Commentary on Article 69. Release from Punishment with the Establishment of Suretyship of the Criminal Code of the Republic of Kazakhstan
1. A person who has committed a criminal misdemeanor or a crime of minor or medium gravity for the first time, which is not associated with causing death or grievous bodily harm to a person, and for the commission of which a fine is предусмотрен among other types of principal punishments under the relevant article or part of an article of the Special Part of this Code, may be released from punishment by the court with the establishment of suretyship.
2. The establishment of suretyship consists of depositing a pledge in an amount equal to the maximum amount of the fine предусмотрен for the criminal offense committed.
3. The term of suretyship shall be established as follows:
1) for the commission of a criminal misdemeanor — from six months to one year;
2) for the commission of a crime of minor gravity — from one year to two years;
3) for the commission of a crime of medium gravity — from two to five years.
4. If the person released from punishment does not commit a new criminal offense during the period of suretyship, the pledge shall be returned to the surety upon expiration of the suretyship period.
5. If the person commits a new criminal offense during the period of suretyship, the court shall revoke the decision on release from punishment and impose punishment on that person in accordance with the rules for imposing punishment based on the aggregate of sentences. In this case, the pledge shall be transferred to state revenue.
6. The provisions of this Article shall not apply to persons who have committed corruption-related crimes, terrorist crimes, extremist crimes, crimes committed as part of a criminal group, or crimes against the sexual inviolability of minors.
According to Part 1 of the commented Article, a person who has committed a criminal misdemeanor or a crime of minor or medium gravity for the first time, which is not associated with causing death or grievous bodily harm to a person, and for the commission of which a fine is предусмотрен among other types of principal punishments under the relevant article or part of an article of the Special Part of the Criminal Code, may be released from punishment by the court with the establishment of suretyship.
According to Part 1 of Article 142 of the CPC, personal suretyship consists of the acceptance by trustworthy persons of a written obligation guaranteeing the proper conduct of the suspect or accused and their appearance when summoned by the body conducting the criminal proceedings. The number of sureties may not be less than two. The selection of personal suretyship as a preventive measure is permissible only upon the written petition of the surety and with the consent of the person in respect of whom the suretyship is provided (Part 2 of Article 142 of the CPC). The surety gives a written undertaking of personal suretyship, in which the surety confirms that the nature of the suspicion against the person for 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 that this preventive measure is intended to prevent, have been explained to them (Part 3 of Article 142 of the CPC).
A surety shall have the right to withdraw from the suretyship at any time during the criminal proceedings. In such a 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 1 of Article 136 of the CPC (Part 4 of Article 142 of the CPC).
Where there are sufficient grounds to believe that the suspect or accused may abscond from the criminal prosecution authorities or the court, obstruct the objective investigation of the case or its examination by the court, or continue engaging in criminal activity, as well as for the purpose of ensuring the execution of the judgment, the body conducting the criminal proceedings shall be entitled, within the limits of its powers, to apply to such persons one of the preventive measures provided for in Article 137 of the CPC (Part 1 of Article 136 of the CPC).
If the suspect or accused commits actions that the personal suretyship was intended to prevent, a monetary penalty may be imposed by the court on each surety in accordance with the procedure provided for in Article 160 of the CPC (Part 5 of Article 142 of the CPC).
The grounds for release from punishment with the establishment of suretyship are:
commission of a criminal misdemeanor for the first time;
commission for the first time of a crime of minor or medium gravity that is not associated with causing death or grievous bodily harm to a person;
the provision of a fine among other types of principal punishments for the commission of such an offense under the relevant article or part of an article of the Special Part of the Criminal Code of the Republic of Kazakhstan.
A criminal misdemeanor is a culpable act (action or omission) that does not pose a great public danger, causes minor harm or creates a threat of causing harm to an individual, an organization, society or the state, and for which punishment in the form of a fine, corrective labor, community service, arrest, or expulsion of a foreigner or stateless person from the Republic of Kazakhstan is предусмотрен (Part 3 of Article 10 of the Criminal Code).
According to Part 2 of Article 11 of the Criminal Code, a crime of minor gravity is an intentional act for which the maximum punishment provided for by the sanction of an article or part of an article of the Special Part of the Criminal Code does not exceed two years of imprisonment, as well as negligent acts for which the maximum punishment provided for by the sanction of an article or part of an article of the Special Part of the Criminal Code does not exceed five years of imprisonment.
According to Part 3 of Article 11 of the Criminal Code, crimes of medium gravity are intentional acts for which the maximum punishment provided for by the sanction of an article or part of an article of the Special Part of the Criminal Code does not exceed five years of imprisonment, as well as negligent acts for which punishment in the form of imprisonment for a term exceeding five years is предусмотрен.
In accordance with Paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in the Application of Article 68 of the Criminal Code of the Republic of Kazakhstan,” a crime committed for the first time shall mean an act that a person actually commits for the first time, or an act committed not for the first time, where the person has been released from punishment in accordance with the procedure established by law for a previously committed crime, or the conviction has been expunged or removed (Article 79 of the Criminal Code).
A person who has committed two or more crimes (in cases of repeated crimes or an actual aggregate of crimes), none of which has yet been subject to a determination of liability, cannot be considered a person who has committed a crime for the first time.
In accordance with Part 2 of Article 69 of the Criminal Code, the establishment of suretyship consists of the deposit of a pledge by a natural person acting as a surety in an amount equal to twice the maximum amount of the fine provided for the criminal offense committed, and by a legal entity in an amount equal to ten times the maximum amount of such fine.
According to Part 1 of Article 145 of the CPC, a pledge consists of money deposited with the court by the suspect, accused or another person to secure the fulfillment by the suspect or accused of their obligations to appear when summoned by the person conducting the pre-trial investigation, the prosecutor or the court, as well as to prevent them from committing new intentional criminal offenses. Other valuables, movable and immovable property subject to seizure may also be accepted as a pledge. The burden of proving the value of the pledge and the absence of encumbrances rests with the pledgor. A pledge shall not be applied in the cases provided for in Part 9 of Article 148 of the CPC.
According to Part 7 of Article 145 of the CPC, a record shall be drawn up confirming the acceptance of the pledge, indicating that the suspect or accused has been informed of their obligations to appear when summoned and not to commit criminal offenses, and that the pledgor has been warned that, in cases where the suspect or accused evades appearing when summoned or commits an intentional criminal offense, the pledge shall be transferred to state revenue.
The record shall be signed by the official who selected this preventive measure, the suspect or accused, and also by the pledgor if the latter is another person. The record and the document confirming the deposit of the pledge into the court's deposit account shall be attached to the case materials, and a copy of the record shall be handed to the pledgor.
Part 9 of Article 148 of the CPC provides that, when an investigating judge or court issues a ruling authorizing detention as a preventive measure, a pledge shall not be established in the following cases:
suspicion or accusation of a person of committing intentional offenses that resulted in the death of the victim;
suspicion or accusation of a person of committing a crime as part of a criminal group, terrorist and (or) extremist crimes;
particularly grave crimes provided for in Chapters 1, 4, 5, 11 and 17 of the Criminal Code of the Republic of Kazakhstan, as well as particularly grave crimes committed during a state of emergency or in the course of mass riots; particularly grave military crimes committed during wartime or in a combat situation;
the existence of sufficient grounds to believe that the suspect or accused will obstruct the proceedings or abscond from the investigation and the court;
the existence of information indicating that the suspect or accused will continue criminal activity;
violation by the suspect or accused of a previously selected preventive measure in the form of a pledge in the criminal case under investigation.
The term of suretyship shall be established as follows:
for the commission of a criminal misdemeanor — from six months to one year;
for the commission of a crime of minor gravity — from one year to two years;
for the commission of a crime of medium gravity — from two to five years (Part 3 of Article 69 of the Criminal Code).
When determining the duration of the suretyship period, the court shall take into account the circumstances of the criminal offense committed by the guilty person, the personality of the offender, and the presence of mitigating and aggravating circumstances.
In accordance with Part 6 of Article 36 of the CPC, if, before the court retires to the deliberation room, the pledge provided for in Article 69 of the Criminal Code of the Republic of Kazakhstan has been deposited with the court, the court shall be entitled to render a conviction judgment releasing the person from serving the punishment with the establishment of suretyship.
If the court adopts another final decision in the case, the subject of the pledge shall be immediately returned to the person who deposited it. When the subject of the pledge is returned, the amount spent on ensuring its safekeeping shall not be recovered from the pledgor. The procedure for accepting, valuing, storing, returning, selling and transferring the pledge to state revenue shall be determined by the Government of the Republic of Kazakhstan.
Release of a person from serving a punishment with the establishment of suretyship shall not be permitted if the accused or the victim objects to it.
Upon expiration of the suretyship period, the pledge shall be returned to the surety if the person released from criminal liability has not committed a new criminal offense during the period of suretyship (Part 4 of Article 69 of the Criminal Code). If the person commits a new criminal offense during the period of suretyship, the court shall revoke the decision on release from criminal liability and impose punishment on that person in accordance with the rules for imposing punishment based on the aggregate of sentences under Article 60 of the Criminal Code. In this case, the pledge shall be transferred to state revenue.
Release from criminal liability with the establishment of suretyship shall not apply to persons who have committed corruption-related crimes, terrorist crimes, extremist crimes, crimes committed as part of a criminal group, or crimes against the sexual inviolability of minors (see the commentary to subparagraphs 29), 30), 39), 24), 42) of Article 3 of the CPC).
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.*
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