SERGEY PEN

Foreign Experience of Criminal Fines Implementation Feasibility

Sergey Pеn , 2016

The main approaches to sentencing and defining types of punishments for individual crimes and categories of crimes have no significant differences in most countries.

GENERAL CONCLUSIONS

The implementation is feasible through the following:1.a possibility of studying the financial standing of the defendant2.a flexible (individualized) approach to assessing the fines3.simplified conversion of fines into other punishments, and vice versa4.a possibility of revising the amount of and exempting from a fine

Sergey Pеn , 2016

1 Studying the Financial Standing of the Defendant- The effective RK Criminal Procedure Code stipulates that the court may investigate the

financial standing of an offender in connection with the punishment only within conciliation proceedings:

 Article 625, Part 5: "After the plea agreement has been considered, the chairman shall ask the defendant how long it will take him/her to satisfy in good faith the property claims provided for in the agreement, in doing so the chairman shall find out the details of his/her family and financial status."

- in any other case, such investigation would be in conflict with the presumption of innocence, as it would forejudge the conviction and

sentencing

Foreign Experience: Information about the financial status shall be collected as early as on the pre-trial stage and stated in a pre-tial report.

Sergey Pеn , 2016

1 Studying the Financial Standing of the DefendantArticle 113. "The circumstances subject to proof in a criminal case" shall be supplemented with a requirement to find out the defendant's financial standing (income sources, expenses, dependents, loans liabilities, etc.)

This is not contrary to the presumption of innocence, since it is required by the prosecuting authority subject to the circumstances "characterizing the personality of the suspect / defendant" (Article 113, Part 1, paragraph 5)

The version stated in the Draft Law appears to be disadvantageous, as it vests the issue to the chambers:"Article 390, Part 2-1. When deciding on a fine as the penalty, the court shall discuss and state in its verdict a motivated capability of the defendant to pay such fine. "However, the judge may not discuss any such issue in the chambers. It is preferable that the court shall already have such information on their hands.

Sergey Pеn , 2016

2 Flexible (Individualized) Approach to Assessing a FineForeign Experience: Fines are applicable to nearly all types of criminal offenses, except for the most grave (dangerous) ones. In some cases, maximum amounts of fines are not limited by the law (Level 5 crimes in England and Wales).

Implementation is possible through making fines universally applicable, which can be achieved by electing not to mention them in the articles of the Special Part of the Criminal Code and by including a provision requiring use of fines as the main form of punishment for any constituent elements of offenses with the exception of few (particularly grave, terrorist and etc.) offenses.In this case, whenever a fine is awarded, the maximum thresholds shall be determined based on either the crime category, or offense type - misdemeanors.

Today, fines may be imposed for 51 types of misdemeanor offenses and 112 types of offenses as stated in the RK Criminal Code

Sergey Pеn , 2016

3 Simplified Conversion of Fines into Other Punishments, and Vice VersaThe Criminal Code uses the exact monetary unit of the Monthly Calculation Index (MCI), which prevents potential individualization for the following reasons:1)the sanction for an offense is defined within a fixed range measured in "times the MCI"

- the lower limit is set by Article 41 of the Criminal Code-the upper limit is set to an appropriate sanction in the article of the Special Part of the Criminal Code

2)penalties may be replaced with a strictly established amount:4 x MCI = KZT 8,484 = 1 day of imprisonment

This demonstrates that it is impossible to adequately automatically replace a fine with an imprisonment, because different amounts of fines will entail, for different persons, different periods of deprivation of liberty, which is contrary to the intent of such punishment, because the fine amount affects the degree of liability depending on the financial standing, whereas imprisonment initially puts all under the same conditions.

Sergey Pеn , 2016

3 Simplified Conversion of Fines into Other Punishments, and Vice VersaForeign Experience: A universal unit of measurement – "day fines" – is used, which may have different weights (cost) depending on the financial standing of the defendant. However, if a fine is replaced by deprivation of liberty, it does not create any difficulties, as 1 day fine = 1 day of imprisonment.

It seems to be reasonable to use a similar approach by electing not to peg, in the Criminal Code, 1 day of imprisonment to the fixed size of 4 x MCI.

Sergey Pеn , 2016

4 Revising the Amount of and Exempting from the FineForeign Experience: fine amounts are revisable provided the offender has satisfied in good faith all claims, demonstrated positive post-criminal behavior, or faced any hardships, and also there is a possibility of making a deduction from the outstanding fine of the damages paid to the victim (as an incentive).

It is possible to implement these provisions to Articles 73 and 76 of the Criminal Code of the Republic of Kazakhstan.

However, we should understand that both damages to the victim, and the fine to the state revenue shall be repaid from one and the same source - by the defendant. Therefore, instead of abstractive assessment of damages to victims of crime we should use exact calculation of the financial burden whenever fines are applied, and reparation should prevail over execution of the sentence.

Sergey Pеn , 2016

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