Commentary on Article 142. Personal Suretyship of the Criminal Procedure Code of the Republic of Kazakhstan
- 1. Personal suretyship consists of trusted persons assuming a written obligation guaranteeing the proper conduct of the suspect or accused and their appearance when summoned by the authority conducting the criminal proceedings. The number of sureties may not be fewer than two.
- 2. The selection of personal suretyship as a preventive measure is permissible only upon the written motion of the surety and with the consent of the person in respect of whom the suretyship is provided.
- 3. The surety provides a written undertaking of personal suretyship, in which the surety confirms that the nature of the suspicion against the person in respect of whom the suretyship is provided, as well as the surety's liability, consisting of the imposition of a monetary penalty in the event that the suspect or accused commits actions which this preventive measure is intended to prevent, have been explained to them.
- 4. The surety has the right to withdraw the suretyship at any time during the criminal proceedings. In this case, within forty-eight hours from the moment of withdrawal, another preventive measure must be selected in respect of the suspect or accused, taking into account the requirements of Part One of Article 136 of this Code.
- 5. If the suspect or accused commits actions which the personal suretyship was intended to prevent, the court may impose a monetary penalty on each surety in accordance with the procedure provided for in Article 160 of this Code.
- 6. Unlike the written undertaking not to leave the place of residence and to maintain proper conduct, personal suretyship is a preventive measure, the performance of which is shared not only by the suspect or accused but also by the sureties. This makes it more binding on the suspect or accused than the written undertaking. The objects of personal suretyship are the same obligations imposed when giving a written undertaking (Part 1 of Article 142 of the CPC).
- Trusted persons (two or more individuals) before an investigator or inquiry officer may be citizens whom the suspect or accused, for various reasons, acknowledges, whose opinions they respect, and whom they would not let down. These persons do not necessarily have to be parents or other close relatives. They may be work colleagues, friends, or acquaintances of the aforementioned persons, whose position and status in society are capable of exerting the necessary educational and preventive influence on the suspect or accused and ensuring the objectives of this preventive measure (Part 1 of Article 142 of the CPC).
- However, the legislator makes the application of this preventive measure subject to a number of conditions: a written motion from the sureties addressed to the authority conducting the criminal proceedings and the written consent of the suspect or accused to the application of this preventive measure against them are required. In the absence of these documents, this preventive measure shall not be applied (Part 2 of Article 142 of the CPC).
- The next action of the sureties is to provide written undertakings concerning the obligations they have assumed and their liability in the event of their breach by the suspect or accused (the imposition of a monetary penalty in accordance with the procedure established by Article 160 of the CPC). Each surety provides a separate written undertaking of personal suretyship, which they have the right to withdraw at any stage of the criminal proceedings by notifying the authority conducting the criminal proceedings in writing (Parts 3–5 of Article 142 of the CPC).
- Upon fulfilment of the above conditions, the authority conducting the criminal proceedings is entitled to issue a resolution selecting personal suretyship as a preventive measure.
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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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