Commentary on Article 109. The Right to Demand Recognition as a Participant in Proceedings of the Criminal Procedure Code of the Republic of Kazakhstan
- 1. Persons who are not participants in criminal proceedings shall, where the grounds provided for by this Code exist, have the right to demand recognition of themselves as suspects, victims, private prosecutors, civil plaintiffs, civil defendants, their legal representatives and representatives. Applications (motions) submitted by the said persons shall be considered by the body conducting the criminal proceedings no later than three days from the date of their receipt. The applicant shall be immediately notified of the decision taken, and a copy of the relevant resolution shall be sent to them.
- 2. The applicant shall have the right to appeal to the prosecutor, or to the court, against a refusal to grant their motion or the postponement of its consideration within five days of receiving a copy of the relevant resolution. If a copy of the resolution has not been received within ten days from the date of filing the complaint, the applicant shall have the right to appeal the inaction to the court or apply to the prosecutor with a request to be recognized as a participant in the proceedings.
- A close relative or spouse of a person who has died or lost the ability to consciously express their will as a result of a criminal offence may demand to be recognized as a victim if they wish to become that person's legal successor. The said motion shall be considered by the body conducting the criminal proceedings in accordance with the procedure provided for in Part One of this Article.
- Part 1 of Article 109 of the CPC regulates the list of categories of participants in criminal proceedings that persons who are not participants in such proceedings, for various reasons, are entitled to become if the relevant grounds exist. For example, this may be a person whose report of a criminal offence has been refused acceptance and who, consequently, cannot act as a victim in the case; an accused person whose counter-complaint in a private prosecution case has been unjustifiably rejected by the court and who, consequently, cannot simultaneously act as a private prosecutor and a defendant in the same case, and so forth. The right of persons who are not participants in criminal proceedings to demand recognition as participants in the proceedings (a suspect, victim, private prosecutor, civil plaintiff, civil defendant, their legal representative or representative) complies with the requirements of the principle of legality and constitutes an additional procedural safeguard for the fullest possible protection of individual rights and interests during proceedings in a case. This right may be exercised (invoked), depending on the procedural status to be acquired by the participant in criminal proceedings, at any stage of the criminal proceedings, but before the commencement of the judicial investigation in the main court hearing.
- At the same time, taking into account the importance of a person acquiring the relevant procedural status in a case as quickly as possible, the law establishes a period of no more than three days for making a decision on the applicant's motion, with immediate notification of the applicant of the resolution adopted, so that the applicant may appeal it in the event of disagreement.
- The rules governing appeals to the prosecutor or the court against a decision refusing to grant a motion or postponing its consideration are set out in Part 2 of Article 109 of the CPC and are as follows.
- A decision made during pre-trial investigation by an official of the body conducting the criminal proceedings refusing to grant a motion or postponing its consideration may be appealed to the prosecutor or the investigating judge within five days of its receipt. If the applicant has not received a decision on the motion after ten days have elapsed, they shall be entitled to apply directly to the prosecutor or the investigating judge with a motion requesting recognition as a participant in criminal proceedings.
- The submission and consideration of motions for recognition as a participant in the proceedings at the judicial stages shall be permitted during the preliminary hearing of the case (Article 321 of the CPC) or during the preparatory part of the court hearing (Article 362 of the CPC). A person whose motion has been denied by the court shall be entitled to submit it again at a later stage, but before the judicial investigation begins. Failure to recognize a person as a participant in the proceedings may constitute grounds for an appeal or a motion by the prosecutor under the appellate procedure, as well as for a motion, protest or submission under the cassation procedure.
- Particular attention of the law is devoted to the right to recognize as victims family members and close relatives of a person who has died or lost the ability to consciously express their will as a result of a criminal offence, as commented on above (Part 11 of Article 71, Part 2 of Article 109 of the CPC).
- In the event of the death of a victim and the absence of close relatives, a spouse, adoptive parents or adopted children, the victim's rights may be represented in criminal proceedings by guardians, trustees, and representatives of the institutions, organizations and persons under whose care or maintenance the victim was placed. Pursuant to Paragraph 11 of Article 7 of the CPC, close relatives are parents, children, adoptive parents, adopted children, full and half brothers and sisters, grandfather, grandmother and grandchildren (Part 1 of Article 76 of the CPC, Paragraph 6 of Regulatory Resolution No. 2 of the Supreme Court dated April 24, 1992, “On the Practice of Applying Legislation Regulating the Rights and Obligations of Persons Affected by Criminal Offences”).
- In the event of a citizen's death as a result of unlawful actions by bodies conducting criminal proceedings, the right to compensation for harm in accordance with the established procedure shall pass to their heirs, while the right to receive pensions and benefits whose payment had been suspended shall pass to those family members who belong to the category of persons entitled to benefits in connection with the loss of a breadwinner (Part 3 of Article 38 of the CPC).
- It should be noted that the right to demand recognition as a participant in the proceedings within the meaning of the provision of Part 1 of Article 109 of the CPC may also concern other categories of persons.
- For example, where the relevant grounds exist, a person shall have the right to demand recognition as the legal representative of a minor suspect, accused, defendant or convicted person, a victim or an incapacitated person, or as a representative of a victim, civil plaintiff, civil defendant or private prosecutor (Articles 75–77 of the CPC).
- A refusal, at the pre-trial investigation stage, to recognize a natural or legal person as a civil plaintiff shall not deprive that person of the right to file a civil claim before the commencement of the judicial investigation and to submit a motion for recognition as a civil plaintiff (Article 362 of the CPC). The court shall not have the right to refuse motions to examine persons who have appeared in court at the initiative of the parties as experts or witnesses during the court hearing (Part 4 of Article 362 of the CPC), and so forth.
- Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishеvich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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