Commentary on Article 71. The Victim of the Criminal Procedure Code of the Republic of Kazakhstan

1. A person in respect of whom there are grounds to believe that moral, physical or property damage has been directly caused to them by a criminal offence shall be recognized as a victim in criminal proceedings.

1-1. The person conducting the pre-trial investigation shall immediately recognize a person as a victim in the cases provided for in the first part of this Article.

2. A person shall also be recognized as a victim in cases where the damage was caused to them by an act prohibited by the Criminal Code of the Republic of Kazakhstan and committed by an insane person.

3. A person shall be recognized as a victim in criminal proceedings after the issuance of the relevant resolution. If, during the criminal proceedings, it is established that there are no grounds for the person to retain this status, the body conducting the criminal proceedings shall, by its resolution, terminate the person's participation as a victim.

4. The victim shall be informed of the right to file a civil claim in criminal proceedings, and compensation shall be ensured for property damage caused by the criminal offence, as well as for expenses incurred in connection with their participation in criminal proceedings, including expenses for a representative, in accordance with the rules established by this Code.

5. A victim's claim for compensation for moral damage shall be considered in criminal proceedings. If such a claim has not been filed by the victim or has been left without consideration, the victim shall have the right to file it in civil proceedings.

6. The victim shall have the right to:

1) know about the suspicion and charges brought against them;

2) give testimony in their native language or in a language they speak;

3) submit evidence;

4) file motions and challenges;

5) use the free assistance of an interpreter;

6) have a representative;

7) receive property seized from them by the criminal prosecution authority as a means of proof or submitted by them personally, as well as property belonging to them that was seized from the person who committed an act prohibited by criminal law, and receive original documents belonging to them;

8) reconcile with the suspect, accused or defendant, including through mediation, in cases provided for by law;

8-1) express consent to the application of summary proceedings in a case concerning a criminal misdemeanour or a minor-gravity crime;

9) familiarize themselves with the records of investigative actions conducted with their participation and submit comments on them;

10) with the permission of the investigator or inquiry officer, participate in investigative actions conducted at their request or at the request of their representative;

11) upon completion of the pre-trial investigation, familiarize themselves with all the materials of the case and make extracts of any information from them and in any amount, with the exception of information constituting state secrets;

12) file motions requesting the provision of security measures for themselves and their family members, non-disclosure of circumstances of their private life, and the imposition of a prohibition on the suspect approaching them;

13) receive copies of resolutions recognizing them as a victim or refusing such recognition, terminating the pre-trial investigation, the indictment, as well as copies of the judgments and rulings of the courts of first-instance, appellate and cassation jurisdictions;

14) participate in the judicial examination of the case in the courts of first-instance, appellate and cassation jurisdictions;

make statements during judicial pleadings;

15) maintain the prosecution, including in the event that the public prosecutor withdraws the charges;

16) familiarize themselves with the record of the court hearing, while having the right to affix their signatures at the end of the record or, when reviewing part of the court hearing record, at the end of that part; where audio or video recording of the court hearing is used, to sign at the end of the record and submit comments on the record;

17) lodge complaints against the actions (inaction) of the body conducting the criminal proceedings;

appeal the judgment and rulings of the court;

18) be informed of complaints, motions of the prosecutor and protests filed in the case, submit objections thereto and participate in their consideration;

19) protect their rights and legitimate interests by other means not contrary to the law;

20) know of the parties' intention to conclude a procedural agreement, its terms and consequences, propose their own terms for compensation of the damage caused by the crime, or object to the conclusion of such an agreement;

21) receive compensation in accordance with the legislation of the Republic of Kazakhstan on the Victim Compensation Fund (Note of the Republican Center for Legal Information! Paragraph 6 is to be supplemented with subparagraph 23) in accordance with Law of the Republic of Kazakhstan No. 132-VI dated January 10, 2018 (to be brought into force from July 1, 2018).

In the cases provided for in part two of Article 76 of this Code, legal assistance shall be provided to the victim free of charge.

7. The victim, and in the event of their death, their legal successors, shall have the right to receive monetary compensation from budgetary funds for property damage caused by an especially grave crime, if the convicted person has insufficient property to compensate for the damage caused by such crime. In this case, the issue of payment of monetary compensation from budgetary funds shall be resolved by the court that rendered the judgment, upon the application of the victim or their legal successor. In the cases specified above, the victim shall have the right to compensation for damage in full, provided that the amount of damage does not exceed one hundred and fifty monthly calculation indices.

8. The victim shall be obliged to appear when summoned by the body conducting the criminal proceedings, truthfully report all circumstances of the case known to them and answer the questions asked; not disclose information about circumstances known to them in connection with the case; and comply with the established procedure during investigative actions and court hearings.

9. If the victim fails to appear when summoned without valid reasons, they may be subjected to compulsory attendance in accordance with the procedure provided for in Article 157 of this Code, and a monetary penalty may be imposed on them in accordance with the procedure provided for in Article 160 of this Code.

10. For refusing to give testimony and for giving knowingly false testimony, the victim shall bear criminal liability in accordance with the law.

11. In cases involving crimes resulting in the death of a person, the rights of the victim provided for in this Article shall be exercised by the close relatives and spouse of the deceased. If several persons claim to be granted the rights of a victim and moral damage has been caused to them by the criminal offence, all of them may be recognized as victims or, by agreement among them, one of them may be recognized as a victim.

12. A legal entity that has suffered property damage as a result of a criminal offence may be recognized as a victim. In this case, the rights and obligations of the victim shall be exercised by the representative of the legal entity.

Footnote. Article 71 was amended by the following Laws of the Republic of Kazakhstan: dated October 31, 2015 No. 378-V (to be brought into force on January 1, 2016); dated July 11, 2017 No. 91-VI (to be brought into force upon the expiration of ten calendar days after the date of its first official publication); dated December 21, 2017 No. 118-VI (to be brought into force upon the expiration of ten calendar days after the date of its first official publication); dated January 10, 2018 No. 132-VI (to be brought into force on July 1, 2018); dated December 27, 2019 No. 292-VI (see Article 2 for the procedure for its entry into force).

If the fact of a criminal offence has occurred and is recorded in the materials of the criminal case, it is irrelevant whether its perpetrator is known or unknown, since the emergence of such a participant in criminal proceedings as the victim is objectively necessary, because any act always causes harm to someone. As a rule, there are no “harmless” acts. This alone makes it evident that the victim is a key procedural figure requiring attentive treatment of their person both by the bodies conducting criminal proceedings and by other participants in criminal proceedings. It was precisely this circumstance that necessitated the inclusion in the CPC of a separate general article devoted to the legal capacity of a person who has suffered from a criminal offence or an act committed by an insane person (Parts 1–2 of Article 71 of the CPC).

The provisions of Parts 1–2 of Article 71 of the CPC distinguish three types of damage caused to a victim by a criminal offence, which may occur simultaneously or in various combinations: moral, physical and property damage; moral and property damage; moral and physical damage; physical and property damage; moral damage. For example, a victim of robbery committed by either a sane or an insane person may simultaneously suffer all three types of damage: moral (ethical, internal, emotional and psychological); physical (injury to the body and its organs); property (damage to, destruction or theft of property).

3. For a person to be recognized as a victim, a certain body of evidence recorded in the materials of the criminal case must be available. Information about this person and the nature and extent of the damage may be contained in applications or reports concerning a criminal offence, as well as in records of urgent investigative actions: the detention and interrogation of a suspect, interrogations of witnesses, inspection of the crime scene, etc. Only after evidence has been collected that identifies, with the necessary degree of detail and accuracy, the person who must be recognized as a victim, and after a resolution recognizing them as a victim has been issued, does that person acquire procedural rights and become subject to procedural obligations. Upon issuance of the resolution, the victim must be informed of their rights and obligations, including the right to receive qualified legal assistance and, in the cases provided for in Part 2 of Article 76 of the CPC, the right to receive such assistance free of charge.

In this regard, the Supreme Court emphasized that the issuance of a resolution recognizing a person as a victim and the explanation of their legal status, for the purpose of ensuring the full and timely exercise of their rights, must be carried out without delay. The resolution recognizing a person as a victim must indicate what kind of damage has been caused to them. Where several types of damage have been caused, this circumstance must be reflected in the resolution (Paragraph 4 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 Who Have Suffered from Criminal Offences”, Part 1-1 of Article 71 of the CPC).

Continuing the discussion of who may be recognized as a victim, the Supreme Court clarified in the above-mentioned regulatory resolution that a victim is a person who has directly suffered moral, physical or property damage as a result of a socially dangerous act, regardless of whether the person who committed that act has been identified or held liable. In cases involving unfinished criminal activity (preparation for a crime, attempted crime), a person shall be recognized as a victim where moral, physical or property damage has actually been caused. A person may not be recognized as a victim if the moral, physical or property damage occurred as a result of voluntary consent to the infliction of such damage (for example, in cases of seeking an illegal abortion, giving a bribe, etc.). A legal entity that has suffered property damage as a result of a crime may be recognized as a victim. In this case, the rights and obligations of the victim shall be exercised by the representative of the legal entity (Paragraph 3 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 Who Have Suffered from Criminal Offences”).

However, with regard to the question of whether a legal entity may claim compensation for moral damage, this issue should be clarified once again: no, it may not. Civil legislation does not provide for compensation for moral damage to a legal entity, and courts must refuse to accept statements of claim filed by legal entities seeking compensation for moral damage. If such a statement of claim has been accepted, the proceedings in the case shall be terminated. At the same time, it should be borne in mind that claims concerning the protection of an individual's business reputation also apply to the protection of the business reputation of a legal entity, with the exception of claims for compensation for moral damage. The rules on compensation for losses, in accordance with the procedure established by the Civil Code, shall apply to the protection of the business reputation of a legal entity (Paragraphs 1 and 4 of Article 9 of the Civil Code, Paragraph 17 of Regulatory Resolution No. 7 of the Supreme Court dated November 27, 2015, “On the Application by Courts of Legislation on Compensation for Moral Damage”). In this regard, I believe that Paragraph 17 of Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015, complies with the requirements of Part 12 of Article 71 of the CPC, according to which “A legal entity that has suffered property damage as a result of a criminal offence may be recognized as a victim” (see the commentary to the provisions of Articles 40–41 of the CPC).

Drawing attention to these issues is necessary because, in the course of proceedings in a case, circumstances may emerge that require the cancellation of a previously issued resolution recognizing a person as a victim of a socially dangerous act, and such cancellation must be carried out (Part 3 of Article 71 of the CPC). Some of these circumstances are set out in the aforementioned regulatory resolution of the Supreme Court (see Paragraph 4 of the commentary to Article 71 of the CPC). For example, the assertion that no damage may be caused during preparation for a crime or attempted crime (which is debatable) effectively means that there is no victim in such cases, and the presumed victim participates in such proceedings as a witness. It is no coincidence that, when addressing this topic, the Supreme Court emphasizes the need to prove the existence of actual damage of any kind in such cases.

In a broad sense, not only a person who has suffered damage as a result of a socially dangerous act may be recognized as a victim of a criminal offence. Other cases in which a person may be recognized as a victim in a case are identified in the above-mentioned regulatory resolution of the Supreme Court (1992): “In cases involving criminal offences that resulted in the death of a person, the rights of the victim provided for by law shall be exercised by their close relatives, spouse, adoptive parents and adopted children, one of whom, taking into account the agreement reached between them, shall be recognized as the victim and not as the victim's representative. If several of the aforementioned persons insist on being granted the rights of a victim, they may also be recognized as victims. In cases of intentional murder committed in the presence of persons close to the deceased, such persons must be recognized as victims.

In the event of the victim's death and in the absence of close relatives, a spouse, adoptive parents or adopted children, their rights in criminal proceedings may be represented by guardians, trustees, or representatives of institutions, organizations and persons under whose care or support the victim was. According to Subparagraph 11) of Article 7 of the CPC, close relatives include parents, children, adoptive parents, adopted children, full and half brothers and sisters, grandfathers, grandmothers and grandchildren” (Paragraph 6).

As a rule, the recognition of a person as a victim in a case entails their recognition as a civil claimant, either simultaneously or subsequently, since the right to file a civil claim in a criminal case forms part of the general scope of the victim's rights. A separate resolution to this effect shall be issued by the body conducting the criminal proceedings, explaining the scope of the rights of a civil claimant in the criminal case (Part 3 of Article 71, Articles 73 and 76 of the CPC). Explaining the meaning of the provision concerning the victim's right to file a civil claim (Part 4 of Article 71 of the CPC), the Supreme Court indicated that a victim who has submitted a claim for compensation for material damage, including damage caused by the loss of a breadwinner, bodily injury or other harm to health, expenses incurred for burial, monetary compensation for moral damage and other claims, must also be recognized as a civil claimant. In cases involving the theft, damage or destruction of material assets that were lawfully held by a possessor (tenant, custodian, etc.), both the owner and the lawful possessor of such assets shall have the right to file a civil claim. A victim recognized as a civil claimant shall have the right to participate in judicial pleadings with the rights of a civil claimant, regardless of whether the prosecutor participates in the case (Paragraph 5 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 Who Have Suffered from Criminal Offences”).

If a person has not filed a claim, but the materials of the case have actually established that damage was caused to them, the court is obliged, when rendering its judgment, to consider whether the property damage caused by the criminal offence is subject to compensation. If this issue is resolved positively, the court shall, in accordance with Part 3 of Article 166 of the CPC, recognize the victim's right to satisfaction of the claim through civil proceedings (Paragraph 16 of Regulatory Resolution No. 2 of the Supreme Court dated April 24, 1992; Paragraph 3 of Regulatory Resolution No. 1 of the Supreme Court dated June 20, 2005, “On the Consideration of Civil Claims in Criminal Proceedings”).

Separate attention should be paid to the victim's right to reimbursement of expenses incurred in connection with their participation in criminal proceedings, including expenses for a representative (Part 4 of Article 71, Articles 175–176 of the CPC). The procedure for resolving these issues is governed by Resolution No. 1070 of the Government of the Republic of Kazakhstan dated October 9, 2014, “On Certain Issues of Reimbursement of Expenses Incurred by Persons in Criminal Proceedings”; Resolution No. 834 of the Government of the Republic of Kazakhstan dated December 13, 2018, “On Approval of the Amount of Remuneration for State-Guaranteed Legal Assistance Provided by an Advocate and Reimbursement of Expenses Related to Legal Consultation, Defence and Representation, as well as the Conduct of Conciliation Procedures”; and the Rules for Payment for State-Guaranteed Legal Assistance Provided by an Advocate and Reimbursement of Expenses Related to Legal Consultation, Defence and Representation, as well as the Conduct of Conciliation Procedures, approved by Order No. 1462 of the Minister of Justice of the Republic of Kazakhstan dated September 28, 2018. These expenses are primarily borne by the state (paid from the republican budget). All lawful expenses incurred by the victim in the course of proceedings in the case shall be paid by the state. Where payment for the services of the victim's representative (advocate) is concerned, there may be two options: the first is reimbursement of the representative's expenses by the state if the victim or their legal representative does not have the financial means necessary to obtain legal assistance from a representative; the second is that the expenses associated with the participation of the representative are covered by the victim or their legal representative personally (Part 2 of Article 76 of the CPC).

9. Reimbursement of expenses personally incurred by the victim in the course of criminal proceedings, which are not related to the participation of their representative in the case, shall be carried out in accordance with Resolution No. 1070 of the Government of the Republic of Kazakhstan dated October 9, 2014, “On Certain Issues of Reimbursement of Expenses Incurred by Persons in Criminal Proceedings”, which approved the relevant Rules for the Payment of Expenses Incurred by Persons in Criminal Proceedings (hereinafter referred to as the Rules) (see also Paragraphs 1, 3–7 and 16–17 of Regulatory Resolution No. 10 of the Supreme Court dated June 29, 2018, “On the Recovery of Procedural Costs in Criminal Cases”).

The Rules have been developed on the basis of Part 4 of Article 176 of the Criminal Procedure Code and determine the procedure for reimbursement of expenses incurred by persons in connection with proceedings in a criminal case, as well as payment of remuneration to persons performing relevant work in connection with proceedings in a criminal case.

According to Paragraph 2 of the Rules, the following expenses of the victim, civil claimant, their legal representatives, attesting witnesses, interpreters, specialists, experts, witnesses, and candidates for jury members summoned to court but not selected as members of the jury panel shall be reimbursed from budgetary funds within the framework of criminal proceedings:

expenses related to appearing upon summons of the body conducting the criminal proceedings: the cost of travel by rail, water, road (excluding taxis) and other types of transport available in the given locality, and, with the consent of the body conducting the criminal proceedings, the cost of travel by air; the cost of renting accommodation in accordance with the standards adopted for payment of official business trips, provided that such expenses are not reimbursed by the organization or employer;

daily allowances, where it is necessary for these persons to reside, at the request of the body conducting the criminal proceedings, outside their permanent place of residence, provided that such daily allowances are not reimbursed by the organization or employer;

average earnings for the entire period spent, at the request of the body conducting the criminal proceedings, participating in the criminal case, except where average earnings are retained for them by the organization or employer;

expenses for restoring or purchasing property that has lost its quality or has been lost as a result of the person's participation in an investigative or other procedural action at the request of the body conducting the criminal proceedings.

In accordance with Part 2 of Article 176 of the Criminal Procedure Code, state bodies and organizations are obliged to retain the average earnings of the victim, their legal representative, attesting witness, interpreter, specialist, expert, witness, and candidate for jury membership summoned to court but not selected as a member of the jury panel for the entire period spent by them, at the request of the body conducting the criminal proceedings, participating in criminal proceedings (Paragraph 3). Average earnings shall be retained for all working days of the week in accordance with the schedule established at the permanent place of employment (Paragraph 4).

A specialist and an expert shall also be reimbursed for the cost of chemical reagents and other consumable materials belonging to them and expended in performing the assigned work, as well as fees paid by them for the use of equipment, utilities and machine time required to perform the work (Paragraph 5).

Travel expenses to the place of summons and back to the permanent place of residence of the persons specified in Paragraph 2 of the Rules shall be paid in accordance with the procedure and on the terms established by legislation for reimbursement of expenses incurred by employees of state institutions maintained from the state budget of the Republic of Kazakhstan when sent on official business trips within the Republic of Kazakhstan (Paragraph 6).

For the days on which persons are summoned by the body conducting the criminal proceedings, including weekends and public holidays, as well as days spent travelling, including the period of a forced stop during the journey, the persons summoned shall be paid daily allowances and reimbursed for accommodation rental expenses, upon presentation of relevant documents confirming the fact of the delay, in amounts determined in accordance with the procedure established by the legislation on reimbursement of official business trip expenses within the Republic of Kazakhstan for employees of state institutions maintained from state budget funds, provided that such expenses are not reimbursed by the organization or employer (Paragraph 7).

Expenses incurred in connection with proceedings in a criminal case shall be reimbursed upon application by the persons specified in Paragraphs 2 and 5 of the Rules, on the basis of a resolution of the body conducting the criminal proceedings (Paragraph 8).

Amounts payable to a person in connection with their appearance shall be paid by the body that summoned them immediately upon completion of their duties, irrespective of whether court costs have actually been received from or recovered from convicted persons in criminal cases (Paragraph 9).

The amounts provided for in Paragraphs 5, 6 and 7 of the Rules shall be paid by the financial service (accounting department) of the body conducting the criminal proceedings and issuing the summons in criminal cases, from funds specifically allocated from the budget for these purposes and provided for in the relevant financing plans (Paragraph 10).

An expert, specialist or interpreter performing work related to conducting examinations, providing opinions or interpreting for the bodies of inquiry, preliminary investigation, the prosecutor's office or the court shall receive remuneration from the republican budget (Paragraph 11).

Experts, specialists and interpreters shall not be paid remuneration if the relevant work performed in connection with proceedings in a criminal case fell within the scope of their official duties and was performed outside working hours (Paragraph 12).

Remuneration to experts, specialists and interpreters shall be paid by the financial service (accounting department) of the body conducting the criminal proceedings and issuing the summons in criminal cases, from funds specifically allocated from the budget for these purposes and provided for in the relevant financing plans (Paragraph 13).

The Resolution approves the rates of remuneration payable to the above-mentioned persons for performing relevant work in connection with proceedings in a criminal case.

Thus, specialists and experts shall be paid remuneration in an amount not exceeding one monthly calculation index per hour.

Interpreters shall be paid remuneration calculated per page (up to 2,000 characters) of written translation or per hour of oral interpretation:

from Russian into Kazakh (and vice versa) — no more than one-half of the monthly calculation index;

from Western European, Turkic and other languages into Russian or Kazakh (and vice versa) — no more than one monthly calculation index.

Where there are grounds for involving a representative of the victim in the case in the person of an advocate (Part 2 of Article 76 of the Criminal Procedure Code), payment for their services shall be made on the basis of the above-mentioned Order No. 1462 of the Minister of Justice of the Republic of Kazakhstan dated September 28, 2018 (see also Paragraphs 1, 3—7 and 16—17 of Regulatory Resolution No. 10 of the Supreme Court dated June 29, 2018, “On the Recovery of Procedural Costs in Criminal Cases”).

The full texts of the above-mentioned regulatory legal act (Order of the Minister of Justice of the Republic of Kazakhstan) are provided in the commentary on Parts 5—6 of Article 68 of the Criminal Procedure Code.

Recognition of the victim or another person as a civil claimant in a criminal case entitles them to claim compensation for pecuniary damage and, additionally, moral harm in monetary terms within the framework of criminal or civil proceedings (for guidance, see: Regulatory Resolution No. 7 of the Supreme Court dated November 27, 2015, “On the Application by Courts of Legislation on Compensation for Moral Harm”; Regulatory Resolution No. 1 of the Supreme Court dated June 20, 2005, “On the Consideration of a Civil Claim in Criminal Proceedings”; Articles 166—173 of the Criminal Procedure Code).

The key and, at the same time, specific rights of the victim are set out in Part 6 of Article 71 of the Criminal Procedure Code, an explanation of which follows below.

The provision of Subparagraph 1 of Part 6 of Article 71 of the Criminal Procedure Code means that the victim, personally or through their representative, receives a copy of the resolution recognizing a person as a suspect, the resolution on the legal classification of the suspect's act, the resolution terminating the criminal case on grounds that do not rehabilitate the person, a copy of the indictment, the protocol on a criminal misdemeanor, the resolution on the application of summary proceedings, the procedural agreement, the resolution scheduling the main court hearing, the court's guilty verdict and other judicial decisions in the case that record the scope of the accusation. This is necessary to ensure that the victim is aware of the scope of the suspicion and accusation in order to fully protect their rights and interests in the case.

The provision of Subparagraph 2 of Part 6 of Article 71 of the Criminal Procedure Code is inherently connected with the language of judicial proceedings and must not be diminished in any form whatsoever. Violation of the victim's right to use their native language or a language they speak, or to use the services of an interpreter during proceedings in a criminal case, constitutes grounds for the unconditional reversal of the judgment (Subparagraph 5 of Part 3 of Article 436 of the Criminal Procedure Code, etc.).

The provision of Subparagraph 3 of Part 6 of Article 71 of the Criminal Procedure Code is governed by a combination of the provisions of the Criminal Procedure Code that enable the victim to act as an active participant in the evidentiary process throughout the proceedings in the case: the right to give testimony, submit information, objects and documents relevant to the case, participate in the examination of evidence in the courts of first instance and appeal, make submissions during court debates, etc.

The provision of Subparagraph 4 of Part 6 of Article 71 of the Criminal Procedure Code is обусловлена ensuring a high degree of objectivity in criminal proceedings involving the victim, who, personally or through their representative, is entitled to file motions or challenges on the grounds specified by law (Articles 86—93 and 99 of the Criminal Procedure Code).

The provision of Subparagraph 5 of Part 6 of Article 71 of the Criminal Procedure Code is closely related to the provision of Subparagraph 2 of Part 6 of Article 71 of the Criminal Procedure Code. The issue of payment for the services of an interpreter shall be resolved in accordance with Resolution No. 1070 of the Government of the Republic of Kazakhstan dated October 9, 2014, “On Certain Issues of Reimbursement of Expenses Incurred by Persons in Connection with Proceedings in a Criminal Case”, which approves the Rules for Payment of Expenses Incurred by Persons in Connection with Proceedings in a Criminal Case.

The provision of Subparagraph 6 and the second paragraph of Subparagraph 22 of Part 6 of Article 71 of the Criminal Procedure Code is governed by Article 76 of the Criminal Procedure Code, under which representatives of the victim may be advocates and other persons authorized by law to represent the legitimate interests of the victim, civil claimant and private prosecutor in criminal proceedings and admitted to participate therein by a resolution of the body conducting the criminal proceedings. For the protection of the rights and legitimate interests of victims who are minors, do not speak the language of the proceedings or, due to their physical or mental condition, are deprived of the ability to independently protect their rights and legitimate interests, their legal representatives and representatives shall also be mandatorily involved in the proceedings. In such cases, only and exclusively an advocate selected by the victim or their legal representative may be admitted as the victim's representative. In the event of a violation of this requirement, — as the Supreme Court explains, — the judgment or court ruling shall be subject to reversal in any event (Paragraph 7 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 Who Have Suffered from Criminal Offences”).

If an advocate has not been invited by the victim personally or by their legal representative, the participation of an advocate shall be ensured by the body conducting the criminal proceedings through the issuance of a resolution that is binding upon the professional organization of advocates or its structural subdivision. The body conducting the criminal proceedings shall not be entitled to recommend inviting a specific advocate as defence counsel. Where the victim or their legal representative lacks the necessary funds, payment for the advocate's services shall be made from budgetary funds.

The provisions of Subparagraph 7 of Part 6 of Article 71 of the Criminal Procedure Code concern the property and documents of the victim which, lawfully in connection with the proceedings in the case (through seizure), or unlawfully as a result of the commission of a criminal offence, have left their possession and are subject to return to them in all cases.

The provisions of Subparagraph 8 of Part 6 of Article 71 of the Criminal Procedure Code are governed by Article 68 of the Criminal Code, “Release from Criminal Liability in Connection with Reconciliation”. Reconciliation is permitted from the moment a person is recognized as a suspect, accused or defendant until the court retires to the deliberation room to render its verdict. If reconciliation between the subject of a criminal offence and the victim or, conversely, between the victim and that person, where the conditions specified in Part 1 of Article 68 of the Criminal Code are met, constitutes grounds for the unconditional release of the person from criminal liability in the forms provided for by the Criminal Procedure Code, then, in the event of reconciliation between the parties on the grounds set out in Parts 2—3 of Article 68 of the Criminal Code, the release of the person from criminal liability remains at the discretion of the body conducting the criminal proceedings. The initiative to reconcile may come either from the subject of the criminal offence or from the victim. A mediator may also be involved in the reconciliation process and conduct it in such a case (Article 85 of the Criminal Procedure Code).

The provisions of Subparagraph 8-1 of Part 6 of Article 71 of the Criminal Procedure Code mean that, without the clearly expressed consent of the victim to the application of summary proceedings in a case involving a criminal misdemeanor or a minor offence, such pre-trial proceedings shall not be conducted (Subparagraph 4 of Part 2 of Article 629-1 of the Criminal Procedure Code).

The provisions of Subparagraph 9 of Part 6 of Article 71 of the Criminal Procedure Code concern all cases of the victim's participation in investigative actions (interrogations, confrontations, identification procedures, etc.), and it is entirely logical that, before signing the records of investigative actions, the victim is entitled to review their contents and submit comments thereon.

The provisions of Subparagraph 10 of Part 6 of Article 71 of the Criminal Procedure Code are related to the provisions of Subparagraphs 4 and 9 of Part 6 of Article 71 of the Criminal Procedure Code, as well as to the application of the principles of criminal proceedings regulated by Articles 23—24 of the Criminal Procedure Code, and may be exercised with the knowledge of the criminal prosecution body or through the use of the powers of the investigating judge (deposition of the victim's testimony).

The provisions of Subparagraph 11 of Part 6 of Article 71 of the Criminal Procedure Code constitute one of the fundamental rights of the victim, which is necessary for the protection of their rights and interests at the judicial stages of criminal proceedings. This is particularly relevant if the victim is understood under the Criminal Procedure Code to be an active participant in the judicial investigation and the parties' court debates.

The provisions of Subparagraph 12 of Part 6 of Article 71 of the Criminal Procedure Code are related to the application of the principles of criminal proceedings regulated by Articles 13, 15, 16 and 29 of the Criminal Procedure Code, directly concern the victim and members of their family, and are dictated by the need to protect information about private life and prevent unlawful actions by the perpetrators against them. In this regard, the prohibition on the suspect approaching the victim and members of their family, being a measure of procedural coercion, should be regarded as one of the measures for ensuring the safety of these persons in criminal proceedings (Article 165 of the Criminal Procedure Code). In the context of the foregoing, it should be noted that electronic tracking devices may serve as one of the effective means of ensuring the above-mentioned safety measure for the victim, as they will give the victim advance notification of the suspect's approach, enabling them to take appropriate measures.

The provisions of Subparagraph 13 of Part 6 of Article 71 of the Criminal Procedure Code establish a list of the principal pre-trial and judicial procedural decisions in a case that are related to the rights of the victim and must be served on them in a language they speak at the relevant stages of criminal proceedings. This provision corresponds, in part, to the provision of Subparagraph 1 of Part 6 of Article 71 of the Criminal Procedure Code. Where grounds exist, the victim is entitled to appeal decisions of the bodies conducting the criminal proceedings, having received them, in accordance with the procedure established by the Criminal Procedure Code.

The provisions of Subparagraph 14 of Part 6 of Article 71 of the Criminal Procedure Code are related to the application of the principles of justice and criminal proceedings provided for in Subparagraph 4 of Paragraph 3 of Article 77 of the Constitution, Articles 11, 12, 21, 22, 23, 24 and 29 of the Criminal Procedure Code, and imply the victim's right to participate personally in the relevant judicial instances and the right to be heard there (Article 338 of the Criminal Procedure Code, etc.).

The provisions of Subparagraph 15 of Part 6 of Article 71 of the Criminal Procedure Code are related to the preceding provisions and imply that the victim's opinion must be taken into account regarding the proof of the circumstances to be established in the case, the person's guilt in committing a criminal offence, the legal classification of the criminal offence, and the type and amount of criminal punishment. The victim communicates their position to the court and the parties when giving testimony during the judicial investigation and making submissions during the court debates in the main court hearing.

The provision of Subparagraph 16 of Part 6 of Article 71 of the Criminal Procedure Code is related to the application of the principles of criminal proceedings and the general conditions of the main court hearing (Part 9 of Article 23 and Part 7 of Article 337 of the Criminal Procedure Code) and expresses the victim's independent position regarding the accusation on which the defendant has been committed for trial. Unlike cases of public prosecution and accusation, in cases of private prosecution and accusation the victim is simultaneously the private prosecutor and personally maintains the accusation in the case (Part 6 of Article 408 of the Criminal Procedure Code).

The provision of Subparagraph 17 of Part 6 of Article 71 of the Criminal Procedure Code constitutes an expression of the victim's right to monitor the course, content and results of the court proceedings through the record of the court hearing, which documents all actions and decisions of the court in the case under consideration, as well as the actions of participants in the criminal proceedings. In this regard, the victim has the right to sign the relevant part of the record and to submit objections thereto. Moreover, information contained in the record of the court hearing may be used by the victim when appealing a judgment or court ruling in accordance with the procedure established by the Criminal Procedure Code.

The provisions of Subparagraphs 18, 19 and 20 of Part 6 of Article 71 of the Criminal Procedure Code are based on the principles of criminal proceedings (Articles 12, 21, 23, 24 and 31 of the Criminal Procedure Code) and manifest themselves differently at various stages of criminal proceedings. For example, the provision of Subparagraph 18 may be exercised by the victim through an investigating judge (Subparagraph 2 of Part 2 of Article 55, Articles 100—107 of the Criminal Procedure Code); the provision of Subparagraph 19 — through appeal and cassation proceedings (Article 108 of the Criminal Procedure Code); while the provision of Subparagraph 20 is addressed to the bodies conducting criminal proceedings, which are obliged to notify the victim of complaints, motions and protests brought by the prosecutor in the case so that the victim may protect their rights personally or through a representative, or by using the powers of the bodies conducting criminal proceedings.

The provision of Subparagraph 21 of Part 6 of Article 71 of the Criminal Procedure Code is sufficiently broad and, in each particular case, depends on the circumstances of the criminal case, the nature of the criminal offence and the procedure for proceedings associated with it (a case of private, private-public or public prosecution), the participation of a representative or legal representative, the necessity of the victim's personal participation in the case, etc. For example, the victim is entitled to object to the termination of a criminal case on grounds that do not rehabilitate the person, as provided for in Part 1 of Article 36 of the Criminal Procedure Code; the victim or their representative is entitled to participate in court when the issue of conditional early release of a convicted person from punishment or replacement of the unserved portion of the sentence with a milder punishment is being decided (Part 9 of Article 478 and Part 5 of Article 480 of the Criminal Procedure Code), etc.

The provisions of Subparagraph 22 of Part 6 of Article 71 of the Criminal Procedure Code are related to the right of the subject of a crime to conclude a procedural agreement in the form of a plea agreement during proceedings in the case, the full contents of which the victim must know in order to protect their rights (Subparagraph 16 of Part 9 of Article 64, Subparagraph 5 of Part 5 of Article 65, Articles 615—616 of the Criminal Procedure Code). The victim must express their position regarding its terms and consequences, including the legal classification of the crime, the type and amount of punishment, the nature and amount of damage, and the time limits and procedure for compensation, or object to the conclusion of the procedural agreement.

Since the law does not provide otherwise, it should be borne in mind that consideration of the victim’s opinion is excluded during the conclusion and implementation by prosecutors of the terms of a cooperation agreement through the relevant courts, including courts at the stage of execution of a sentence (Articles 618–621 of the CPC).

The provisions of subparagraph 23 of paragraph 6 of Article 71 of the CPC regulate the victim’s right (in respect of certain elements of criminal offences), in the cases and in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan on the Victim Compensation Fund, to receive compensation (Article 173 of the CPC, Law of the Republic of Kazakhstan dated January 10, 2018, “On the Victim Compensation Fund”).

Part 7 of Article 71 of the CPC establishes specific features of the procedure for compensation for property damage where such damage has been caused as a result of the commission of an especially grave crime and the convicted person does not have sufficient property to compensate for it. In this case, when granting a civil claim, the court, upon an application by the victims or their legal successors, issues a ruling on the payment to each of them of monetary compensation from the funds of the republican budget in full, but not exceeding 150 monthly calculation indices. The said court ruling is subject to compulsory enforcement in accordance with the procedure established by the legislation on enforcement proceedings (paragraph 5-1 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 Who Have Suffered from Criminal Offences”).

In addition to the set of rights, the victim is also subject to corresponding obligations, which are addressed in the provisions of Parts 8–10 of Article 71 of the CPC. These obligations are related to: cases in which the victim is summoned for questioning (Article 208 of the CPC); the inadmissibility of disclosing pre-trial investigation data (Article 201 of the CPC); the need to comply with the rules governing the conduct of investigative actions (Articles 208–211, 213–215, 217–218, 220, 223, 230, 257–258, 265, 278–279 of the CPC) and the rules of procedure during the main court hearing (Article 345 of the CPC).

Thus, for failure to perform procedural duties during proceedings in a case and for violating order in a court hearing, a monetary penalty may be imposed on the victim by the investigating judge or, accordingly, by the judge hearing the case, in the amount and in accordance with the procedure established by Article 160 of the CPC (Article 159 of the CPC).

In the event of failure to appear when summoned without valid reasons, the victim may be subjected to compulsory attendance pursuant to a reasoned resolution of the authority conducting the criminal proceedings. Minors under the age of fourteen shall not be subjected to compulsory attendance; persons under the age of eighteen shall not be subjected to compulsory attendance without notification of their legal representative; nor shall pregnant women or sick persons who, due to their state of health, cannot or should not leave their place of residence be subjected to compulsory attendance, which must be certified by a physician. A court ruling on compulsory attendance shall be enforced by a court bailiff or an internal affairs body; a ruling issued by a prosecutor, inquiry officer or investigator shall be enforced by the body conducting the inquiry or preliminary investigation, or by an internal affairs body (Article 157 of the CPC).

Giving knowingly false testimony and refusal by the victim to testify entail criminal liability under Articles 420–421 of the Criminal Code. A victim’s refusal to testify (in the absence of grounds for such refusal) must be recorded in the protocol of the victim’s interrogation and serve as grounds for initiating a pre-trial investigation. However, a victim’s refusal to testify against himself or herself, his or her spouse, or close relatives excludes criminal liability (see the Note to Article 321 of the Criminal Code).

The falsity of a victim’s testimony, established by a court judgment that has entered into legal force in respect of that victim, constitutes grounds for reopening proceedings in a case due to newly discovered circumstances (subparagraph 1 of paragraph 2 of Article 499 of the CPC).

The death of a person as a result of a crime does not constitute grounds for terminating the protection of that person’s rights and interests in the case — this is provided for by the provisions of Part 11 of Article 71 and Article 109 of the CPC. In this regard, the Supreme Court has provided the following clarification: “In cases involving criminal offences resulting in the death of a person, the rights of the victim provided for by law shall belong to the close relatives, spouse, adoptive parents and adopted children of the deceased. One of these persons, taking into account the agreement reached among them, shall be recognized as the victim and not as the representative of the victim. If several of the persons specified above insist on being granted the rights of a victim, they may also be recognized as victims. In cases involving intentional murder committed in the presence of persons close to the deceased, such persons must be recognized as victims.

In the event of the victim’s death and the absence of close relatives, a spouse, adoptive parents or adopted children, the victim’s rights in criminal proceedings may be represented by guardians, trustees, or representatives of the institutions, organizations and persons under whose care or maintenance the victim was placed. According to subparagraph 11 of Article 7 of the CPC, close relatives are parents, children, adoptive parents, adopted children, full and half-brothers and half-sisters, grandfather, grandmother and grandchildren” (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 Who Have Suffered from Criminal Offences”).

A legal entity that has suffered property damage as a result of a criminal offence may also be recognized as a victim in a case, as discussed above in paragraph 4 of the commentary to Article 71 of the CPC (Part 12 of Article 71, Article 6 of the CPC; subparagraph 7 of Article 3 of the Civil Code, etc.).

Cases involving legal entities that have suffered from a crime and have been recognized as civil claimants in criminal proceedings are conducted before the bodies conducting criminal proceedings by their bodies acting within the powers granted to them by law, other regulatory legal acts or constituent documents, and by their representatives vested with the appropriate authority. The heads of legal entities shall submit to the court documents certifying their official position or authority. A body of a legal entity may participate in the case alongside another representative vested with the appropriate authority. Any legally capable person having duly formalized authority to conduct a case in court, based on a power of attorney, legislation, a court decision or an administrative act, may act as a representative in court (Articles 57–58 of the Civil Procedure Code). The authority to conduct a case in court entitles a representative to perform, on behalf of the represented person, all procedural actions, except for signing a statement of claim, referring a case to arbitration, concluding a settlement agreement, an agreement on the settlement of a dispute (conflict) through mediation or an agreement on the settlement of a dispute through a participatory procedure, fully or partially waiving a claim or acknowledging a claim, increasing or decreasing the subject matter of claims, changing the subject matter or grounds of a claim, transferring authority to another person (substitution of authority); appealing a judicial act through appellate or cassation proceedings, filing an application for review of a judicial act based on newly discovered or new circumstances, requesting compulsory enforcement of a judicial act, receiving awarded property, withdrawing an appeal or a petition. The representative’s authority to perform each of the above actions must be specifically stipulated in the power of attorney issued by the represented person (Article 61 of the Civil Procedure Code) and executed in accordance with the law. The power of attorney shall be submitted to the court in written form or as an electronic document. An advocate’s authority to conduct a case in court shall be confirmed before the court by an order issued by a legal consultation office or an advocate’s office, and where the advocate conducts individual practice, by an agreement concluded between the advocate and the client (legal entity). The performance by an advocate of the procedural actions provided for in Part 1 of Article 60 of the Civil Procedure Code shall be certified by a power of attorney. A power of attorney on behalf of a legal entity shall be issued by the head of that entity or another person of the relevant legal entity authorized to do so (Article 62 of the Civil Procedure Code).

Criminal prosecution bodies and the court must verify the authority of a representative of a legal entity participating in the case as a representative for the purpose of reconciliation with the person who committed the crime. Such authority must be reflected in the power of attorney for participation in the case (paragraph 9 of Regulatory Resolution No. 4 of the Supreme Court dated June 21, “On Judicial Practice in the Application of Article 68 of the Criminal Code of the Republic of Kazakhstan”).

To obtain an answer to the question of who represents the interests of the Republic of Kazakhstan when property damage is caused to the State as a result of a criminal infringement, I recommend referring to the clarifications concerning the provisions of Part 2 of Article 58 of the CPC.

Along with the above, the bodies and officials conducting criminal proceedings, as well as other participants in criminal proceedings, should bear in mind that national law pays particular attention to victims who have been subjected to cruel treatment resulting in social maladaptation and social deprivation. These issues are regulated, to a certain extent, within the framework of the Law of the Republic of Kazakhstan dated December 29, 2008, “On Special Social Services”, which is interconnected with legislation in the fields of education (2007) and healthcare (2009).

Thus, subparagraph 9 of paragraph 1 of Article 6 of the Law includes, among other persons, persons who have been subjected to cruel treatment resulting in social maladaptation and social deprivation among those in difficult life circumstances. At the same time, the criteria for assessing the existence of cruel treatment resulting in social maladaptation and social deprivation are determined by the Ministry of Internal Affairs of the Republic of Kazakhstan jointly with the authorized bodies in the fields of social protection of the population, healthcare and education. Forms of cruel treatment resulting in social maladaptation and social deprivation include acts related to domestic violence, human trafficking, including trafficking in minors, other forms of their exploitation, as well as kidnapping, regardless of whether criminal proceedings have been initiated in relation to the acts committed.

In furtherance of the provisions of this Law, the Standard for the Provision of Special Social Services to Victims of Human Trafficking was approved by Order No. 138 of the Acting Minister of Healthcare and Social Development of the Republic of Kazakhstan dated February 24, 2016, and the Standard for the Provision of Special Social Services to Victims of Domestic Violence was also approved by Order No. 1079 of the Minister of Healthcare and Social Development dated December 21, 2016.

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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

Constitution Law Code Regulatory Resolution Decree Order Decision Resolution Advocate Almaty Lawyer Legal Service Legal Consultation Civil Criminal Administrative Cases and Disputes Defense Arbitration Cases and Disputes Legal Company Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Programme Charter Article Commentary Resolution Regulation Protocol Draft Programme Rules Messages