of June 29, 2018 No. 10
About collection of procedural costs for criminal cases
For the purpose of ensuring uniformity of court practice and the correct application of the regulations of Chapter 22 of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure) regulating collection of procedural costs, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations.
1. Procedural costs are the expenses connected with criminal proceeding which are refunded at the expense of means of the republican budget or means of the suspect, person accused, convict, their legal representatives, and also payment (remuneration) to physical persons (to the victims, private prosecutors, witnesses, experts, translators, witnesses, lawyers, etc.) and to legal entities (expert organizations, criminal prosecution authorities, etc.) involved in criminal trial.
2. It is necessary to understand the expenses of bodies of inquiry, investigation and court suffered in case of proceeedings, directly connected with collecting, research and assessment of proofs, provided by the criminal procedure law as other expenses relating to procedural costs.
The expenses connected with cost recovery of the things which underwent to spoil or destruction in case of production of investigative actions with cost recovery of the damaged property in case of production of investigative actions, expenses on exhumation and burial, etc. concern to them.
The expenses connected with conducting special investigation and search operations, secret investigative actions do not belong to procedural costs.
The expenses spent for treatment of the victims are not procedural costs, are subject to consideration according to the made civil action in one production with criminal case according to part one of article 166 Code of Criminal Procedure.
3. The Code of Criminal Procedure does not provide certain form of the address of collection of procedural costs.
The procedural costs connected with compensation of the defender giving legal aid to destination of body, conducting criminal procedure, the representative and the translator are collected according to their statement.
The expenses connected with production of judicial examinations are subject to collection based on supporting documents of bodies of judicial examinations with appendix of calculation of cost of the conducted judicial and expert research.
Collection of procedural costs at pre-judicial stage of criminal procedure is made on representation of the prosecutor by the investigative judge.
Statements of interested persons shall contain the data confirming the bases for compensation of procedural costs, and the amount which is subject to collection. The relevant documents are enclosed to the application (references, orders, the amounts of calculations, etc.).
4. The question of collection of procedural costs is considered by court in case of permission of criminal case in essence. At the same time the court shall check and research the submitted documents confirming justification of procedural costs.
In judicial session the convict is given opportunity to inform court the line item concerning the amount of levied costs and the property status. In case of condemnation in the matter of several persons legal costs are subject to collection from convicts in equity procedure taking into account nature of fault, degree of responsibility and property status of everyone.
According to Item 44 of the normative resolution of the Supreme Court of the Republic of Kazakhstan of April 20, 2018 No. 4 "About the adjudication" conclusions of court about collection of procedural costs shall be motivated in sentence. In substantive provisions of sentence it is specified in what size and to whom procedural costs are assigned or are accepted into the account of the state.
Collection of procedural costs for criminal case is not subject to permission according to the procedure of civil legal proceedings.
5. Procedural costs can be assigned by court to the suspect, the person accused, the convict, their legal representatives or are accepted to the account of the state.
With obligatory participation of the defender appointed by the body conducting criminal procedure in the cases provided by part one of article 67 Code of Criminal Procedure, procedural costs are charged to the state.
In other cases of appointment of the defender the body conducting criminal procedure, procedural costs are collected in general procedure, taking into account property solvency of the suspect, the person accused, the convict.
If the court in case of the solution of question of collection of procedural costs comes to conclusion about property insolvency of the convict or legal representative (on cases on application of enforcement powers of medical nature, concerning minors), then owing to provisions of part six of article 178 Code of Criminal Procedure procedural costs shall be compensated fully or partially at the expense of budgetary funds. At the same time it must be kept in mind that absence at the time of decision making at person of money or other property in itself is not good cause for its recognition imushchestvenno insolvent.
Full or partial relief of specified persons from payment of procedural costs and their reference into the account of the state is the right of court. In case of determination of property status courts should find out carefully availability or lack of work from the convict, the legal representative, their marital status, the number of persons which are in their dependence and other circumstances significantly influencing their financial position.
6. The court has the right to collect with condemned procedural costs, except for the amounts paid to the translator.
Procedural costs are also assigned to the convict exempted from punishment (in connection with lapse of time of criminal prosecution, active repentance, conciliation, application of the act of amnesty).
In case of justification of the defendant or diversion according to Items 1), 2) of part one of article 35 Code of Criminal Procedure procedural costs are accepted to the account of the state.
In case of the defendant's justification on criminal case on one or several Articles of the brought charge or the terminations of criminal case on separate episodes on the rehabilitating bases the procedural costs connected with this accusation are compensated at the expense of the state.
For private prosecution in case of the defendant's justification the court has the right to collect procedural costs fully or partially from person according to whose claim production was begun. If criminal case is dismissed in connection with conciliation of the parties, then procedural costs are collected from the defendant.
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