Commentary on Article 166. Civil Claims Considered in Criminal Proceedings of the Criminal Procedure Code of the Republic of Kazakhstan

• 1. Criminal proceedings shall consider civil claims brought by individuals and legal entities for compensation for property and moral damage directly caused by a criminal offence or a socially dangerous act committed by an insane person, as well as for reimbursement of funeral expenses, expenses for the treatment of the victim, amounts paid to the victim as insurance compensation, benefits or pension, and expenses incurred in connection with participation in the proceedings of inquiry, pre-trial investigation and court proceedings, including expenses for representation.
• 2. The proof of a civil claim brought in a criminal case shall be carried out in accordance with the rules established by this Code. If legal relations arising in connection with the civil claim brought are not regulated by this Code, the provisions of civil procedural legislation shall apply to the extent that they do not contradict this Code.
• 3. If the persons specified in the first part of this Article have not brought a civil claim during the proceedings in a criminal case, or have withdrawn it after bringing it, or if it has been left without consideration by the court, they shall have the right to bring it in accordance with the procedure of civil proceedings. The claimant's application for withdrawal of a civil claim or for leaving it without consideration shall be resolved by the court in accordance with this Code and the provisions of civil procedural legislation.
• 4. A decision on a civil claim adopted in accordance with the procedure of civil proceedings shall constitute grounds preventing the bringing, during criminal proceedings, of the same claim against the same persons on the same grounds.
• As we noted above, the imposition of seizure on property is intrinsically connected with issues relating to a civil claim, since it is aimed at securing such claim in a criminal case. The damage suffered by the victim in a criminal case and other expenses specified in Part 1 of Article 166 of the CPC objectively constitute the basis for filing any civil claim. Therefore, a civil claim within the meaning of the provisions of Parts 1—2 of Article 166 of the CPC constitutes part of the materials of a criminal case, is brought in the criminal case, and is based on the same evidence used in proving circumstances relevant to the proper resolution of the criminal case: the nature and amount of damage caused by a criminal offence constitute an essential element of the subject matter of proof in any criminal case, and the determination and full compensation thereof affect the content of the criminal liability and punishment of the person (subparagraph 7) of Part 1 of Article 113 of the CPC). In this regard, the civil claim shall be considered on its merits by the same court conducting the court hearing in the criminal case in which the claim was brought.
• A civil claim represents monetary demands (the value of the claim) made by a civil claimant, as a rule, a person (individual or legal entity) who has suffered as a result of a criminal offence, against the perpetrator thereof or against persons bearing financial liability for their actions that caused damage (property, physical and moral). A civil claim in favour of a victim of a criminal offence may be brought by other persons (for example, the prosecutor, legal representatives, representatives) or asserted by other entities that have also suffered damage as a result of the commission of the act (for example, insurance organisations).
• Where proven, damage caused both by a criminal offence and by a socially dangerous act committed by an insane person shall be subject to compensation, in full or in part. Other civil claims arising from circumstances established in a criminal case shall be considered in the same proceedings as the criminal case if they are brought for the purpose of reimbursement of expenses incurred for the burial and treatment of the victim, as well as for the participation of the victim himself or herself and their representative in the proceedings of inquiry, pre-trial investigation and court proceedings. Recourse claims may be considered simultaneously with a criminal case only where they are brought for the purpose of compensation for amounts paid to the victim as insurance compensation, benefits or pension in connection with damage caused to the victim by a criminal offence or an act prohibited by criminal law committed by an insane person (paragraph of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 20 June 2005 No. 1 “On Consideration of Civil Claims in Criminal Proceedings”).
• A civil claim shall be subject to full or partial satisfaction if the court renders a conviction in the criminal case or issues a ruling on the application of a compulsory medical measure to an insane person. The decision on full or partial satisfaction of the claim shall be made by the court on the basis of whether the nature and amount of the damage caused and the circumstances under which it was caused have been proven.
• A civil claim shall also be subject to full satisfaction when a ruling terminating the proceedings in the case is issued on the grounds specified in subparagraphs 3), 4) of Part 1 of Article 35 of the CPC. In the event that the suspect, accused, defendant or their legal representatives, etc., dispute the amount of damage caused, the proceedings in the case shall continue in accordance with the rules provided for in Part 4 of Article 35 of the CPC, with the civil claim being resolved on the merits of the dispute.
• The grounds, conditions, scope and method of compensation for damage caused by a criminal offence, when considering a civil claim together with a criminal case, shall be determined in accordance with the provisions of civil, labour and other legislation. The general grounds for liability for causing damage are established by Chapter 47 of the Special Part of the Civil Code of the Republic of Kazakhstan (paragraph 26 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 20 June 2005 No. 1 “On Consideration of Civil Claims in Criminal Proceedings”).
• The obligation to prove the following at the court hearing: the grounds for the civil claim; the type of damage caused by the criminal offence; the nature, amount and degree of the damage; the person to whom the damage was caused and who will act as the civil claimant; the person who must bear liability for the damage caused and will act in the case as the civil defendant; the conduct of the person who suffered the damage at the time the criminal offence was committed; and the property status of the suspect or accused (civil defendant), shall be imposed on the prosecutor in cases of private-public and public prosecution and criminal prosecution. The burden of proof in respect of a civil claim in cases of private prosecution (Article 410 of the CPC) shall be imposed on civil claimants (private prosecutors), who must submit to the court evidence necessary to protect their rights in connection with the infliction of property damage or moral harm and, where this is impossible, inform the court of where such evidence is located and petition for its obtaining. The functions of the court consist in providing assistance to the private prosecutor in collecting evidence in the civil case if the private prosecutor so requests (paragraph 13 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 20 June 2005 No. 1 “On Consideration of Civil Claims in Criminal Proceedings”).
• Since a civil claim arising from the commission of a crime may be the subject matter of both criminal and civil proceedings, the initial materials (the statement of claim and its attachments) by which a person's claims are formalised shall be drawn up on the basis of and in accordance with the procedure provided for by the provisions of the CPC (see Articles 148—149), which do not contradict the provisions of the CPC (Article 73, Part 3 of Article 166, Part 5 of Article 167 of the CPC).
• The bringing of a civil claim in criminal proceedings is always regarded as a right of the victim, except in certain cases where the prosecutor has a direct obligation to do so. Therefore, for various reasons, the victim may transfer the bringing of such claim to the sphere of civil proceedings (failure to bring the claim in the given criminal case, withdrawal of the claim from the criminal case, or the claim not being considered by the court in the criminal case). This circumstance precludes a repeated application with a claim in the criminal case on the same grounds in respect of which a court decision has been rendered in civil proceedings (Part 4 of Article 166 of the CPC).
• The provisions of Part 2 of Article 166 of the CPC also concern such an issue of criminal procedure as confiscation proceedings prior to the rendering of a judgment (Chapter 71 of the CPC). Thus, where circumstances indicating that the suspect or accused has concealed property by re-registering it in the names of other persons are established, the person conducting the pre-trial investigation shall apply to the prosecutor with a motion to resolve the issue of applying to the court, in the interests of the State or the victims in the criminal case, with a claim to invalidate transactions (purchase and sale, donation, transfer for lease, transfer into trust management and other transactions) in accordance with the procedure of civil proceedings (Part 3 of Article 668 of the CPC). They are also connected with such issues of civil procedure that have not been reflected in the CPC, including representation in court by virtue of an assignment, formalisation of the powers of a representative (Articles 57—61 of the CPC); grounds for exemption from proof (Part 3 of Article 76 of the CPC); and the form and content of a statement of claim and its attachments (Articles 148—149 of the CPC).

Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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