Commentary on Article 169. Return of the Statement of Claim, Withdrawal of the Claim of the Criminal Procedure Code of the Republic of Kazakhstan
- 1. A civil plaintiff shall have the right to submit an application for the return of the statement of claim at any stage of the criminal proceedings. An application for the return of the statement of claim shall be submitted in writing or in the form of an electronic document and attached to the criminal case. If an application for the return of the statement of claim is made during a court hearing, it shall be entered into the minutes of the court hearing.
- 2. An application by a civil plaintiff to withdraw the claim at the pre-trial stage of criminal proceedings shall be submitted in writing or in the form of an electronic document and attached to the materials of the criminal case. If the civil plaintiff's withdrawal of the claim is expressed during a court hearing, it shall be entered into the minutes of the court hearing.
- 3. The court may accept the withdrawal of the claim by issuing a ruling at any time during the judicial proceedings, but before the court retires to the deliberation room to deliver the verdict.
- Before accepting the withdrawal of the claim, the court shall explain to the civil plaintiff that acceptance of the withdrawal of the claim entails termination of the proceedings in respect thereof and precludes a repeated application to the court concerning a dispute between the same parties, regarding the same subject matter and on the same grounds, including under the procedure of civil proceedings.
- 4. The court shall not accept the civil plaintiff's withdrawal of the claim if such actions contradict the law or violate anyone's rights and legally protected interests, in which case it shall issue a reasoned ruling.
- Note. Article 169 was amended by Law of the Republic of Kazakhstan dated 31 October 2015 No. 378-V (effective from 1 January 2016).
The provisions of Article 169 of the CPC regulate two possible courses of action available to a civil plaintiff in respect of the civil claim filed by them during the pre-trial investigation and directly at the court hearing: both the return to the plaintiff of the statement of claim previously submitted by them, which they have decided to withdraw without abandoning the claim, and the complete withdrawal of the claim previously filed by them in the criminal case are permitted. In both cases, the civil plaintiff's application may be submitted in writing or in the form of an electronic document (and attached to the case materials), or made orally during a court hearing (with the fact thereof being recorded in the minutes of that hearing).
Withdrawal of a civil claim, submitted in writing or in the form of an electronic document (at the pre-trial investigation stage), or expressed orally (during the judicial proceedings), may be declared exclusively by the civil plaintiff or by the prosecutor who filed the claim in the interests of a particular person, at any stage of the criminal proceedings, but before the court retires to the deliberation room (Parts 1–3 of Article 169 of the CPC).
On the issue of accepting or refusing to accept the withdrawal of a civil claim, the body conducting the criminal proceedings shall issue a reasoned ruling (Parts 1 and 3 of Article 169 of the CPC). Before accepting the withdrawal of the claim, the court shall explain to the plaintiff and the parties the consequences of the relevant procedural decision of the court adopted upon the plaintiff's application for complete withdrawal of the claim (Part 3 of Article 169 of the CPC).
The provisions of Part 4 of Article 169 of the CPC require the grounds for the court's ruling refusing to accept the civil plaintiff's withdrawal of the claim to be substantiated. Thus, a complete or partial withdrawal of the claim declared by the representative of the civil plaintiff shall not be accepted. This is not included among their legal powers (Part 4 of Article 76 of the CPC, Paragraph 1 of Article 61 of the CPC). Likewise, withdrawal of a claim previously declared by a legal representative in favour of a minor, as well as a person declared legally incompetent in accordance with the established procedure, shall not be accepted (Article 63 of the CPC).
Commentary of 2020 on 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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