Comment to article 408. Initiation of a private prosecution The Criminal Procedure Code of the Republic of Kazakhstan

A private prosecution is initiated by a person (several persons) by filing a complaint about bringing a person to criminal responsibility with the court in compliance with the rules on jurisdiction. If a complaint is filed with the body of inquiry, investigator or prosecutor, it must be sent to court.

The complaint must contain the name of the court to which it was filed, a description of the event of the criminal offense, the place and time of its commission with evidence, a request to the court to accept the case for trial, information about the person being prosecuted, and a list of witnesses who are required to be called to court. The complaint is signed by the person who submitted it. Anonymous complaints are not accepted for production.

The complaint may also contain a request for consideration of a civil claim if a statement of claim and the necessary materials in support of the claims are attached to the complaint.

The complaint is filed with the court in accordance with the territorial jurisdiction of the case, with copies according to the number of persons against whom a private prosecution case is being initiated.

If a private prosecution is initiated by several persons against the same person, they file one complaint jointly or separately independently of each other.

From the moment the court accepts the complaint for its proceedings, the person who filed it is a private prosecutor and a victim, and the rights provided for in Article 72 and parts three and four of Article 410 of this Code must be explained to him, about which a protocol is drawn up, signed by the judge and the person who filed the complaint.

If several persons are authorized to institute private charges against the same criminally punishable act and, at the request of one of them, it has already been initiated, the remaining persons have the right to enter into proceedings that have already begun. In this case, it is not necessary to initiate independent proceedings at the request of each of these persons.

The accused has the right to present a counter-accusation to the accuser if it is related to the subject of the criminally punishable act on which proceedings have been initiated. The accusation and the counter-accusation must be resolved simultaneously. The withdrawal of the charge does not affect the counter-charge proceedings.

A private charge cannot be reopened if it has previously been withdrawn.

If, in cases of private-public and public prosecution, a criminal case is initiated by the criminal prosecution authorities, if there are grounds and grounds, then a private prosecution case is initiated by a person (several persons) by filing a complaint to the court about bringing the person to criminal responsibility. This special procedure for initiating criminal proceedings is one of the essential features of private prosecution cases.

The reason for the initiation of private prosecution cases is the complaint of the victim: an individual who has reached the age of 18, a legal entity, legal representatives and representatives of the victim. Private prosecution proceedings may also be initiated by the prosecutor in the absence of a complaint from the victim, if the act affects the interests of a person who is in a helpless or dependent state, or who is unable to independently exercise his rights for other reasons. When submitting a complaint to the body of inquiry, investigator, prosecutor, it is subject to referral by jurisdiction after registration in the Unified Register of Pre-Trial Investigations. In cases of private prosecution, the procedural document that initiates a criminal case is the victim's complaint itself.

When receiving a complaint, the judge must make sure that it contains all the necessary data for its proper resolution, in particular: when, by whom and where the illegal act was committed, what exactly it was expressed in, and what confirms the victim's request to bring the person against whom the complaint was filed to criminal responsibility. An oral or anonymous complaint from the victim will not be accepted for trial.

When a request for consideration of a civil claim is indicated in the complaint, the burden of proof is placed on the civil plaintiffs (private prosecutors), who must provide the court with relevant evidence of property damage or moral damage. The court assists the private prosecutor in collecting evidence in a civil claim, if he requests it.

The complaint about bringing a person to criminal responsibility must be accompanied by copies of this complaint according to the number of persons against whom the case is being initiated. A copy of the victim's complaint must be served (sent) to each defendant within seven days. Failure to comply with these requirements, as a rule, leads to a significant violation of the defendant's right to defense.

If charges are brought by several persons against the same person, they file a complaint independently of each other. At the same time, the law does not restrict persons affected by the same actions of the same person to file a general complaint with the court.

From the moment the court accepts the complaint for its proceedings, the person who filed it acquires the status of a private prosecutor with the appropriate rights, which the judge must explain to him. A protocol is drawn up on this, which is signed by the judge and the person who filed the complaint.

The initiation of a case on a private charge by one person does not prevent other persons who have suffered from the same actions of the accused from joining the already initiated proceedings as accusers.

One of the features of private prosecution proceedings is the possibility of filing a counter-accusation if it is related to the act for which proceedings have been initiated. The accusation and the counter-accusation must be resolved simultaneously. In this case, both sides act as both accusers and defendants. The withdrawal of a complaint by one of the parties does not prevent the consideration of the case against the other party.

The withdrawal of a private charge entails the mandatory termination of the proceedings. The law does not allow the re-initiation of proceedings on the same charge.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

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