Commentary on Article 171. Securing a Civil Claim of the Criminal Procedure Code of the Republic of Kazakhstan
Upon the filing of a civil claim by a civil claimant, the criminal prosecution authority is obliged to take measures to secure it. If such measures have not been taken, the court, when preparing for the main court hearing, shall, in accordance with Article 325 of this Code, oblige the criminal prosecution authority to take them. If a civil claim is filed at the trial stage, the court shall issue a ruling on securing the civil claim.
As a general rule, the law imposes the obligation to take measures to secure compensation for harm caused by a criminal offence or an act committed by an insane person on the criminal prosecution authorities. This is entirely logical, since failure to take measures in this regard at the pre-trial investigation stage may result in unlawful actions by the owner or possessor of the property before the commencement of court proceedings in respect of property intended to satisfy the civil claim or for the possible confiscation of property in the criminal case.
Measures to secure a civil claim filed in criminal proceedings include, first and foremost, the seizure of movable and immovable property in accordance with the procedure prescribed by Article 161 of the CPC (see the commentary on the provisions of this Article).
At the stage of preparing a criminal case for hearing, the judge shall have the right to oblige the criminal prosecution authorities to take measures to secure compensation for damage caused by the crime and the possible confiscation of property, if such measures were not taken during the investigation of the criminal case (paragraph 6 of Article 320 of the CPC).
A somewhat different procedure for securing a civil claim is established during the main court hearing: the judge's ruling on the seizure of property as a measure to secure the claim shall be enforced by a judicial enforcement officer in accordance with the rules set out in Parts 7–8 of Article 163 of the CPC, Article 158 of the Civil Procedure Code, Articles 31–36 and 62–67 of the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Judicial Enforcement Officers”, also taking into account the clarifications provided for in Regulatory Resolution No. 2 of the Supreme Court of the Republic of Kazakhstan dated 12 January 2009 “On Taking Interim Measures in Civil Cases”.
Owners or other possessors of property shall have the right to file a claim for the release of property from seizure (exclusion from the inventory) within the framework of criminal proceedings.
The fact is that, pursuant to Part 9 of Article 23 of the Civil Procedure Code, claims for the release of property from seizure (exclusion from the inventory) in respect of property belonging to persons and seized:
- by a criminal prosecution authority during the investigation of a criminal case;
- on the basis of a court judgment (ruling) on the confiscation of property specifying the items subject to confiscation, as well as on the transfer to state ownership of property obtained illegally or acquired using funds obtained illegally, or property that constitutes an instrument or means of committing a criminal offence;
- on the basis of a court ruling on the confiscation of an item or instrument used to commit an administrative offence, shall not be subject to consideration under the procedure of civil proceedings.
The lawfulness of actions taken by the authority conducting criminal proceedings or proceedings in a case concerning an administrative offence, in matters relating to the seizure, confiscation, and transfer of property to state ownership, shall be subject to review in accordance with the procedure established by the Criminal Procedure Code of the Republic of Kazakhstan and the Code of the Republic of Kazakhstan on Administrative Offences.
Following the generalisation of judicial practice in cases concerning the release of property from seizure (exclusion from the inventory), the Supreme Court, at one time, in Resolution No. 7 dated 23 September 1988 “On the Progress Made by the Courts of the Republic in Implementing Legislation and Resolutions of the Plenum of the Supreme Court of the USSR and the Plenum of the Supreme Court of the Kazakh SSR when Considering Cases on the Release of Property from Seizure (Exclusion from the Inventory)” (repealed), drew the courts' attention to the fact that the operative part of a judgment granting a claim must specifically indicate: which items (an exact list of them, specifying the price of each item) are to be released from seizure, in whose favour (surname, first name, patronymic), on what legal basis (ownership, possession, or as a share in the joint common property of spouses or members of a collective farm household), from which inventory they are to be excluded, and which property is allocated to the debtor (convicted person). The wording of the operative part of the judgment must be equally specific when dismissing a claim (paragraph 5). When lifting the seizure of indivisible property, the court judgment must contain reasoning regarding the claimant's need for such property (a car, motorcycle, and so on). If indivisible property remains in the inventory, the court judgment must contain an indication that the share due to the claimant shall be recovered in their favour from the amount received upon its sale (paragraph 6). It should be assumed that taking these recommendations into account would also be useful at the present time.
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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