Мир закона

МРНТИ 10.79.37

UDC 343.98.06

Sakharbay Arman — head of the scientific research center of the Aktobe law Institute of the Ministry of internal affairs of the Republic of Kazakhstan named after M. Bukenbayev, master of law, lieutenant colonel of the Police (Republic of Kazakhstan, Aktobe)

THE RATIO OF AN ADMINISTRATIVE FINE TO A MONETARY PENALTY

Аnnotation. The purpose of this article is to study the ratio of administrative fines and monetary penalties as measures of administrative responsibility, to identify their legal nature, purposes of application, features of execution, as well as the differentiation of these measures in the system of administrative and legal sanctions. The author sets out to analyze the regulatory framework governing the application of administrative fines and monetary penalties, identify problematic aspects of law enforcement practice and propose ways to improve legislation in this area to increase the effectiveness of these administrative liability measures. Taking into account the purpose and objectives, the article draws certain conclusions based on the analysis of the legislation of foreign countries and the Republic of Kazakhstan, indicating problematic aspects of law enforcement practice of the ratio of administrative fines and monetary penalties in criminal procedural activities.

Keywords: administrative fine, criminal procedure, monetary penalty, coercive measures, criminal procedural coercion, participants, appointment, grounds for imposing monetary penalty.

Сахарбай Арман — Қазақстан Республикасы ІІМ М. Бөкенбаев атындағы Ақтөбе заң институтының Ғылыми зерттеу орталығының бастығы, полиция подполковнигі, заң ғылымдарының магистрі (Қазақстан Республикасы, Ақтөбе қ.)

ӘКІМШІЛІК АЙЫППҰЛ МЕН АҚШАЛАЙ ӨНДІРІП АЛУДЫҢ АРАҚАТЫНАСЫ

Түйін. Осы мақаланың мақсаты әкімшілік айыппұл мен ақшалай өндіріп алудың әкімшілік жауапкершілік шаралары ретіндегі арақатынасын зерттеу, олардың құқықтық сипатын, қолдану мақсаттарын, орындалу ерекшеліктерін анықтау, сондай-ақ әкімшілік-құқықтық санкциялар жүйесіндегі осы шаралардың аражігін ажырату болып табылады. Автор алдына әкімшілік айыппұл мен ақшалай өндіріп алуды қолдануды реттейтін нормативтік-құқықтық базаны талдау, құқық қолдану практикасының проблемалық аспектілерін белгілеу және аталған әкімшілік жауапкершілік шараларын қолданудың тиімділігін арттыру үшін осы саладағы заңнаманы жетілдіру жолдарын ұсыну міндеттерін қояды.

Қойылған мақсаттар мен міндеттерді ескере отырып, мақалада шет мемлекет­тер мен Қазақстан Республикасының заңнамасын талдау негізінде қылмыстық іс жүргізу қызметінде әкімшілік айыппұл мен ақшалай жазаның арақатынасының құқық қолдану практикасының проблемалық аспектілерін көрсететін белгілі бір қорытындылар жазылады.

Түйінді сөздер: әкiмшiлiк айыппұл, қылмыстық iс жүргiзу,  ақшалай өндіріп алу, мәжбүрлеу шаралары, қылмыстық iс жүргiзудi мәжбүрлеу, қатысушылар, мақсаты, ақшалай өндіріп алу негіздері.

Сахарбай Арман — начальник научно-исследовательского центра Актюбинского юридического института МВД Республики Казахстан им. М. Букенбаева, ма­гистр юридических наук, подполковник полиции (Республика Казахстан, г. Актобе)

СООТНОШЕНИЕ АДМИНИСТРАТИВНОГО ШТРАФА И ДЕНЕЖНОГО ВЗЫСКАНИЯ

Аннотация. Целью данной статьи является исследование соотношения адми­ни­ст­ра­тивного штрафа и денежного взыскания как мер административной ответст­вен­ности, выявление их правовой природы, целей применения, особенностей ис­пол­нения, а также разграничение данных мер в системе административно-право­вых санкций. Автор ставит перед собой задачи проанализировать нормативно-пра­вовую базу, регулирующую применение административного штрафа и денежного взыскания, обозначить проблемные аспекты правоприменительной практики и пред­ложить пути совершенствования законодательства в данной сфере для повы­шения эффективности применения указанных мер административной ответствен­ности.

Учитывая цель и поставленные задачи, в статье на основе анализа законода­тельств зарубежных стран и Республики Казахстан сделаны определенные выво­ды, указывающие на проблемные аспекты правоприменительной практики соот­но­шения административного штрафа и денежного взыскания в уголовно-процес­суальной деятельности.

Ключевые слова: административный штраф, уголовный процесс, денежное взыскание, принудительные меры, уголовно-процессуальное принуждение, участ­ники, назначение, основания наложения денежного взыскания.

 

Introduction. The importance of Criminal Procedural liability is expressed in the compulsion to perform legal duties by influencing the person who committed the offense with the threat of attracting a certain fine or monetary recovery. Its main purpose is to ensure favorable conditions during the investigation of a criminal case by attracting monetary recovery, which is manifested as criminal procedural responsibility.

Monetary recovery may be applied to the victim, witness, specialist, translator and other persons, with the exception of a lawyer, prosecutor and defendant, in accordance with Article 159 of the Criminal Code of the Republic of Kazakhstan, in the amount and in accordance with the procedure established by Article 160 for non-performance of procedural duties and violation of discipline at the court session. Failure of the participants in the proceedings to fulfill their procedural duties specified in the law is a procedural offense.

Currently, in accordance with the latest changes in the field of assigning a monetary recovery measure, that is, from the moment of introduction of the «procedure for applying monetary recovery» (Article 160) into the Code, the Code does not refer to the Administrative Code for the appointment of monetary recovery. This is because Article 160, paragraph 4, defines the specific sanction size. From here, the main difference between Kazakh legislation and Russian legislation regarding the procedure for assigning monetary recovery is revealed.

The main part. If a certain violation occurs at the court session, the judge directly decides on the application of the measure of influence in relation to the relevant persons. In practice, one of the most important questions is what is the procedure for applying monetary recovery by a judge against a violator at a court session? In response to this, the well-known procedural officers briefly explain the procedure for conducting monetary foreclosure, which is applied in the event of a violation of discipline in a court session[1]. That is, they believe that if a certain violation occurred at the ongoing court session, then this violation should be considered at this court session, and a monetary recovery or a fine should be applied by the judge against the offender. And in other cases, such a measure is carried out at a court session organized with the summons of the offender to court. The absence of the summoned person in court does not prevent the case from being considered in court. The basis for the absentee consideration of the case is the protocol of the offense, which is described and drawn up during the pre-trial investigation. In addition, the basis for the court session is also the protocol of the translator, specialist, personal guarantor and witness, drawn up during the court session, in which the actions of misconduct are established.

After the publication of these documents, the explanation of the violator is read, and then, if the prosecutor is involved in the case, his conclusion is published. Then the court determines the amount of monetary recovery or fine against the violator by issuing an appropriate decision. The judge who made such a decision has the right to postpone the execution of his decision for up to three months. The court decision issued by the violator has the right to appeal to the court of the highest instance, and the prosecutor also has the right to object. The decision of the court to attract a monetary recovery or a fine must be executed no later than seven days or must be executed after the completion of the consideration of the complaint received by the Supreme Court of instance[2]. Based on this, it should be added that if the court makes a verdict against the accused, and in relation to other participants in criminal proceedings (victim, witness, witness, etc.), it makes a decision for the violation that occurred. In addition, monetary recovery can be applied in relation to the participants in the proceedings at the court session (victim, witness, specialist, translator).

The money collected by the court is transferred to a specially created Victim сompensation fund. This fund is regulated by the law of the Republic of Kazakhstan dated January 10, 2018 No. 131-VI «on the Victim compensation fund». In accordance with subparagraph 2 of Article 10 of the law, this fund is a member of the Criminal Procedure Code of the Republic of Kazakhstan 71, 78, 80, 81, 82, 90, 142, 156 and for non-performance of procedural duties and violation of discipline at the court session, provided for in articles 165, shall be filled with monetary recoveries imposed by the court on the victim, witness, specialist, translator and other persons, with the exception of the lawyer, prosecutor and defendant.

However, it is necessary to make amendments and additions to the relevant article of the specified Law (P. 10), since the law of the Republic of Kazakhstan dated June 09, 2021 No. 49-VII has changed the number of persons who may be involved in monetary recovery in the Code.

A number of authors in the field of criminal proceedings may not take into account their opinion on simplifying the procedure for applying this measure, giving the inquiry officer, investigator, prosecutor the right to apply a monetary recovery measure on the fact of misconduct committed by the participants in the proceedings during the preliminary investigation period.

Using the research method «interviewing a specialist» (interviewing), we received information on this issue from Doctor of law, professor A. N. Akpanov. «Do you support the simplification of the procedure for applying this measure by transferring the right to apply a monetary foreclosure measure to the investigator, interrogator, prosecutor?»to the question of A. Akpanov:» Yes, I support. Because I do not see any legal obstacles to this situation. For example, the district police inspector, or patrol police officers, as soon as they see the offenses that have occurred, at the same time and at the same time, they have the right to issue a fine with the appropriate registration of electronic tablets or protocols. And, being an official with a higher status than them, why not have such rights as an Inquirer, investigator or prosecutor?».

Around this point of view, V. N. Vetrova says: «the investigator has the right to apply a measure that significantly infringes on the constitutional rights and interests of a person for a procedural offense that has occurred–a forced seizure, and he does not have the right to apply monetary recovery. This, in our opinion, is a paradoxical situation»[3].

This opinion is supported by I. E. Bykhovsky. According to him, it is logical to transfer the right to apply monetary recovery to the interrogator, investigator and prosecutor. And the possibility of filing a complaint against the applied monetary recovery to the prosecutor and the court is a sufficient guarantee of compliance with the rule of law[4].

Article 159, 160 of the Criminal Code of the Republic of Kazakhstan does not specify acts of disobedience to the requirements of the bailiff as the basis for applying monetary recovery. However, in accordance with Article 84 of the Criminal Code of the Republic of Kazakhstan, the bailiff monitors the order in the hall during the trial, executes the order of the presiding judge and protects judges, witnesses and other participants in the process in the courts, protects them from the influence of others, promotes the conduct of judicial-procedural actions, exercises other powers assigned to him by law. In addition, in accordance with Article 7 of the law of the Republic of Kazakhstan «on bailiffs» №. 150-1, adopted on July 7, 1997, in order to fulfill the duties assigned to him, the bailiff has the right: to demand from citizens to comply with the established procedure for judicial activity and to stop committing illegal actions in court rooms and; the participant in the judicial proceedings is obliged to ensure the protection of the judge and other participants, as well as the protection of the deliberation room and other judicial rooms and buildings; in connection with compliance with the procedure for conducting judicial proceedings, it is obliged to comply with the order of the judge, forcibly bring those who refuse to appear in court without good reason, and prevent, warn of offenses in the court rooms and the courtroom.

On this basis, it is clear that the bailiff has the right to issue an order in connection with his official duties. His order issued in the courtroom is binding on all persons present there. The order of the bailiff on termination of actions that violate the established procedure for the court session may be directed to the execution of the order issued by the presiding officer or issued directly on his own behalf.

In our opinion, refusal to comply with the bailiff’s requirements is the basis for applying the appropriate measure of influence against the offender, which should include monetary recovery. This view of ours is also supported by some processalists[5].

An act of disobedience to the requirements of a bailiff is qualified as an administrative offense. Article 667 of the Administrative Code of the Republic of Kazakhstan specifies liability as a penalty for this offense. The objective side of this administrative offense is expressed in the disobedience of the guilty person to the requirements of the bailiff to stop disorderly actions during the court session. However, this norm of administrative legislation creates a legislative chaos, repeating the procedure for assigning monetary recovery specified in Article 160 of the Code. Therefore, there is a need to exclude from administrative legislation the norms that, as mentioned above, belong to the space of Criminal Procedure.

The Criminal Procedure legislation does not specify the measures of influence applied in relation to participants who did not comply with the requirements of the bailiff to stop disruptive actions in the course of judicial proceedings. This is the reason why we raised the issue of the «bailiff». Since one of the main tasks of the bailiff is to monitor compliance with the order of the court session, the measure of influence (monetary recovery) on actions of disobedience to his requirements should also be reflected in Article 346 of the Criminal Code of the Republic of Kazakhstan.

If we analyze this issue in a comparative way with the Russian legislation, we will see the following situations: 117, 118, 258, and 17.3 p., 28.1 P., 28.2 p., 28.3 p. of the Code of the Russian Federation (hereinafter referred to as the Code of the Russian Federation) are mutually contradictory, but according to B. B. Bulatov and V. V. Nikolyuk, these contradictions are purely formal in nature owner[6].

Administrative liability for non-compliance with the orders of the judge on termination of actions that violate the procedure established by law of the court session is specified in Section 1 of Article 17.3 of the Administrative Code of the Russian Federation without participation in one or another judicial proceeding. That is, in Part 1 of Article 17.3 of the Administrative Code of the Russian Federation, the general norm on liability for disobedience to the orders of a bailiff or judge is formulated in relation to all types of judicial proceedings: civil, criminal, administrative, constitutional and arbitration[7].

And in the cases provided for in the criminal procedural space, priority is given to the established procedure for imposing monetary foreclosures in Russian legislation, since, firstly, these offenses occur in a criminal case — during the proceedings, and secondly, according to the rules specified in Article 118 of the Criminal Code of the Russian Federation, prompt prosecution of offenders is ensured.

The Criminal Procedure legislation and the legislation on administrative offenses define various rules for attracting an offender who has violated the procedure for a court session to a monetary recovery (fine). If, in accordance with Article 118 of the Criminal Code of the Russian Federation, monetary recovery is applied during judicial proceedings of a criminal case, then in accordance with article 28.1, article 28.2, article 28.3 of the Administrative Code of the Russian Federation, a protocol is drawn up with an official of the Department of internal affairs with a person who does not obey the orders of the bailiff or judge on the termination of actions that violate the established procedure of the court session, from which a case on an administrative offense is initiated.

The tendency to bring citizens to administrative responsibility for an offense that occurs in connection with criminal proceedings, unlike the tendency to bring them to criminal responsibility for a crime against Justice, the former is characterized by effective and prompt implementation. Therefore, with the help of administrative and legal sanctions, it is possible to promptly eliminate the circumstances that prevent the conduct of investigative actions and other procedural actions in a criminal case, as well as the consideration of the case in court.

Therefore, administrative sanctions for offenses in the criminal procedural space also contribute to the protection of procedural norms applied by officials. And this action affects the strict Fulfillment by the participants of criminal proceedings of the duties assigned to them by the Code. Thus, a procedural offense can lead to criminal procedural, administrative and criminal liability.

For example, a witness may be brought to criminal responsibility under three articles of the Criminal Code of the Republic of Kazakhstan for intentionally failing to fulfill the duties assigned to him specified in Article 78B of the Criminal Code of the Republic of Kazakhstan, that is, for deliberately giving false answers in the case, refusing to answer and disclosing information about the circumstances known to him in the case without the permission of the interrogator, investigator and prosecutor.

For example, in Cuba, if the witness himself does not express his will to participate in the proceedings, it is considered a crime to apply such a coercive measure as monetary recovery to him in order to persuade him. An official who has committed such an act is brought to criminal responsibility[8].

The very existence of the possibility of applying monetary recovery in relation to participants in criminal proceedings who have not fulfilled their procedural duties is a sanction of a fine nature, which is applied to the guilty person for violation of the requirements of the law and for committing unauthorized actions in the Code.

According to Yu.V. Franzifirov, monetary recovery is included in procedural coercive measures aimed at ensuring compensation for damage caused by a crime[9]. It is impossible to agree with this opinion, since the legislation does not formulate such a goal before monetary foreclosure. Its application is due to the violation by the participants of criminal proceedings of the duties assigned to them by the Code and violation of discipline at the court session. The damage caused by the crime is not related to any of these offenses and cannot ensure their compensation at all.

13 years ago, in the legal literature, proposals began to be made to switch to the implementation of monetary recovery mainly in a criminal procedure. One of them was a domestic scientist, Doctor of law T. A. Khanov. In his opinion: «…the procedure for applying all procedural coercive measures should be regulated by criminal procedure legislation, as well as monetary recovery in criminal proceedings. The presence of a clearly defined procedural procedure for applying monetary recovery contributes to ensuring the rights and legitimate interests of persons included in the space of procedural relations. That is, this measure should be carried out not in an administrative procedural manner, but only in a criminal procedural manner.

The mutual separation of the provisions of the Criminal Procedure Law and the law on administrative offenses will lead to a general legislative and legal order. The transition to the use of monetary recovery in a criminal procedural manner ensures the correct observance of procedural norms, — the absence of mixing of procedural and administrative provisions approved by the legislation of the Republic of Kazakhstan. Protects against the existence of legal chaos. The procedure for carrying out activities of state bodies aimed at combating crime is different, therefore, pre-trial criminal proceedings have their own special goals and objectives»[10].

Let’s take the opinions of T. A. Khanov and Yu.V. Franzifirov as motivation and study the measure of monetary recovery in the context of foreign legislation.

For example, in accordance with Article 272 of the Criminal Code of the Republic of Uzbekistan, an offender who violated discipline at a court session or expressed disrespect for him without obeying the order of the presiding officer is warned about bringing to administrative responsibility.

According to the Criminal Procedure legislation of Uzbekistan, along with monetary recovery, a fine may be applied to a person who refuses to perform their procedural duties in the course of proceedings in a criminal case. Because Article 274 of the Code States: «monetary recovery and fine shall be appointed by the court competent to consider the criminal case in accordance with the procedure specified in the law. If the violation occurs in the courtroom, then the fine is imposed at the same meeting by the judge considering the case. In other cases, the issue of monetary recovery is appointed by the court with the summons of the offender. The failure of the offender to appear in court on appeal does not prevent the resolution of the issue»¹⁰. During the consideration of this question, it was established that: monetary foreclosure applies to participants in criminal proceedings, and a fine applies to persons who are not participants in the proceedings.

Under Lithuanian law, persons who fail to perform criminal procedural duties are entitled to be fined by the prosecutor, the judge of the pre-trial investigation and the court, and arrest by the judge of the pre-trial investigation or the court. In addition, under this law, a fine may also apply to a suspect or accused who did not appear without satisfactory reasons at the invitation of the procedural body. The prosecutor issues a decision on the imposition of a fine in relation to a particular person on his own initiative or at the request of the pre-trial procedural body. The decision of the prosecutor may be appealed in accordance with the requirements defined in Article 63 of the Criminal Code of the Republic of Lithuania. And the judge of the pre-trial investigation or the court issues a decision on arrest and imposition of a fine on its own initiative or at the request of the prosecutor. As you can see, the above-mentioned measure is a «monetary recovery» in our legislation. The Criminal Procedure legislation of the Republic of Lithuania stipulates that this measure is a «fine»[11].

In the criminal procedure codes of the republics of Moldova and Azerbaijan[12], the provisions regarding the fine imposed by the participants in the criminal process for violation of the obligations assigned to them by law are similar. For example, part 184B. 4 of the Code of the Republic of Moldova. a person who has taken a minor under his jurisdiction in a corresponding criminal case may be subject to a court fine in the amount of 10 to 25 contractual obligations by a judge of criminal prosecution or a judicial instance, depending on the relevant circumstances, in case of violation of the obligations assigned to him by law[13].

Procedural fine – a punitive measure of a sanctioning nature, expressed as administrative liability for the commission of a criminal procedural offense. The amount of the fine is determined by the administrative legislation, and the grounds for its appointment are regulated by other articles of the Code of Turkmenistan (168, 370p.)[14].

In Germany, an administrative fine is provided as liability for non-compliance with the procedure of the court session during the proceedings. «Ordnungsgeld» — translated from German into Kazakh means» administrative fine». The criminal law (E int uhrungsgesetz zum Strafgesetzbuch-EGStGB) from 27. 01. 1877 G. (RGBl. 1 S. 77; BGBl. In accordance with article 300-1) III 6, a person who violates the procedure of the court session is fined in the amount of 5 to 1000 euros. And if the judge recognizes the misconduct as insignificant, then the guilty person is not subject to an administrative fine in accordance with §153.47 of this law [15].

In addition, in the course of the analysis of the provisions of the German Code of Criminal Procedure, it was found that responsibility for non-performance of their procedural duties lies only with the witness and the expert. In accordance with § 51 of the Code of Germany, in the event that a witness summoned to a court session in accordance with the relevant requirements does not attend the court session without satisfactory reasons, he is entitled to: forcibly bring the witness to the court session; compensation for losses incurred due to unexplained absenteeism and monetary recovery (accompanied by compensation for losses) are also imposed. If monetary recovery is not possible, arrest is carried out. At the same time, coercive measures are again applied in case of repetition of a procedural offense by a witness participating in the proceedings.

If the summoned witness timely reports satisfactory reasons for his absence from the meeting and reasonable explanations that the reason for being late for the meeting was circumstances beyond his control, then coercion and compensation for losses shall not be applied against him. It is competent to apply these measures within the framework of a preliminary investigation by a judge or a judge of the court conducting the hearing.

According to Article 77 of the German Code, monetary foreclosures can also be applied to the expert. If the expert, in accordance with his procedural duties, does not appear to the clerk on the call, refuses to issue an expert opinion, then he is charged with compensation for the financial losses collected in this situation and a monetary recovery is applied. If the clerk does not comply with the requirements of the person repeatedly, then measures to recover money and compensate for losses are again applied.

In accordance with §73 of this law, the expert determines the mutually agreed period for issuing an expert opinion, and if the expert misses the specified period, then in this case, as well as in relation to the expert, an independent recovery is applied. Prior to the appointment of a monetary recovery measure, a warning is sent to the expert and an additional period is given for issuing an expert opinion. If the specified period was repeatedly missed by the expert, the monetary recovery was re-applied to him.

According to §30 of the German law on administrative offenses, the appointment of monetary recovery in relation to organizations and institutions is allowed. And the procedural procedure for its appointment is determined in accordance with §444 of the Code of this country. In addition, the following actions are allowed, for example, in accordance with §30 of the German law on administrative offenses, monetary recovery against organizations and institutions can be assigned separately if there are grounds. And if a criminal case on the fact of a procedural offense has not been initiated or terminated, then §444 of the German Criminal Procedure Code in relation to the corresponding organizations and institutions, monetary foreclosures can be assigned. In this case, the prescribed measure of monetary recovery is expressed as non-criminal administrative liability.

So, for failure to fulfill the procedural duties assigned to them by the witness and specialist specified in the Code of Germany, the following procedural liability is provided: monetary recovery; compensation for losses; сот отырысында тәртіпті бұзғаны үшін қамаққа алу және мәжбүрлеп алып келу. And the measure of monetary recovery imposed on legal entities and organizations is expressed as an administrative fine and is applied by the court in its procedural or administrative procedural activities.

According to German law, a monetary foreclosure measure ensures the achievement of several goals. First, it provides for the influence of a person who has not fulfilled his / her duties in order to deprive him / her of his / her property. Secondly, this sanction pursues alternative goals, that is, it presupposes a careful attitude of any person participating in the proceedings to the tasks assigned to him, respect for them. In addition, it is assumed that this measure will affect persons who may participate in the proceedings in an alternative way in order to avoid subsequent offenses¹⁵.

Austria has provisions similar to the legislation of the countries mentioned above regarding the appointment of monetary foreclosures under the Code. The Austrian court is obliged to apply a monetary recovery measure against the perpetrator in case of violations of the procedure of the court session by the participants in the case during the proceedings. In accordance with the Austrian Code §235,236, such measures of influence may be applied, for example, to the defendant, witness, private prosecutor, victim, witness, expert, specialist and other persons who are not recognized as representatives of the authorities. And the decision made by the court must be executed soon and is not subject to appeal[16].

In Kazakhstan’s Criminal Procedure legislation, these cases are regulated in a completely different way. In accordance with Article 159, 160 of the Criminal Procedure Code of the Republic of Kazakhstan, the issue of attraction to monetary recovery is resolved in accordance with the Criminal Procedure Law. Kazakhstan’s legislation on the regulation of the procedure for the appointment of monetary recovery for non-performance of their procedural duties by participants in judicial proceedings and violation of the procedure for the court session determined by law by other persons in the courtroom is interpreted as follows, i.e., violation of the procedure at the court session is considered as a simple «violation» (not an administrative offense), and for this, monetary recovery is applied, which has an economic coercive nature of the criminal process.

Conclusion. Thus, Section 346B. 1 of the Criminal Code of the Republic of Kazakhstan states that in the event of a violation of discipline at a court session, disobedience to the orders of the presiding judge or committing other actions (omissions) that clearly indicate disrespect for the court, the presiding judge has the right to expel the guilty person from the courtroom or involve him in monetary recovery by establishing the fact of contempt of court. And if there are signs of another administrative offense or a criminal act in the action at this court session, then it is stated that the court will send materials to the prosecutor for initiating a criminal or administrative case in the appropriate manner. From these listed regulatory provisions, it can be understood that violations of the procedure for a court session, depending on the degree of severity, provide for administrative or criminal liability[17].

From this we have the opportunity to draw the following conclusions:

1. failure of the participants in the criminal case to fulfill their procedural duties specified in the Code is qualified by the legislation as a criminal procedural violation. The victim, witness, civil plaintiff, civil defendant, expert, specialist, translator, witness shall be brought to non-administrative procedural responsibility in this case. After all, their provisions on liability are reflected in the Criminal Procedure Law.
2. the actions of the participants in the court session and disobedience to the orders of the bailiff or presiding judge, expressed in violation of the procedure for the court session, should also be considered as a violation of the requirements of the Criminal Procedure Law. The presence of the fact of differentiation of these actions as administrative offenses at the same time does not change the initial conclusion. After all, the Criminal Procedure Law imposes specific requirements on the behavior of persons participating in the court session, which will always indicate a violation of the norms of criminal law. Warning of violators of the order of the court session of the legislation as measures ensuring these criminal procedural norms; expulsion from the courtroom; provides for a measure of procedural coercion in the form of monetary recovery.
3. failure to comply with the orders of the bailiff or the presiding officer may be an administrative offense at the same time as criminal procedural responsibility. Because, as already mentioned, the general norm on liability for disobedience to the orders of a bailiff or judge is formulated in relation to all types of judicial proceedings: that is, civil, criminal, administrative.

In the event that these actions occurred at a court session during the consideration of a criminal case, the use of monetary recovery at the same court session «without the trace» of the corresponding procedural violation increases the effectiveness. Therefore, the legislation does not require a judge to refer to the legislation of an administrative offense, in the process of resolving these cases, which regulates the procedure for appointing monetary recovery.

 

List of references

1. Новиков С. А. К вопросу о допустимости показаний Бергена при отсутствии у обвиняемого защитника // Российский следователь. — 2003. — № 4. — С. 26-28.
2. Коротков Н., Пылинкин А., Жуков А. Денежные наказания и штрафы в уголовном судопроизводстве // Сов. справедливость. — 1985. — № 8. — С. 12-13.
3. Ветрова Р. Н. Санкции в судебном праве. — М. 1991. — 157 с.
4. Быховский И. Е. Регламент производства следственных действий // Вопросы борьбы с преступностью. — 1974. — № 21. — С. 47-62.
5. Хафизов М. H. Денежное взыскание как мера уголовно-процессуального принуждения: Дис. … канд. юрид. наук. — М., 2007. — 168 с.
6. Булатов Б. Б., Николюк В. В. Уголовно-процессуальные принудительные меры (по главе 14 УПК России). — М., 2003. — 180 с.
7. Комментарий к Кодексу Российской Федерации об административных правонарушениях / Ред. кол.: И. И. Веремеенко, Н.Г. Салишева, Е. Н. Сидоренко, А. Якимов. — М., 2002. С. 548.
8. Azieri M. Introduction to Cuban Socialist Law // Review of Socialist Law. – 2020. – Vol. 6. – P. 153-163.
9. Францифоров Ю.В. Противоречия уголового процесса. — М., 2006. — 175 с.
10. Law of the Republic of Uzbekistan. Criminal Procedure Code of the Republic of Uzbekistan: adopted on September 22, 1994, but 2013-KSII (amended and updated as of June 23, 2022) // https://online.zakon.kz. 02/18/2022.
11. Criminal Procedure Code of Lithuania: adopted on March 14, 2002, but IKS-785 (amended by law of December 23, 2010 No. KSi-1264.) // https://wipolex.wipo.int/ru/text/ 202109. 02/18/2022.
12. Закон Азербайджанской Республики. Уголовно-процессуальный кодекс: принят 14 июля 2000 года, №907-ІЕ // http://ugolovnykodeks.ru/tag/ugolovno-processualnyj-kodeks-azerbajdzhanskoj-respubliki/. 19.08.2021.
13. Уголовно-процессуальный кодекс Республики Молдова: принят 14 марта 2003 г., №122-КСВ (изм. и доп. по состоянию на 30.03.2017 г.) / / https://online.zakon.kz/Document/?doc_id=30397729. 03.07.2021.
14. Комментарий к Уголовно-процессуальному кодексу Туркменистана. — Ашхабад, 2012. — 656 с.
15. Головненков П., Спица Н. С. Уголовно-процессуальный кодекс Федеративной Республики Германия — Strafprozessordnung (StPO): научно — практический комментарий и перевод текста закона. — Potsdam, 2012. — 408 s.
16. Gesamte Rechtsvorschrift für Strafprozeßordnung 1975, Fassung vom 22.02.2019 // https://www.wipo.int/wipolex/ru/legislation/details/18682
17. Сахарбай А. Ақшалай өндіріп алу шарасын соттық іс жүргізу кезеңінде қолданудың өзекті сұрақтары // Хабаршы-Вестник Карагандинской Академии МВД РК им. Б. Бейсенова. — 2023. — № 1 (79). — С. 135-140.

References

1. Novikov S. A. K voprosu o dopustimosti pokazanii Bergena pri otsutstvii u obvinyaemogo zaschitnika // Rossiiskii sledovatel’. — 2003. — №4. — S. 26-28.
2. Korotkov N., Pylinki A., Jukov A. Denejnye nakazaniya i shtrafy v ugolovnom sudoproizvodstve // Sov. Spravedlivost’. — 1985. — № 8. S. 12-13.
3. Vetrova G. N. Sankcii v sudebnom prave. — M., 1991. — 157 s.
4. Bihovskii I. E. Reglament proizvodstva sledstvennyh deistvii // Voprosy bor’by s prestupnost’yu. — 1974. — №21. — S. 47-62.
5. Khafizov M. KH. Denezhnoye vzyskaniye kak mera ugolovno-protsessual’nogo prinuzhdeniya: Dis. … kand. yurid. nauk. — M., 2007. — 168 s.
6. Bulatov B. B., Nikolyuk V. V. Ugolovno-protsessual’nyye prinuditel’nyye mery (po glave 14 UPK Rossii). — M., 2003. — 180 s.
7. Kommentariy k Kodeksu Rossiyskoy Federatsii ob administrativnykh pravonarusheniyakh / Red. kol.: I. I. Veremeyenko, N.G. Salisheva, Ye. N. Sidorenko, A. Yakimov. — M., 2002. S. 548.
8. Azir M. Introduction to Cuban Socialist Law // Review of Socialist Law. — 2020. — №. 6. — P.153-163.
9. Fransiforov ІU.V. Protivorechiya ugolovnogo processa. — M., 2006. — 175 s.
10. Law of the Republic of Uzbekistan. Criminal Procedure Code of the Republic of Uzbekistan: adopted on September 22, 1994, but 2013-KSII (amended and updated as of June 23, 2022) // https://online.zakon.kz. 02/18/2022.
11. Criminal Procedure Code of Lithuania: adopted on March 14, 2002, but IKS-785 (amended by law of December 23, 2010 No. KSi-1264.) // https://wipolex.wipo.int/ru/text/ 202109. 02/18/2022.14.
12. Ugolovno-processual’nyi kodeks Azerbaidjanskoi Respubliki: prinyat 14 iyulya 2000 goda, №907-ІE // http://ugolovnykodeks.ru/tag/ugolovno-processualnyj-kodeks-azerbajdzhanskoj-respubliki/. 19.08.2021
13. Ugolovno-processual’nyi kodeks Respubliki Moldova: prinimayut 14 marta 2003 goda, №122-KSV (po sostoyaniyu na 30.03.2017 g.) // https://online.zakon.kz/Document/?doc_id=30397729.
14. Kommentarii k Ugolovno-processual’nomu kodeksu Turkmenistana. — Ashhabad, 2012. — 656 s.
15. Golovnenkov P., Spisa N.S. Ugolovno-processual’nyi kodeks Federativnoi Respubliki Germaniya — Strafprozessordnung (StPO): nauchno-prakticheskii kommentarii i perevod teksta zakona. — Potsdam, 2012. — 408 s.
16. Gesamte Rechtsvorschrift für Strafprozeßordnung 1975, Fassung vom 22.02.2019 // https://www.wipo.int/wipolex/ru/legislation/details/18682
17. Saxarbay A. Aqşalay öndirip alw şarasın sottıq is jürgizw kezeñinde qoldanwdıñ özekti suraqtarı // Xabarşı-Vestnïk Karagandïnskoy Akademïï MVD RK ïm. B. Beysenova. — 2023. — № 1 (79). — S. 135-140.