are the bodies of preliminary investigation:
1) procuracy investigators;
2) investigators of internal affairs departments;
2) investigators of national security committee;
3) investigators of anti-corruption service;
4) investigators of economical crimes service;
The following shall be the bodies of inquiry:
1) the bodies of internal affairs;
2) the bodies of national security;
3) anti-corruption service;
4) economical crimes service;
5) the bodies of military police;
6) bodies of frontier services;
7) commanders of military units, formations, heads of military institutions and garrisons;
8) heads of diplomatic representations, consular institutions and plenipotentiary representations of the Republic of Kazakhstan on the cases of crimes committed by their employees in the country of their stay;
9) service of state security.
Main Forms of Supervision:
- Supervision over registration of pre-trial investigations— all pre-trial investigations and urgent investigative acts are reported to procurator within 24 hours; Unified Registrar of Pre-Trial Investigations is checked on regular basis;
- Supervision over starting pre-trial investigation— procurator defines investigative jurisdiction, transfers criminal cases according to jurisdictions, makes decision on investigative groups including group of procuracy investigators, combines or splits criminal cases;
- Participation in inquiry or preliminary investigation— procurator has right to personally carry out investigative actions, he gives sanctions, supports petitions for sanctions of court, participates in consideration of petitions by investigative judge, gives instructions on taking investigative actions or orders to eliminate violations of procedural law to inquiry officer or investigator;
- Makes decision on recusations; Makes decision on suspension of an inquiry officer or an investigator due to violations of the criminal procedure laws;
- Makes decision to transfer a criminal case at any stage from one inquiry officer or investigator to another, from one inquiry or investigative body to another;
- Over-rules decisions of inquiry/investigation or inferior procurator;
- Prolongs term of pre-trial investigation;
- Enters into plea bargains (procedural agreements);
- Confirms decisions of pre-trial investigation officials to terminate or suspend pre-trial investigations; approves resolutions on termination of prosecution;
- Confirms indictment acts or protocols on commitment of minor criminal offences; Confirms resolutions on imposing mandatory measures of medical treatment; Makes decision on transfer of criminal case to court for trial;
- Makes decision to return criminal case for additional investigation;
- Other forms in accordance with authorities provided by criminal procedure law.