Commentary on Article 145. Bail of the Criminal Procedure Code of the Republic of Kazakhstan

1. Bail consists of the deposit by the suspect, accused person or another person of money into the court's deposit account to ensure that the suspect or accused person fulfils their obligations to appear before the person conducting the pre-trial investigation, the prosecutor or the court when summoned by them, as well as to prevent them from committing new intentional criminal offences. Other valuables, movable and immovable property, which shall be subject to seizure, may also be accepted as bail. The burden of proving the value of the bail and the absence of encumbrances shall rest with the bail provider. Bail shall not be applied in the cases provided for in Part Nine of Article 148 of this Code.

2. Bail shall be applied only with the authorization of an investigating judge or pursuant to a court ruling.

When selecting bail as a preventive measure, the person conducting the pre-trial investigation shall, in accordance with Article 140 of this Code, issue a resolution to initiate a motion before the court for authorization to apply this preventive measure and shall forward it to the court. Certified copies of the criminal case materials confirming the validity of the motion shall be attached to the resolution.

A copy of the resolution shall simultaneously be sent to the prosecutor.

3. The amount of bail shall be determined taking into account the seriousness of the suspicion, the personality of the suspect or accused person, the nature of the criminal act and the financial situation of the bail provider, and shall not be less than: thirty times the monthly calculation index, but not more than one hundred and twenty times the monthly calculation index, in cases involving suspicion of the commission of a minor offence; one hundred and twenty times the monthly calculation index, but not more than two hundred times the monthly calculation index, in cases involving suspicion of the commission of a medium-gravity offence through negligence; two hundred times the monthly calculation index, but not more than three hundred and fifty times the monthly calculation index, in cases involving suspicion of the commission of an intentional medium-gravity offence; three hundred and fifty times the monthly calculation index in cases involving suspicion of the commission of a grave offence; and five hundred times the monthly calculation index in cases involving suspicion of the commission of an especially grave offence.

With the consent of the bail provider, other property whose value exceeds the maximum amount of bail established for the relevant category of offence may also be provided as bail.

In exceptional cases, the amount of bail may be set below the minimum amount, or other property equivalent to that amount may be accepted, in respect of:

1) persons who have dependent minor children, elderly parents, relatives with disabilities, as well as persons who are guardians and trustees;

2) excluded by Law of the Republic of Kazakhstan No. 292-VI dated 27 December 2019 (see Article 2 for the procedure for entry into force);

3) persons belonging to socially vulnerable groups of the population, as well as persons receiving various types of social assistance from the budget;

4) minors and persons of retirement age.

4. The suspect, accused person or defendant who is not held in custody, or another person, shall, no later than five days from the date of selection or application of the preventive measure in the form of bail, deposit the funds into the relevant account and submit a document confirming such deposit to the person conducting the pre-trial investigation, the prosecutor or the court.

In the event of failure to comply with the investigating judge's ruling on the deposit of bail, the person conducting the pre-trial proceedings shall initiate the issue of changing the preventive measure.

5. Where other valuables, movable or immovable property are provided as bail, the bail provider shall, within the same period, submit them to the body conducting the criminal proceedings together with the title documents.

Where the preventive measure in the form of bail is applied to a suspect detained in accordance with the procedure provided for in Article 128 of this Code, the investigating judge shall, until the actual deposit of bail, apply the preventive measure in the form of detention or house arrest in accordance with the procedure provided for in Part Seven of Article 148 of this Code.

Where bail replaces a previously selected preventive measure in the form of detention or house arrest, the suspect or accused person shall be released from custody only after the actual deposit of bail. If, by that time, the periods of detention provided for by this Code have expired, they shall be extended until the bail is deposited.

6. When applying the preventive measure in the form of bail, the suspect or accused person shall be informed of their obligations and the consequences of failure to fulfil them, while a bail provider who is not the suspect or accused person shall be informed of the criminal offence of which the person is suspected or accused, the punishment prescribed by law for the act committed, the obligations to ensure the proper conduct of the suspect or accused person and their appearance when summoned, as well as the consequences of failure to fulfil these obligations.

7. A record shall be drawn up upon acceptance of the bail, indicating that the suspect or accused person has been informed of their obligations to appear when summoned and not to commit criminal offences, and that the bail provider has been warned that, in the event of the suspect or accused person evading appearance when summoned or committing an intentional criminal offence, the bail shall be forfeited to the State. The record shall be signed by the official who selected this preventive measure, the suspect or accused person, and also by the bail provider where the latter is another person. The record and the document confirming the deposit of bail into the court's deposit account shall be attached to the case materials, and a copy of the record shall be provided to the bail provider.

8. Where bail is deposited pursuant to a ruling of the investigating judge issued in accordance with the procedure provided for in Part Eight of Article 148 of this Code, in respect of a person against whom the preventive measure in the form of detention has been applied, the explanation to the suspect or accused person of their obligations under the bail arrangement and the consequences of failure to fulfil them shall be carried out by the head of the place of detention.

The release of the suspect or accused person from custody shall be carried out by the head of the place of detention after receipt of a document confirming the deposit of bail, of which the person conducting the pre-trial investigation, the supervising prosecutor and the investigating judge shall be notified immediately.

9. The subject of bail shall be returned to the bail provider immediately if the suspect or accused person has not violated the obligations imposed on them, but a more severe preventive measure has been applied in respect of the suspect or accused person, a judgment has been delivered, or a ruling on the termination of proceedings in the criminal case has been issued.

Where the bail providers are the suspect or accused person, the court, when considering the matter of the disposition of the bail in the presence of a civil claim, procedural costs and the need for other property-related recoveries, shall be entitled, upon a motion by the prosecutor, to decide on the enforcement against the subject of bail or a part thereof.

Enforcement against the subject of bail provided by a bail provider who is not the suspect or accused person may be carried out only with that person's consent.

10. Where a person who deposited bail on behalf of the suspect or accused person submits a written request stating that they are no longer able to ensure the suspect's or accused person's fulfilment of their obligations to appear before the body conducting the criminal proceedings, the subject of bail shall be returned immediately, provided that the suspect or accused person has not violated the said obligations.

Upon delivery of a judgment or issuance of a ruling finally resolving the criminal case, the court or the criminal prosecution authority, respectively, shall simultaneously decide on the disposition of the subject of bail.

11. In the event that the suspect or accused person fails, without valid reasons, to fulfil the obligations secured by bail, the prosecutor shall submit a motion to the investigating judge for the forfeiture of the bail to the State.

The court shall adopt an appropriate decision, which may be appealed by the bail provider to a higher court in accordance with the procedure provided for in Article 107 of this Code.

12. Upon return of the subject of bail, the bail provider shall be charged the amount spent on ensuring the safekeeping of the bail.

13. The procedure for acceptance, valuation, storage, return, sale and enforcement against the subject of bail, as well as the forfeiture of bail to the State, shall be determined by the Government of the Republic of Kazakhstan.

Note. Article 145 was amended by the following Laws of the Republic of Kazakhstan: No. 248-V dated 7 November 2014 (shall enter into force on 1 January 2015); No. 84-VI dated 3 July 2017 (shall enter into force upon the expiration of ten calendar days after the date of its first official publication); No. 118-VI dated 21 December 2017 (shall enter into force upon the expiration of ten calendar days after the date of its first official publication); No. 180-VI dated 12 July 2018 (shall enter into force upon the expiration of ten calendar days after the date of its first official publication); No. 292-VI dated 27 December 2019 (see Article 2 for the procedure for entry into force).

Bail, as an independent preventive measure, shall be selected on the basis of the materials of the criminal case, taking into account the nature of the grounds and other circumstances considered when selecting a preventive measure in general (Articles 136—138 of the CPC). It should be noted that, in recent years, there has been a growing trend in the number of cases in which bail is applied in criminal cases.

Part 2 of Article 145 of the CPC contains a set of conditions that must be observed when selecting bail.

First. The purpose of bail is to ensure the proper conduct of the suspect or accused person and the fulfilment of their obligations to appear before the body conducting the criminal proceedings when summoned. When bail is selected, the suspect, accused person and bail provider who is not the suspect or accused person shall be informed of their rights and obligations, as well as other circumstances and obligations related to the application of bail and the legal consequences of violating the bail requirements (Part 6 of Article 145 of the CPC).

Second. The subject of bail may consist of both money and other property. Money must be deposited into the deposit account of the court having jurisdiction over the case; the investigating judge of that court shall be entitled to forfeit it to the State where the subject of the criminal offence fails to comply with the conditions of bail.

Other property (movable property, immovable property and other valuables), except for money, shall be subject to seizure in accordance with the procedure established by Articles 161—163 of the CPC.

Third. A record shall be drawn up upon acceptance of the bail, which, together with documents confirming the deposit of money into the court's deposit account or title documents, shall be signed by the interested persons and attached to the case. A copy of the record shall be provided to the bail provider. The record shall specifically stipulate two grounds for forfeiting the bail to the State, both for the subject of the criminal offence and, above all, for the bail provider: the suspect's or accused person's evasion of appearance when summoned by the bodies conducting the criminal proceedings, and the commission of an intentional criminal offence during the period in which bail is selected (Part 7 of Article 145 of the CPC).

Fourth. Money or other property provided as the subject of bail may originate either from the suspect or accused person themselves or from other persons acting in their interests.

Fifth. The actual value of other property and the absence of encumbrances on such property (restrictions on the right holder's authority to possess, use and/or dispose of the property), according to the data of the legal cadastre, banking and other financial institutions, as well as individuals and legal entities, shall be proven by the bail provider intending to deposit the bail, through the submission of supporting documents.

Sixth. Bail may be applied in all categories of criminal offences, except for cases involving the offences and especially grave offences specified in paragraphs 1—2 of Part 9 of Article 148 of the CPC. The law does not permit the application of bail in these cases because such bail would not fulfil its purposes: it is difficult to expect a person who has committed these offences to demonstrate proper conduct and fulfil their obligations to appear before the body conducting the criminal proceedings.

Furthermore, the application of bail is also prohibited in other cases specified in Part 9 of Article 148 of the CPC.

During the pre-trial investigation, bail may be applied only with the authorization of the investigating judge, including when considering the issue of authorizing detention, by the investigating judge's authorization in the procedure for replacing detention with bail.

In addition, particular attention should be paid to the fact that, where grounds exist, the investigating judge is required to establish bail simultaneously with the authorization of detention (Part 8 of Article 148 of the CPC).

The resolution to initiate a motion before the court for authorization to apply bail shall be sent by the person conducting the pre-trial investigation directly to the investigating judge. Certified copies of the criminal case materials confirming the validity of the motion submitted shall be attached thereto. A copy of the resolution shall simultaneously be sent to the prosecutor for the purpose of supervising the legality of its application (Part 2 of Article 145 of the CPC).

Bail may be applied during the preparation of the case for trial by the court, as well as during the court's consideration of the case on its merits (Part 2 of Article 145 of the CPC).

The amount of bail varies and depends on the circumstances taken into account when selecting a preventive measure, the category of the criminal offence, as well as the form of guilt in its commission (only in cases involving medium-gravity offences), and the financial situation of the bail provider; it is expressed as a multiple of the monthly calculation index.

In turn, the monetary value of the monthly calculation index is established by the Law on the Republican Budget for the next financial year (Paragraph 3 of Article 71 of the Budget Code dated 4 December 2008).

As a rule, the limits of the amount of bail may not be lower than those prescribed by law and may not exceed the lower limits of the higher bail amounts established for other categories of criminal offences (Part 3 of Article 145 of the CPC).

 Alongside these rules, the law allows, taking into account the social and financial circumstances, as well as the age of the person who committed the criminal offence, for the amount of bail to be set below the amount prescribed by law for a particular category of criminal offences, or for other property equivalent to the amount of standard bail, the amounts of which are specified in the provisions of the first sentence of Part 3 of Article 145 of the CPC, to be accepted as bail. The list of such persons is specified in paragraphs 1–4 of Part 3 of Article 145 of the CPC and is exhaustive.

In each specific case, the case materials must substantiate the social and other characteristics of the persons concerned by means of supporting documents submitted by them or their defence counsel (certificates issued by authorised state bodies and officials, certificates from the place of employment, identity documents, etc.).

The law establishes a period of five days from the date of selection of the preventive measure for depositing monetary funds as bail into the court's deposit account, and exactly the same period applies when other property is provided as bail. In both cases, documents confirming either the deposit of monetary funds (a cash receipt order) or the right to the other property must be submitted to the body conducting the criminal proceedings (Part 4 of Article 145 of the CPC). In particular, documents establishing title, on the basis of which rights (encumbrances of rights) to immovable property arise, change and/or terminate, may include: an agreement on the gratuitous transfer of housing into the ownership of citizens (privatisation); a sale and purchase agreement; a deed of gift; an exchange agreement; a certificate of inheritance (by law or by will); a court decision or settlement agreement, etc.

If bail is not deposited within the time limits established by law, the investigating judge, upon the motion of the person conducting the pre-trial proceedings, shall have the right to change the preventive measure (Part 4 of Article 145 of the CPC).

There is a certain specific feature in the application of bail to a suspect who has been detained in accordance with Article 128 of the CPC (Part 5 of Article 145 of the CPC). In this case, the procedure for applying bail is governed by Parts 7–8 of Article 148 of the CPC and consists of the following. When issuing a ruling authorising a preventive measure in the form of detention in custody or house arrest, the investigating judge, with the exception of cases involving particularly serious crimes, is obliged to determine an amount of bail sufficient to ensure that the suspect fulfils the obligations provided for in Part 3 of Article 140 of the CPC. The investigating judge's ruling shall specify which obligations provided for in Article 140 of the CPC will be imposed on the suspect if bail is deposited, the consequences of failure to fulfil those obligations, the justification for determining the amount of bail, as well as the possibility of applying it. Upon the actual deposit of bail into the court's deposit account, the suspect shall be released from custody. The explanation to the suspect or accused of the obligations associated with bail and the consequences of their non-fulfilment, as well as the release of the suspect or accused from custody, shall be carried out by the head of the place of detention after receipt of the document confirming the deposit of bail (Part 8 of Article 145 of the CPC).

Similarly, if detention in custody was initially applied to a person and the preventive measure was subsequently changed to bail, that person shall be released from custody (if necessary, with an extension of the period of detention in custody) only after bail has actually been deposited (Parts 5 and 8 of Article 145 of the CPC).

Part 9 of Article 145 of the CPC determines the fate of bail: its immediate return if the obligations secured by bail have been fulfilled; or the enforcement of the bail upon the motion of the prosecutor by the court in a case in which a civil claim has been filed or procedural costs subject to recovery from the guilty person are present. If the bail has been deposited by a person who is not the suspect or accused, the consent of that person is required for enforcement against the subject of bail.

In view of the time limits for investigation, not all bail providers are able to ensure the constant appearance of the suspect or accused before the body conducting the criminal proceedings upon its summons. Therefore, they shall have the right to waive in writing the obligations they have undertaken and immediately receive the bail back (Part 10 of Article 145 of the CPC). In such a case, other preventive measures may be applied to the suspect or accused, taking into account the gravity of the charge and their personal characteristics.

Upon completion of the proceedings in the case, the judgment or ruling must specify the fate of the bail, taking into account the provisions set out in Parts 9, 11 and 12 of Article 145 of the CPC, including:

the return of the bail to the bail provider, with recovery of the amounts spent on storing the bail; the conversion of the bail into state revenue by the investigating judge, where grounds exist, upon the motion of the prosecutor; the conversion of the bail into state revenue by the court hearing the case on its merits, with these matters being reflected in a separate ruling or judgment, or in a ruling terminating the criminal case.

With regard to the above matters, the clarifications contained in Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan dated 24 January 2020, “On Certain Issues Concerning the Authorisation of Preventive Measures”, should be taken into account. In particular, if the suspect or accused has not violated the obligations imposed on them, or has violated them for a valid reason, but a stricter preventive measure has been applied to them, or a judgment or ruling terminating the criminal proceedings has been issued, the subject of bail shall be immediately returned to the bail provider. The decision to return the deposited bail when a stricter preventive measure is applied shall be made by the body conducting the criminal proceedings with the consent of the prosecutor. When delivering a judgment, if the bail providers are the suspect or accused, the court, when considering the fate of the bail in the presence of a civil claim, procedural costs and other property-related recoveries, shall have the right, upon the motion of the prosecutor, to decide on enforcement against the subject of bail or a part thereof (paragraph 23).

In the event that the suspect or accused fails, without valid reasons, to fulfil the obligations secured by bail, the prosecutor shall submit to the investigating judge a motion to convert the bail into state revenue, setting out evidence of this fact. The investigating judge shall consider the prosecutor's motion in accordance with the procedure provided for in Article 56 of the CPC. Where such obligations are not fulfilled by the defendant, the issue of converting the bail into state revenue shall be resolved by the court when delivering the judgment. The obligations associated with the deposited bail shall be deemed to have been violated if the suspect or accused, without valid reasons, evades appearing upon summons of the investigator, inquiry officer or court, or otherwise obstructs the criminal proceedings, or commits a new criminal offence. When considering the issue of a violation of obligations associated with deposited bail, the investigating judge must examine the reasons why the suspect, accused or defendant evaded appearing before the pre-trial investigation body or the court (paragraph 24).

The procedure for appealing a decision of the court hearing the case on its merits to convert the bail into state revenue is governed by Article 107 of the CPC.

The procedure for accepting, storing, realising and converting bail into state revenue is determined by the Rules for the Acceptance, Storage, Realisation and Conversion of Bail into State Revenue (Resolution of the Government of the Republic of Kazakhstan No. 1219 dated 21 November 2014, which entered into force on 1 January 2015). It is appropriate to reproduce the text of these Rules in full.

According to paragraph 3 of these Rules, “The following may be accepted as bail:

from immovable property — land plots, buildings, structures and other property firmly attached to the land, that is, objects whose relocation without disproportionate damage to their intended purpose is impossible;

from movable property — money, valuables, vehicles and documentary non-issue securities.

The procedure for accepting bail is as follows.

The body conducting the criminal proceedings (hereinafter referred to as the “body”) which has selected bail as a preventive measure shall, before issuing a resolution to initiate a motion before the court for authorisation to apply this measure, verify the bail provider against the records of the Committee on Legal Statistics and Special Records of the Prosecutor General's Office of the Republic of Kazakhstan to establish whether there is any information indicating that the bail provider has been declared legally incapacitated or has limited legal capacity by a court. Where the bail provider is a legal entity, the body shall verify its registration against the records of the justice authorities (paragraph 4).

Money provided as bail shall be deposited into the deposit account of the court having territorial jurisdiction, for which the territorial subdivision of the authorised body responsible for the organisational and logistical support of the activities of local and other courts shall issue a document confirming the deposit of bail (paragraph 5).

Documents determining the value of the property provided as bail shall be issued by authorised bodies or by legal entities and individuals in accordance with the procedure established by the legislation of the Republic of Kazakhstan on valuation activities. The value of a documentary non-issue security shall be determined in accordance with the legislation on the securities market as of the time the bail is deposited (paragraph 6).

Property shall be formalised as bail only if no prohibition has been imposed on transactions involving it and the person offering it provides evidence (documents) confirming ownership of that property. Property held in joint ownership shall be accepted as bail provided that notarised written consent has been obtained from the co-owner(s) (paragraph 7).

When transferring documentary non-issue securities as bail, the bail provider shall also submit information contained in the Unified State Register of Legal Entities, obtained from the tax authorities, confirming that the issuer of the documentary non-issue securities is not in the process of liquidation and has not ceased its activities (paragraph 8).

A protocol on the acceptance of bail shall be drawn up in two copies. The first copy shall be attached to the materials of the criminal case, and the second shall be handed to the bail provider against a receipt. If there are several bail providers, a copy of the protocol certified by an official shall be handed to each of them (paragraph 9).

After acceptance, the subject of bail shall be transferred for storage (paragraph 10). The period of obligations under the deposited bail shall run from the moment the preventive measure in the form of bail is selected until its cancellation or modification, throughout the entire period of pre-trial investigation and judicial proceedings, as well as until the judgment or ruling of the court enters into legal force (paragraph 11).

The subjects of bail shall be stored as follows:

money — in the court's deposit account;

immovable property — at the location of the property;

antiques and other items of particular historical, artistic or cultural value that require special storage conditions — in museums; in all other cases — at the body;

cars, motorcycles and other vehicles (including watercraft and aircraft) — in specially guarded premises, areas or parking facilities established by decision of local executive bodies and constituting communal property;

documentary non-issue securities — at the body that accepted them as bail, or at second-tier banks;

jewellery — at the body, in accordance with the Rules for the Seizure, Accounting, Storage, Transfer and Destruction of Physical Evidence, Seized Documents, Money in National and Foreign Currency, Narcotic Drugs and Psychotropic Substances in Criminal Cases by Courts, Prosecutor's Offices, Criminal Prosecution Bodies and Forensic Examination Bodies, approved by Resolution of the Government of the Republic of Kazakhstan No. 1291 dated 9 December 2014 (paragraph 12).

An acceptance and transfer certificate shall be drawn up when the bail property is transferred for storage, with the participation of the responsible person who assumes the obligations to ensure its safekeeping (paragraph 13).

When a vehicle is transferred for storage, an additional certificate of its technical condition shall be drawn up with the mandatory participation of the bail provider and a specialist (paragraph 14).

The delivery of the subject of bail to the place of storage shall be carried out by the bail provider (paragraph 15).

Following consideration of the prosecutor's motion, the court shall issue an appropriate ruling on converting the subject of bail into state revenue in accordance with the procedure provided for by the CPC (paragraph 16).

The realisation of bail property into state revenue shall be carried out on the basis of a judicial act. Enforcement of the judicial act on converting bail property into state revenue shall be carried out by court enforcement officers in accordance with the procedure established by the legislation on enforcement proceedings (paragraph 17).

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 National Academy of Natural Sciences of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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