On the recovery of procedural costs in criminal cases

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2018 No. 10

      In order to ensure the uniformity of judicial practice and the correct application of the norms of Chapter 22 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) governing the recovery of procedural costs, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications.

Procedural costs are expenses related to criminal proceedings that are reimbursed from the republican budget or from the funds of the suspect, accused, convicted, their legal representatives, as well as payments (reimbursements) to individuals (victims, private prosecutors, witnesses, experts, translators, witnesses, lawyers, etc.) and legal entities. (expert institutions, criminal prosecution authorities, etc.) involved in criminal proceedings.

      It follows from paragraph 11) of Article 177 of the CPC that the list of types of procedural costs is not exhaustive.

Other expenses related to procedural costs should be understood as the expenses of the bodies of inquiry, investigation and court incurred during the proceedings, directly related to the collection, research and evaluation of evidence provided for by the criminal procedure law.

     These include expenses related to the reimbursement of the cost of things that have been damaged or destroyed during investigative actions, the reimbursement of the cost of damaged property during investigative actions, the costs of exhumation and burial, etc.

      The costs associated with carrying out special operational search activities and secret investigative actions are not included in the procedural costs.

      Expenses spent on the treatment of victims are not procedural costs, but are subject to consideration in a civil claim in the same proceeding as a criminal case in accordance with the first part of Article 166 of the CPC.

The CPC does not provide for a specific form of appeal for the recovery of procedural costs.

      The procedural costs associated with the payment of a lawyer providing legal assistance as appointed by the body conducting the criminal proceedings, a representative and an interpreter, are collected upon their application.

     Expenses related to the conduct of forensic examinations are subject to recovery on the basis of supporting documents of the forensic examination bodies with the application of the calculation of the cost of the conducted forensic examination.

      The recovery of procedural costs at the pre-trial stage of the criminal process is carried out on the recommendation of the prosecutor by the investigating judge.

     The statements of the interested parties should contain information confirming the grounds for reimbursement of the procedural costs and the amount to be recovered. The relevant documents (certificates, orders, settlement amounts, etc.) are attached to the application.

The issue of recovery of procedural costs is considered by the court when resolving a criminal case on the merits. In this case, the court is obliged to check and examine the submitted documents confirming the validity of the procedural costs.

     At the court session, the convicted person is given the opportunity to inform the court of his position regarding the amount of the recovered costs and his property status. When several persons are convicted in a case, court costs are subject to recovery from the convicted in a shared manner, taking into account the nature of the fault, the degree of responsibility and the property status of each.

      In accordance with paragraph 44 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 4 "on the court verdict", the court's conclusions on the recovery of procedural costs must be motivated in the verdict. The operative part of the verdict indicates the amount and to whom the procedural costs are imposed or accepted at the expense of the State.

     The recovery of procedural costs in a criminal case is not subject to resolution in civil proceedings.

Procedural costs may be imposed by the court on the suspect, the accused, the convicted, their legal representatives, or are accepted at the expense of the state.

      With the mandatory participation of a defender appointed by the body conducting the criminal proceedings, in the cases provided for in the first part of Article 67 of the CPC, the procedural costs are borne by the State.

      In other cases, the appointment of a defender by the body conducting the criminal process, the procedural costs are collected in a general manner, taking into account the property status of the suspect, accused, convicted.

      If the court, when deciding on the recovery of procedural costs, comes to the conclusion that the convicted person or legal representative is financially insolvent (in cases of compulsory medical measures against minors), then by virtue of the provisions of part six of Article 178 of the CPC, the procedural costs must be reimbursed in whole or in part from budgetary funds. At the same time, it should be borne in mind that the absence of funds or other property from a person at the time of making a decision is not in itself a sufficient reason for recognizing him as financially insolvent.

     It is the right of the court to fully or partially exempt these persons from paying the procedural costs and to charge them to the State. When determining the property status, the courts are supposed to carefully clarify the presence or absence of work for the convicted person, their legal representative, their marital status, the number of persons dependent on them, and other circumstances that significantly affect their financial situation.

The court has the right to recover the procedural costs from the convicted person, with the exception of the amounts paid to the interpreter.

     The procedural costs are also borne by the convicted person who has been released from punishment (due to the expiration of the statute of limitations for criminal prosecution, active repentance, reconciliation, and the application of an amnesty act).

      In case of acquittal of the defendant or termination of the case in accordance with paragraphs 1), 2) of the first part of Article 35 of the CPC, the procedural costs are borne by the State.

      When a defendant is acquitted in a criminal case on one or more articles of the charge or the criminal case is terminated on separate episodes on rehabilitative grounds, the procedural costs associated with this charge are reimbursed at the expense of the State.

     In cases of private prosecution, if the defendant is acquitted, the court has the right to recover the procedural costs in whole or in part from the person on whose complaint the proceedings were initiated. If the criminal case is terminated due to reconciliation of the parties, the procedural costs are charged to the defendant.

     In the event of termination of the criminal case, if the private prosecutor refuses to charge, the court has the right to recover the procedural costs in whole or in part from the person on whose complaint the proceedings were initiated.

Explain to the courts that when determining the amounts to be paid to a lawyer for providing legal assistance to a suspect, accused, defendant, convicted person, as well as those who participated as a representative in the cases established by part two of Article 76 of the CPC, the time spent by him on exercising the powers provided for in parts one must be taken into account. And the second article 70 of the CPC, including the time spent visiting the suspect, the accused, the defendant, convicted in places of restriction and imprisonment, the person, in respect of which proceedings are being conducted on the application of compulsory medical measures, for the duration of waiting for investigative and other procedural actions, a court hearing, for studying the materials of the criminal case, as well as for performing other actions of a lawyer to provide legal assistance, provided they are confirmed by appropriate documents.

      The court decides on the amount of compensation to be paid for the provision of legal assistance to a defense lawyer or a designated representative in a separate decision issued simultaneously with the verdict or after its announcement.

     The decision on the payment of legal aid is made by the court on the basis of a written statement by the lawyer, accompanied by calculations and other documents confirming the costs associated with protection or representation.

     The resolution is drawn up in accordance with the legislation governing the payment of legal aid.

     When calculating the working hours of defenders, representatives should check the information provided in the statements of lawyers for compliance with their actual time spent on participation in a criminal case by listening to, watching audio, video recordings of the court session.

     When making a decision on the remuneration of a defender or representative, the courts take into account the actual time spent on providing legal assistance, travel and other expenses related to protection and representation. At the same time, the amount to be recovered is not subject to reflection in the decision, but the specific time spent by the defense attorney in the case and the category of the criminal offense of which the person is suspected or accused are indicated.

In accordance with the first part of Article 175 of the CPC, if an expert performed his functions as part of an official assignment, his remuneration is reimbursed by the organization in which he is a member.

      The amounts spent on conducting an expert examination in the judicial examination bodies are collected in accordance with the Rules for Determining the cost of conducting a forensic examination in the judicial examination bodies, approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated March 30, 2017 No. 325.

The salaries of experts of the forensic examination bodies and staff, social tax, social deductions, and overhead costs for performing relevant work during the forensic examination are not subject to collection as procedural costs during the examination, since this work is carried out by them as part of their official assignment and is included in the scope of their official duties.

      Penalties paid to an expert for the performance of his duties during a pre-trial investigation or in court, except in cases where these duties were performed as part of an official assignment, are levied on the basis of the Rules for Reimbursement of Expenses Incurred during Criminal Proceedings, approved by Resolution of the Government of the Republic of Kazakhstan dated October 9, 2014 No. 1070 (hereinafter referred to as the Rules).

     Courts should keep in mind that the convicted person may incur unnecessary procedural costs for conducting expert examinations, the conclusions of which were important for the proper resolution of the criminal case.

     In cases where the pre-trial investigation body has appointed examinations that are no longer necessary, the court has the right to take response measures against these bodies in order to exclude unjustified expenditure of budgetary funds.

According to the third part of Article 178 of the CPC, the procedural costs associated with the participation of an interpreter in the case are borne by the State.

     If the translator performed his/her functions as part of an official assignment, his/her remuneration is reimbursed by the State of the organization that employs the translator.

      In accordance with paragraph 10 of the Rules, written and oral translations made by the translator during the consideration of the case are subject to payment.

     The decision to pay remuneration to translators is made by the courts in the form of a resolution based on the translator's application, which must comply with the requirements of criminal procedure legislation and Rules.

The eighth part of Article 178 of the CPC stipulates that in cases of criminal offenses of minors, the court may impose the recovery of procedural costs on their legal representatives.

     When making a final decision on a case, the courts must take into account the possibility of collecting procedural costs at the expense of the victim himself if he has earnings or other income, as well as to clarify the property status of his legal representative. If the property insolvency of the minor and his legal representative is established, the procedural costs are borne by the State.

The calculation of amounts spent in connection with the search for a suspect, accused, defendant, fugitives from investigation or court is regulated by the Rules for Calculating Amounts spent in connection with the search for a suspect, accused, defendant, Fugitives from investigation or court, approved by Resolution of the Government of the Republic of Kazakhstan dated November 21, 2014 No. 1220.

     The procedural costs associated with the search for a suspect, accused, defendant, fugitive from investigation or trial, consist of:

      expenses for official business trips of officials of the criminal prosecution body during investigative activities;

     the cost of travel of the suspect, the accused, the defendant, who fled from the investigation or the court, from the place of their detention to the place of criminal prosecution;

      daily expenses, if necessary, for the accommodation of the suspect, the accused, the defendant, who fled from the investigation or the court, en route from the place of detention to the place of criminal prosecution.

     Documents confirming the amounts of the procedural costs are attached to the materials of the criminal case by the body conducting the criminal process.

     The issue of recovery of procedural costs related to the search for a suspect, accused, defendant, fugitive from investigation or trial, is considered by the court when resolving a criminal case on the merits. At the court hearing, it is necessary to carefully check the reasonableness of the costs incurred in connection with the search.

If the proceedings are completed at the pre-trial stage of the criminal process in cases of termination of the criminal case on non-rehabilitating grounds, the issue of recovery of procedural costs is resolved by the investigating judge on the recommendation of the prosecutor in accordance with paragraph 5) of the second part of Article 55 of the CPC.

      Courts should keep in mind that, according to the first part of Article 178 of the CPC, an investigating judge considers issues within his competence only during pre-trial proceedings in a criminal case, therefore, consideration of prosecutors' submissions on recovery of procedural costs after consideration of the criminal case on the merits is not allowed.

     Investigating judges, when considering the submissions of prosecutors on the issue of recovery of procedural costs, must require the attachment of all necessary documents from the materials of the criminal case.

To clarify that the procedural costs associated with calling witnesses, victims and their representatives, witnesses to the body conducting the criminal process, are reimbursed from budgetary funds in accordance with the Rules.

     The average salary retained at the place of work for the person called as a witness, the victim, or his representative, incurred for all the time spent by him in connection with the summons to the body conducting the criminal process, is not included in the procedural notices.

Expenses related to the storage and transfer of physical evidence are included in procedural seizures and are subject to collection from budgetary funds on the basis of the Rules for the seizure, accounting, storage, Transfer and Destruction of physical Evidence, seized documents, funds in national and foreign currency, narcotic drugs, psychotropic substances in criminal cases by the court, prosecutor's offices, criminal prosecution and forensic examination, approved by Resolution of the Government of the Republic of Kazakhstan dated December 9, 2014 No. 1291.

     The body conducting the pre-trial investigation is obliged to provide the court with documents confirming the specified expenses (protocol, act on storage of material evidence, postal receipts for shipment, etc.).

The procedural costs also include the amounts spent in connection with bringing the suspect or accused to the body conducting the criminal process, if they fail to appear without a valid reason, as well as the postponement of the trial due to the defendant's failure to appear without a valid reason or his appearance in court in a state of intoxication, which are subject to recovery by the court when the final decision.

      To clarify that the procedural costs are collected from the said persons who have been summoned to the inquirer, investigator, prosecutor or court in cases of postponement of consideration of the case in court or postponement of the investigative action due to their failure to appear without valid reasons.

     In each case, the body conducting the criminal proceedings must identify the reasons for the non-appearance of the persons to be notified of the summons.

      The internal affairs body, which is responsible for the execution of the decision on the drive, is obliged to provide the court with information confirming its proper execution.

If there are procedural costs, the criminal prosecution body is obliged to take measures to ensure their recovery, provided for in article 161 of the CPC. The indictment must be accompanied by a certificate containing information on the procedural costs.

      In this regard, the court is obliged to check whether the pre-trial investigation body has fulfilled the requirements of part seven of Article 299 of the CPC.

      The absence of information on procedural costs in the materials of the criminal case is not a reason for returning the criminal case to the prosecutor in accordance with the requirements of article 323 of the CPC. At the same time, the court, when passing sentence, may issue a private decision to the criminal prosecution authority and the prosecutor who approved the indictment.

To clarify that, in accordance with paragraph 13) of the first part of Article 390 of the CPC, when passing sentence, the court resolves the question of who, to what extent the procedural costs are imposed.

     If the issue of procedural costs has not been resolved at the time of sentencing, it is subject to resolution on appeal at the petitions of the persons concerned.

      In the cassation procedure, the issue of recovery of procedural costs is subject to consideration if there are other grounds provided for in Article 485 of the CPC.

      The convicted person's application for postponement or installment of execution of the sentence in terms of recovery of procedural costs is subject to consideration in accordance with paragraph 16) of Article 476 of the CPC.

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.

     Chairman of the Supreme Court of the Republic of Kazakhstan

J.Asanov

     Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of the plenary session

According to G. N.Almagambetov

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

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