Commentary on Article 72. Private Prosecutor of the Criminal Procedure Code of the Republic of Kazakhstan

• 1. A private prosecutor is a person who has filed a complaint with the court in a private prosecution case and supports the prosecution in court, as well as a victim in cases of public and private-public prosecution who independently supports the prosecution in court if the public prosecutor refuses to pursue the prosecution.
• 2. In the event that the victim is a minor or legally incapable, the victim’s legal representative who has filed a petition, made a request, or submitted a complaint shall be considered the private prosecutor.
• 3. A private prosecutor shall enjoy all the rights and bear all the obligations of a victim, and shall also be vested with the rights provided for in Parts Three and Five of Article 411 of this Code.
• 4. A private prosecutor shall exercise the rights belonging to him or her and perform the duties imposed on him or her personally or, where consistent with the nature of such rights and duties, through a representative.
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Part 1 of Article 72 of the CPC distinguishes between two forms of participation of a private prosecutor in criminal proceedings: in cases of private prosecution and accusation (Parts 1–2 of Article 32, Articles 407–413 of the CPC), or in cases of public and private-public prosecution and accusation (Parts 3 and 6 of Article 32, Part 9 of Article 23, Part 7 of Article 337 of the CPC). Thus, in the first case, no pre-trial investigation is conducted, the participation of a prosecutor is not provided for by law, and prosecutorial supervision over such cases is not carried out. The private prosecutor brings and supports the prosecution in court independently or with the participation of a representative. The participation of an investigating judge is also not provided for in private prosecution cases. In the second case, a pre-trial investigation is conducted in the relevant procedural form, prosecutorial supervision is exercised, and, where grounds exist, the participation of an investigating judge is provided for. The prosecutor's participation in court consists of maintaining the public prosecution. If the public prosecutor refuses to pursue the prosecution, the victim in cases of public and private-public prosecution has the right to continue supporting the prosecution in court independently or with the participation of a representative.

As a rule, a private prosecutor is simultaneously a victim of a criminal offense and a civil claimant, and independently protects his or her rights and interests in a criminal case involving private prosecution and accusation (Article 32 of the CPC). A person acquires the status of a private prosecutor and victim in such cases from the moment the court accepts the complaint for its proceedings (a ruling is issued). The judge draws up a record confirming that the rights have been explained to the private prosecutor, which is signed by the judge and the person who filed the complaint (Part 6 of Article 408 of the CPC). The status of victim and civil claimant is, accordingly, conferred on the private prosecutor by separate judicial rulings in the case.

At the same time, a private prosecutor in a private prosecution case has the right to have a representative, for example, a lawyer (Part 4 of Article 72, Article 76 of the CPC). A representative of the private prosecutor participates in proceedings in a private prosecution case alongside the private prosecutor or in place of the private prosecutor. Where a complaint concerning private prosecution and accusation is filed by the victim's representative with the victim's knowledge (in the case of an individual or a legal entity), such participant becomes the private prosecutor in the case.

If the victim dies after filing a complaint with the court, the powers of the private prosecutor shall pass to the victim's close relatives, provided that they insist on consideration of the criminal case for the purpose of the victim's rehabilitation. If the victim dies before filing a complaint with the court, the case cannot be initiated on the basis of an application by the victim's relatives, since no succession in criminal prosecution is provided for them. In such a situation, the prosecutor is entitled to initiate a pre-trial investigation on the basis of Part 4 of Article 32 of the CPC, even in the absence of a complaint from the victim, if the act affects the interests of a person who is in a helpless or dependent situation or who, for other reasons, is unable to independently exercise the rights belonging to him or her. In this case, the prosecutor cannot act as a private prosecutor, since upon the prosecutor's involvement, the criminal case of private prosecution becomes a case of public prosecution. However, the prosecutor is entitled to initiate a standard pre-trial investigation in the form of an inquiry or under the protocol procedure (Part 3 of Article 189 of the CPC).

In the event of the victim's death before filing a complaint with the court in private prosecution cases, the case cannot be initiated on the basis of an application by the victim's relatives, since succession in criminal prosecution is not provided for them. Whereas, if the defendant dies after the initiation of a private prosecution case but before its consideration by the court, the case shall be terminated, except where the defendant's close relatives insist on consideration of the case for the purpose of the defendant's rehabilitation (Paragraph 16 of Regulatory Resolution No. 13 of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006, “On Judicial Practice in Private Prosecution Cases”).

If the victim is a minor (including a young child) or legally incapable (fully or partially), a complaint in a private prosecution and accusation case shall be filed by the victim's legal representatives, who become private prosecutors from the moment the court accepts the complaint for its proceedings and, within the relevant limits, enjoy the rights and perform the duties of a victim (Part 2 of Article 72, Parts 2 and 3 of Article 76 of the CPC).

The rights and obligations of a legal entity that has suffered harm as a result of a crime (where property damage has been caused) shall be exercised, in the capacity of a private prosecutor, through its representative. A representative of a legal entity is also entitled to file a complaint concerning a criminal offense subject to private prosecution and accusation on the basis of a power of attorney issued by the legal entity (Part 12 of Article 71, Article 76 of the CPC, Article 62 of the Civil Procedure Code of the Republic of Kazakhstan).

Unlike cases of private prosecution and accusation, a private prosecutor in cases of private-public and public prosecution and accusation appears only when the prosecutor refuses to pursue the prosecution during the main court hearing (during the judicial investigation or court debates), and provided that the victim in the aforementioned cases insists on maintaining the prosecution. In this case, the prosecutor is released from further participation in the proceedings, and the prosecution is maintained by the victim personally or through a representative. Upon the victim's motion, the court shall grant the victim time to invite a representative (Parts 6 and 7 of Article 337 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, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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