A lawyer in Almaty, upon the issuance by an investigating judge of a decision to authorize a preventive measure in the form of detention, bail is not established in the following cases:
When an investigating judge issues a decision to authorize a preventive measure in the form of detention, bail is not established in cases of suspicion or accusation of a person of committing crimes that led to the death of the victim.;
suspicions, accusations of a person committing a crime as part of a criminal group, as well as other terrorist and/or extremist crimes;
there are sufficient grounds to believe that the suspect or the accused will obstruct the proceedings or hide from the investigation and the court;
violations of the previously chosen preventive measure in the form of bail by the suspect or the accused. When determining the amount of bail, the judge must be guided by article 145 of the draft CPC, according to which:
Bail consists in depositing funds by the suspect, the accused, or another person into a court deposit to ensure that the suspect or the accused fulfills their duties to appear before the person conducting the pre-trial investigation, the prosecutor, or the court upon their summons.
Other valuables, movable and immovable property, which is being seized, may be accepted as collateral.
It is the responsibility of the pledgor to prove the value of the pledge and the absence of encumbrances.
Bail is not applied to persons suspected of committing particularly serious crimes.
The amount of the bail is determined by the investigating judge, taking into account: - the severity of the suspicion, - the identity of the suspect, the accused, - the nature of the criminal act, - the property status of the pledgor, - the bail may not be less than: one hundred times the monthly calculation index – if suspected of committing a minor crime; three hundred times the monthly calculation index – if suspected of committing a reckless crimes of moderate severity; five hundred times the monthly calculation index – upon suspicion of committing an intentional crime of moderate severity; a thousand times the monthly calculation index – on suspicion of committing a serious crime.
The Criminal Procedure Law (Article 145 of the draft CPC) provides for a number of rules that must be followed in connection with the application of bail. It is necessary to determine whether they relate to the investigating judge if, in the decision authorizing a preventive measure in the form of detention, he indicates the possibility of bail and bail has been paid.
The first rule is that the subject of the pledge is immediately returned to the pledgor if the suspect or the accused has not violated the duties assigned to him, but a stricter measure of restraint has been applied to the suspect or the accused, a verdict or a decision has been passed to terminate the criminal proceedings. It seems that the decision to return the bail when applying a stricter measure of restraint is decided by the body conducting the criminal process. When passing a verdict or issuing a resolution definitively resolving a criminal case, respectively, the court or the criminal prosecution body simultaneously decides the fate of the collateral, i.e. not the investigating judge. The second rule states that in cases where the pledgor is a suspect or an accused, the court, considering the fate of the pledge in the presence of a civil claim, procedural costs and the need for other property penalties, may, at the request of the prosecutor, decide to foreclose on the subject of the pledge or part of it. Foreclosure on the subject of a pledge made by a pledgor who is not a suspect or an accused person may be carried out only with his consent.
This decision is made by the court, which resolves the case on its merits. The third rule concerns the consideration of a written request from the person who posted bail for the suspect or accused, stating that he is unable to further ensure that the suspect or accused fulfills his duties to appear before the body conducting the criminal process. This issue is also considered by the body conducting the criminal process at the pre-trial and judicial stages, i.e. not by the investigating judge. The subject of the bail is subject to immediate return if the suspect or the accused has not violated these duties, and if necessary, another preventive measure is applied against him. And only the following fourth rule, stipulated by part 11 of Article 145 of the draft CPC, applies to the investigating judge. If the suspect or the accused fails to fulfill the obligations secured by the bail without valid reasons, the prosecutor sends the investigating judge a request for the bail to be transferred to the state revenue. In accordance with this provision of the law, it can be concluded that it is the responsibility of the prosecutor to prove the facts of non-fulfillment by the suspect or the accused of obligations secured by bail. He must also provide evidence that non-fulfillment of obligations is not related to valid reasons.
The court considers the petition in a court session with the notification of interested parties (the pledgor, the suspect, the accused, his defender, legal representative, prosecutor). At the request of the parties, if necessary, persons conducting criminal proceedings and persons who know information relevant to the proper resolution of the petition may be questioned. Having considered the petition, the investigating judge makes an appropriate decision. In part 11 of Article 145 of the draft CPC, it is stated that the judge's decision may be appealed by the pledgor to a higher court in accordance with Article 107 of this Code. By this, the legislator seems to be predicting that the investigating judge will issue a decision solely on satisfying the prosecutor's request and on applying the bail to the state's income. But the investigating judge may not grant such a request. For example, at a court hearing it turned out that the suspect or the accused did not allow violations of obligations, or allowed them, but for a good reason (for example, he did not receive a notice of attendance, was ill, a combination of family and other circumstances). There may also be a case when the pledgor promptly wrote to the body conducting the criminal process stating that he was unable to further ensure that the suspect or accused performed their duties to appear before the body conducting the criminal process, and at the same time, at the time the pledgor filed this appeal, the suspect or accused did not violate their duties. However, this request of the pledgor was not considered in a timely manner, and they committed violations during this period, but before the issue of the written request of the pledgor for the return of the collateral was resolved. It is unlikely that in all these cases there can be an unambiguous decision of the investigating judge to satisfy the prosecutor's request for bail to be transferred to the state's income. Upon the return of the pledged item, the amount spent on ensuring the security of the pledge is collected from the pledgor. Moreover, the legislator does not make exceptions for cases when the pledge is returned to the pledgor even upon termination of the case on rehabilitative grounds.
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