Commentary on Article 160. Procedure for Imposing a Monetary Penalty of the Criminal Procedure Code of the Republic of Kazakhstan
- 1. In the cases specified in Article 159 of this Code, a monetary penalty shall be imposed by the court.
- 2. If the relevant violation is committed during a court hearing, the monetary penalty shall be imposed by the court at the court hearing at which the violation was established, by means of a court ruling.
- 3. If the relevant violation is committed during pre-trial proceedings, the person conducting the pre-trial investigation or the prosecutor shall draw up a report on the violation, which shall be forwarded to the investigating judge, who shall consider it within twenty-four hours from the time it is received by the court. The person against whom a monetary penalty may be imposed shall be summoned to the court hearing. The offender's failure to appear without valid reasons shall not prevent consideration of the report.
- 4. Following consideration of the report, the judge shall issue a ruling imposing a monetary penalty in an amount of up to fifty monthly calculation indices or refusing to impose it. A copy of the ruling shall be sent to the person who drew up the report and to the person against whom the monetary penalty has been imposed.
- 5. When imposing a monetary penalty, the court shall have the right to defer or grant payment by instalments of the execution of the ruling for a period of up to three months.
- The article under commentary, by establishing another measure of procedural coercion, namely a monetary penalty, thereby affirms an independent type of criminal procedural liability in criminal proceedings, which also ensures the fulfilment of their tasks and the achievement of their objectives.
- As indicated above, the law grants the authority to impose a monetary penalty exclusively to the investigating judge during the pre-trial investigation or to the court during the adjudication of the case on its merits (Part 1 of Article 160, Article 346 of the CPC).
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- The nature of the duties and the circumstances in which they arise are set out in the provisions of Articles 71, 78, 80, 81, 82, 90, 142, 144, 156 and 165 of the CPC.
- A monetary penalty may be imposed on participants in a court hearing if they violate courtroom order or demonstrate manifest disrespect for the court (Part 2 of Article 160 of the CPC).
- Thus, pursuant to Parts 1, 3 and 4 of Article 346 of the CPC, in the event of a violation of courtroom order, failure to comply with the instructions of the presiding judge, as well as the commission of other acts (omissions) that clearly demonstrate disrespect for the court, the presiding judge shall have the right to remove the person from the courtroom or declare that an act of disrespect for the court has been established in cases that do not contain elements of a criminal offence, and to impose a monetary penalty on the guilty person in accordance with the procedure provided for in Article 160 of the CPC. The court shall issue a ruling on the removal of a participant in the proceedings from the courtroom and the imposition of a monetary penalty.
- A monetary penalty may also be imposed by the court on persons present in the courtroom who are not participants in the proceedings. If they violate courtroom order, they shall be removed from the courtroom by order of the presiding judge. In addition, the court may impose a monetary penalty on them.
- A monetary penalty may not be imposed during a court hearing on the defendant or on a lawyer participating as defence counsel. A monetary penalty shall likewise not be imposed on a lawyer acting as a representative of the victim, private prosecutor, civil claimant or civil defendant.
- Furthermore, a monetary penalty shall not be imposed on the prosecutor (Article 159 of the CPC).
- Parts 2–3 of Article 160 of the CPC distinguish between the procedures for imposing a monetary penalty by the court and by the investigating judge.
- The establishment of a violation of courtroom order and manifest disrespect for the court in the courtroom shall be recorded in the minutes of the court hearing, and the court, as indicated above, shall impose a monetary penalty by issuing a ruling at that same hearing.
- In turn, failure to perform the procedural duties provided for in Articles 71, 78, 80–82, 90, 142, 144, 156 and 165 of the CPC shall be recorded in a report drawn up by the pre-trial investigation body or the prosecutor. The report shall serve as the basis for the investigating judge to conduct a court hearing under a simplified procedure. The court hearing shall be held within twenty-four hours from the time the report is received by the court. Only the person who failed to perform the procedural duties shall be summoned to the court hearing. Their absence for unjustifiable reasons shall not constitute an obstacle to holding the court hearing (Part 3 of Article 160 of the CPC).
- Following the court hearing, the investigating judge shall issue a ruling imposing a monetary penalty or refusing to impose one, a copy of which shall be sent to the person who drew up the report and to the person against whom the monetary penalty has been imposed (Part 4 of Article 160 of the CPC).
- Taking into account the amount of the monetary penalty, calculated as a multiple of the monthly calculation index (up to 50 MCI), the judge shall have the right to defer or grant payment by instalments of the execution of the ruling for a period of up to three months (Part 5 of Article 160 of the CPC).
- Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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