Commentary to article 662. Violation of the personal guarantee for the appearance of the accused (suspect) The Code of the Republic of Kazakhstan on Administrative Offences
Violation or non-fulfillment by persons of the written guarantee given by them on the appearance of the accused (suspect) to the person conducting the inquiry, investigator or court, which led to the evasion of the accused (suspect) from the investigation or the court, –
entails a fine in the amount of three monthly calculation indices.
The general object of the administrative tort under consideration is the normal activity of the institution of state power.
The generic object is social relations that arise when observing the rules for the execution of a personal guarantee for the appearance of the accused.
Personal surety is a preventive measure that is not related to the detention of a suspect or accused, and is applied in accordance with the Criminal Procedure Code of the Republic of Kazakhstan.
Thus, in accordance with part 1 of Article 142 of the CPC, personal surety consists in the acceptance by trustworthy persons of a written commitment that they vouch for the proper behavior of the suspect, the accused and their appearance at the summons of the body conducting the criminal process. The number of guarantors may not be less than two.
Guarantors may be persons who are trustworthy to the investigator or the inquirer. They can be citizens whom the suspect or the accused recognizes for various reasons, considers their opinion and will not let them down. These are not necessarily parents or close relatives. They may be colleagues at work, friends, acquaintances of these 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.
However, the legislator sets a number of conditions for the application of this preventive measure: a written request from the guarantors and the written consent of the suspect or accused to apply this preventive measure to him is required. In the absence of these documents, this preventive measure is not applied.
A personal guarantee is issued in a separate document for each guarantor and is attached to the decision on the application of a preventive measure.
Personal surety, as a preventive measure, pursues 2 goals:
Ensuring proper behavior of the suspect, the accused;
to ensure the appearance of the suspect or the accused upon the summons of the body conducting the criminal process.
Ensuring the proper behavior of the suspect and the accused lies in the fact that these persons did not leave their place of residence and did not oppose the proceedings at all stages of the criminal process. A permanent or temporary place of residence must be located on the territory of the Republic and is limited to a specific district, city, city district, village (rural) district, settlement, village (village).
Ensuring the appearance of a suspect or accused upon a call from the body conducting the criminal process is necessary to save time during the investigation of criminal offenses.
It should also be noted that part 5 of Article 142 of the CPC provides for the imposition of monetary penalties on guarantors if the suspect or the accused commits actions to prevent which this measure was applied. The imposition of a monetary penalty is carried out in accordance with criminal procedure proceedings, on the basis of article 160 of the CPC.
It is worth noting that the imposition of a monetary penalty in accordance with the procedure provided for by the Code of Criminal Procedure is contrary to the rules for imposing an administrative penalty for an administrative offense.
In our opinion, it would be advisable to divide Article 142 of the CPC into 2 articles.: 1) A personal guarantee to ensure the proper conduct of the suspect, the accused, and 2) A personal guarantee to ensure the appearance of the suspect, the accused upon summons from the body conducting the criminal process.
In this case, for violation of Article 1, it was possible to impose a monetary penalty provided for in Article 160 of the CPC, and for violation of Article 2, to bring to administrative responsibility under the commented article. In the meantime, this remains a conflict of norms in the settlement of these legal relations.
When choosing a preventive measure, the suspect, the accused and the guarantors coordinate with the authorities conducting the criminal process on the procedure and form of summoning these persons for investigative actions and to court. After handing over a copy of the decision on the choice of a preventive measure, the suspect, the accused and the guarantors are warned about the need to comply with all the regulations and additional restrictions resulting from the use of personal sureties, and in case of non-compliance, the guarantors are held accountable.
The objective side of the offense is manifested in illegal actions (inaction) that violate the rules of criminal procedure proceedings by violating or failing to comply with a personal guarantee to ensure the appearance of the suspect or accused to the body conducting criminal prosecution or to court, which led to the evasion of the accused or suspect from the investigation and trial.
That is, the investigator or inquirer obliges the suspect to appear at the internal affairs body, but the latter did not appear at the appointed time and did not notify of the impossibility of appearing. In this case, the investigator notifies the guarantors of this fact and invites them to initiate administrative proceedings under the article under investigation.
Having collected the materials, the investigator submits them to his jurisdiction for consideration of the case. A copy of the decision on the application of a preventive measure, a copy of a personal guarantee, as well as a copy of the notice of the need to appear before the authority (official) or the court must be attached to the materials of the administrative offense case. Given that there cannot be less than two guarantors, a protocol on an administrative offense will be drawn up for each guarantor, and accordingly each guarantor will be brought to administrative responsibility.
The subjects of this offense may be citizens who have reached the age of 18, who are trustworthy to the investigator, the inquirer, who have made a written commitment that they vouch for the behavior and appearance of the suspect, the accused. These may be citizens whom the suspect or the accused recognizes for various reasons, takes into account their opinion and will not let them down.
Law-abiding citizens who have not only reached the age of majority and are able to bear the responsibility provided for by law, but also have a good reputation and deserve respect - deputies of legislative authorities, public figures, representatives of public organizations who can have a real impact on the behavior of the accused and the suspect and guarantee his proper behavior.
The law does not limit the circle of these persons in any way.
The subjective side of the offense can be both in the form of intent and negligence, since this personal guarantee depends not only on the subject, but also on the accused, the suspect.
On the basis of Article 804, Part 1, the authority to draw up protocols on administrative offenses under Article 662 of the Administrative Code has been granted to officials:
1) bodies of internal affairs (paragraph 1);
2) State bailiffs (paragraph 56).
Cases of administrative offenses provided for in Article 662 of the Administrative Code are considered by judges of specialized district and equivalent administrative courts (art. 684 part 1).
In 2018, not a single case of violation of personal guarantees for the appearance of suspects or accused persons was registered in the Republic of Kazakhstan.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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