Commentary on Article 73. Civil Plaintiff of the Criminal Procedure Code of the Republic of Kazakhstan

1. A civil plaintiff is a natural or legal person who has filed a civil claim for compensation for property or moral damage caused by a criminal offense or an act committed by an insane person.

2. For the purpose of supporting the claim filed, the civil plaintiff shall have the right to:

1) know the substance of the suspicion and accusation;

2) submit evidence;

3) provide explanations regarding the claim filed;

4) submit materials for inclusion in the criminal case;

5) file motions and challenges, give testimony and explanations in their native language or in a language they speak;

6) use the free assistance of an interpreter and have a representative;

7) familiarize themselves with the records of investigative actions conducted with their participation;

8) participate, with the permission of the prosecutor, investigator or interrogating officer, in investigative actions conducted upon their motion or the motion of their representative;

8-1) express consent to the application of order proceedings in a case involving a criminal misdemeanor or a minor-gravity crime;

9) upon completion of the investigation, familiarize themselves with the case materials relating to the civil claim and make extracts from them of any information and in any amount, except for information constituting state secrets;

10) be informed of decisions made that affect their interests and receive copies of procedural decisions;

11) relating to the civil claim filed;

12) participate in the consideration of the civil claim by any judicial instance;

13) speak during court debates;

14) familiarize themselves with the minutes of the court hearing and submit comments thereon;

15) lodge complaints against actions (inaction) and decisions of the body conducting the criminal proceedings;

16) appeal the judgment and court rulings insofar as they concern the civil claim;

17) be informed of complaints, motions of the prosecutor and protests filed in the case insofar as they concern the civil claim, and submit objections thereto;

18) participate in the judicial consideration of complaints, motions of the prosecutor and protests filed;

19) in the cases provided for by part one of Article 173 of this Code, receive compensation for damage caused from the funds of the Victim Compensation Fund;

20) request the adoption of security measures.

3. The civil plaintiff shall bear the obligations provided for in part eight of Article 71 of this Code.

4. The civil plaintiff shall also have other rights and bear other obligations provided for by law.

Note. Article 73 was amended by the Laws of the Republic of Kazakhstan dated 11 July 2017 No. 91-VI (shall enter into force upon the expiration of ten calendar days after the day of its first official publication); dated 21 December 2017 No. 118-VI (shall enter into force upon the expiration of ten calendar days after the day of its first official publication); and dated 10 January 2018 No. 132-VI (shall enter into force on 1 July 2018).

The provisions of the CPC associate the concept of a “civil plaintiff” with the expressions “the prosecution party” and “participants in criminal proceedings” (subparagraphs 2 and 25 of Article 7). This does not necessarily mean a person recognized as a victim of a criminal offense prosecuted under the private, private-public or public prosecution procedures. In all cases, this is a natural or legal person entitled to file a civil claim in a criminal case in which moral, physical or property damage has been caused (the victim, prosecutor, legal representative, representative). Taking into account the interests of legality and individual rights in criminal proceedings, clarification of the procedural form for compensation of any damage caused by a criminal offense within and through the provisions of criminal procedure law was reflected in the Regulatory Resolution of the Supreme Court of 20 June 2005 No. 1 “On the Consideration of Civil Claims in Criminal Proceedings”, according to which a civil claim may be filed at any time from the commencement of pre-trial investigation until the end of the judicial investigation, both in cases involving completed and incomplete criminal offenses, or a socially dangerous act committed by an insane person, as well as where the suspect has not been identified (paragraph 3).

In conducting proceedings in a criminal case, the inquiry officer, investigator, prosecutor or court, where grounds exist, shall explain to a natural or legal person (the victim of a criminal offense) their right to file a civil claim in the criminal case and shall ensure the exercise of this right by adopting procedural decisions (issuing a resolution).

3. Recognition of persons as civil plaintiffs must be preceded by the filing of a civil claim by them. The range of persons entitled to file civil claims in criminal proceedings is determined by Articles 58, 71 and 166–167 of the CPC. These include natural and legal persons who have suffered damage as a result of a criminal offense or an act prohibited by criminal law committed by an insane person, their legal representatives and representatives, and the prosecutor, as confirmed by the evidence in the criminal case. For example, instead of a victim who has legal capacity but lacks legal competence (under the age of 18 or under the age of 14, or recognized by a court as legally incompetent due to mental illness or intellectual disability), their legal representative (parents, adoptive parents, guardians) may act as the civil plaintiff (paragraph 1 of Article 22, paragraph 1 of Article 23, paragraph 2 of Article 26 of the Civil Code). Where property damage has been caused, a civil claim may be filed both by the owner of the lost property and by the possessor of property held by them on lawful grounds (a tenant, custodian, etc.). In accordance with part 5 of Article 71 of the CPC, a victim's claim for compensation for moral damage shall be considered in criminal proceedings. If such a claim was not filed in the criminal case or was left without consideration, the victim shall be entitled to file it under the procedure of civil proceedings (paragraph 3 of the above-mentioned Regulatory Resolution of the Supreme Court).

The statement of claim shall be submitted to the body conducting the criminal proceedings in written form or in the form of an electronic document, in accordance with the requirements applicable to claims considered under the procedure of civil proceedings (part 5 of Article 167 of the CPC).

The statement of claim must specify the circumstances set out in Article 148 of the Civil Procedure Code: 1) the name of the court to which the statement of claim is submitted; 2) the surname, first name and patronymic (if indicated in the identity document) of the plaintiff, their date of birth, place of residence, individual identification number, and, if the plaintiff is a legal entity, its full name, location, business identification number and bank details; the name and address of the representative, if the application is submitted by a representative. The application must contain information about the plaintiff's and representative's mobile telephone subscriber number and email address, if available; 3) the surname, first name and patronymic (if indicated in the identity document) of the defendant, their place of residence and individual identification number (if known to the plaintiff), and, if the defendant is a legal entity, its full name, location, bank details (if known to the plaintiff) and business identification number (if known to the plaintiff). The application must contain information about the defendant's mobile telephone subscriber number and email address, if known to the plaintiff; 4) the essence of the violation or threat of violation of the rights and freedoms of a citizen or the legitimate interests of the plaintiff, and the plaintiff's claims; 5) the circumstances on which the plaintiff bases their claims, as well as the substance of the evidence confirming these circumstances; 6) information on compliance with the pre-trial procedure for applying to the defendant, if such procedure is established by law or provided for by contract; 7) the value of the claim, if the claim is subject to monetary assessment, as well as the calculation of the monetary amounts sought or disputed; 8) a list of documents attached to the statement of claim. The application may also contain other information relevant to the resolution of the dispute, as well as the plaintiff's motions.

A statement of claim filed by a prosecutor in the state or public interest must contain substantiation of the nature of the state or public interest, the legitimate interests that have been violated, and a reference to the law to be applied. Where the prosecutor applies in the interests of a natural or legal person, the statement of claim must substantiate the reasons why the natural or legal person is unable to file the claim independently. A document confirming the consent of the natural or legal person or their legal representative to the prosecutor's filing of a claim with the court must be attached to the statement of claim, except in cases where the claim is filed in the interests of an legally incompetent person. The statement of claim shall be signed by the plaintiff or their representative, provided that the representative has the authority to sign the statement of claim. Where the claim is submitted in the form of an electronic document, it shall be certified by the electronic digital signature of the plaintiff or their representative.

In addition to the above, Article 149 of the Civil Procedure Code sets out the list of mandatory documents to be attached to the statement of claim: 1) copies of the statement of claim and the documents attached thereto, in a number corresponding to the number of defendants and third parties; 2) a document confirming payment of the state duty; 3) a power of attorney or other document certifying the authority of the representative; 4) documents confirming the circumstances on which the plaintiff bases their claims; 5) documents confirming compliance with the pre-trial dispute settlement procedure, if such procedure is established by law or provided for by contract; 6) the plaintiff's motion for the recovery of evidence, if the evidence is held by the defendant or a third party; 7) copies of the charter, certificate or certificate of state registration (re-registration), if the claim is filed by a legal entity. The following shall be attached to a statement of claim submitted in accordance with part 4 of Article 27 and subparagraph 2 of Article 28 of the Civil Procedure Code:

1. copies of the investment contract concluded between the investor and the authorized state body; 2) documents confirming the investor's investment activities. Copies, in electronic form, of the documents specified in subparagraphs 2–7 of part 1 of Article 149 of the Civil Procedure Code shall be attached to a statement of claim submitted in the form of an electronic document.

If it is necessary to clarify the grounds of the civil claim filed or the amounts claimed, an additional civil claim may be filed. A plaintiff who files a civil claim in criminal proceedings shall be exempt from payment of the state duty in courts in accordance with the Tax Code dated 25 December 2017 (subparagraphs 5, 6, 16 and 20 of Article 616). The jurisdiction of a civil claim filed in a criminal case shall be determined by the jurisdiction of the criminal case.

A decision to recognize a person as a civil plaintiff, to refuse to recognize a person as a civil plaintiff, or to terminate a person's participation in criminal proceedings in the capacity of a civil plaintiff shall be formalized by a reasoned resolution of the body conducting the criminal proceedings. The resolution must be adopted immediately after receipt of the statement of claim or after establishing circumstances indicating the absence of grounds for the person's continued participation in the proceedings in the specified procedural capacity. The person who filed the civil claim, as well as the participants in the proceedings whose interests are affected by the civil claim, shall be notified of the decision adopted. At the same time, persons recognized as civil plaintiffs must be informed of their procedural rights and obligations provided for in Article 73 of the CPC.

The persons in whose interests the prosecutor has filed a civil claim shall also be notified of the filing of such claim: the victim who, due to their helpless condition, dependence on the suspect, accused or defendant, or for other reasons, is unable to independently exercise the right to file and pursue a claim; and the relevant state bodies. A prosecutor who has filed a civil claim in defense of the interests of other persons shall not be recognized as a civil plaintiff, since their independent procedural status is determined by part 2 of Article 58 of the CPC. In this case, the plaintiff shall be the person in whose interests the claim has been filed (paragraph 5 of the above-mentioned Regulatory Resolution of the Supreme Court).

A refusal to recognize a person as a civil plaintiff may be appealed to the prosecutor or to the court (Article 105 of the CPC). A person who was refused recognition as a civil plaintiff at the pre-trial investigation stage of the case shall be entitled to file a civil claim before the end of the judicial investigation and, simultaneously, submit a motion for recognition as a civil plaintiff (part 5 of Article 167 of the CPC).

In essence, part 2 of Article 73 of the CPC is devoted to the rights of a civil plaintiff and identifies 19 principal rights, which are closely related to the rights of a victim of a criminal offense, since the same evidence in the case forms the basis for their exercise. Everything used to prove the accusation is also used to prove the grounds for a civil claim filed against a particular person.

In part, the law assigns the following meaning to these rights.

The rule set out in paragraph 1 of part 2 of Article 73 of the CPC is analogous to the rule set out in paragraph 1 of part 6 of Article 71 of the CPC. The civil plaintiff must possess information about the scope of the suspicion and accusation insofar as they relate to the harm caused to them by a socially dangerous act, in order to properly resolve the issue of full compensation for the damage.

The rule set out in paragraph 2 of part 2 of Article 73 of the CPC is analogous to the rule set out in paragraph 3 of part 6 of Article 71 of the CPC, with the difference, however, that it concerns the submission of evidence relating to the nature and amount of the damage subject to compensation.

The rule set out in paragraph 3 of part 2 of Article 73 of the CPC applies to the provision of explanations concerning the subject matter of the civil claim specified in the statement of claim, and nothing beyond that.

The rule set out in paragraph 4 of part 2 of Article 73 of the CPC relates to the additional substantiation of the nature and amount of the damage subject to compensation, in addition to the materials submitted together with the statement of claim before the person was recognized as a civil plaintiff.

The rules set out in paragraph 5 of part 2 of Article 73 of the CPC are closely related to the substance of the rules in subparagraphs 2 and 4 of part 6 of Article 71 of the CPC and facilitate the proper and comprehensive understanding of the case materials insofar as they relate to the civil claim, as well as the objective resolution of this issue during the proceedings (motions, challenges, explanations, testimony, language of presentation). At the same time, explanations are given by the civil plaintiff on the materials forming the basis of the statement of claim (paragraph 3 of part 2 of Article 73 of the CPC), whereas testimony is given concerning the proof of the nature and amount of the damage caused by the criminal offense, as a circumstance subject to proof in the criminal case (paragraph 7 of part 1 of Article 113 of the CPC).

The rules set out in paragraph 6 of part 2 of Article 73 of the CPC facilitate a deeper understanding by the civil plaintiff of the circumstances and materials of the case relating to the civil claim filed, if the plaintiff does not speak the language of the proceedings, and increase the chances of proper and full compensation for the damage through the participation of their representative in the case, for example, a lawyer.

The rules set out in paragraphs 7–8 of part 2 of Article 73 of the CPC are consistent with the rules set out in paragraphs 9–10 of part 6 of Article 71 of the CPC and are aimed at protecting the rights of the civil plaintiff when establishing the grounds, nature and amount of damage during investigative actions conducted with their participation, including in the presence of their representative.

The rules set out in paragraph 8-1 of part 2 of Article 73 of the CPC unequivocally link the possibility of applying order proceedings in a case involving a criminal misdemeanor or a minor-gravity crime exclusively to the consent of the civil plaintiff (paragraph 4 of part 2 of Article 629-1 of the CPC).

The rules set out in paragraph 9 of part 2 of Article 73 of the CPC determine the subject matter, restrictions and, accordingly, the scope of the case materials with which the civil plaintiff is entitled to familiarize themselves upon completion of the pre-trial investigation.

The rules set out in paragraph 10 of part 2 of Article 73 of the CPC also determine the forms of access to information that the civil plaintiff must possess and with which the bodies conducting the criminal proceedings are obliged to acquaint them.

The rules set out in paragraph 11 of part 2 of Article 73 of the CPC allow the civil plaintiff to use the authority of all judicial instances in protecting the grounds, as well as the nature and amount of damage caused by a criminal offense, both within the framework of the victim's appeal against the judgment or court ruling as a whole, including where the victim disagrees with the nature and amount of damage subject to compensation, and within the framework of the civil plaintiff's appeal against the judgment or court ruling solely insofar as it concerns the civil claim and its resolution by the relevant court.

The rules set out in paragraph 12 of part 2 of Article 73 of the CPC establish the right of the civil plaintiff to express their opinion during court debates following the judicial investigation, solely with regard to whether the civil claim filed by them in the case has been proven. If the victim and the civil plaintiff are the same person, or if they are different persons, the law nevertheless always distinguishes between separate statements made by the victim and by the plaintiff, both on matters concerning the proof of the accusation from the victim's perspective and on matters concerning the proof of the civil claim.

The rules set out in paragraph 13 of part 2 of Article 73 of the CPC reproduce the rules set out in paragraph 17 of part 6 of Article 71 of the CPC; however, familiarization with the minutes of the court hearing and the submission of comments thereon are permitted only insofar as they concern the court's consideration of the civil claim in the case.

The rules set out in paragraph 14 of part 2 of Article 73 of the CPC are exercised by the civil plaintiff during the proceedings through the heads of criminal prosecution bodies, the prosecution authorities or the investigating judge (Articles 100, 106–107 of the CPC).

The rules set out in paragraph 15 of part 2 of Article 73 of the CPC apply to all judicial stages of criminal proceedings that are authorized to review a judgment or court ruling in whole or in the part concerning the civil claim under the appellate and cassation procedures.

The rules set out in paragraph 16 of part 2 of Article 73 of the CPC objectively presuppose that the civil plaintiff shall familiarize themselves, both before the trial and before the judicial instances, with the nature of complaints, as well as motions of prosecutors and protests concerning the civil claim, with the subsequent submission of objections thereto.

The rules set out in paragraph 17 of part 2 of Article 73 of the CPC are connected with the preceding rules and are aimed at protecting the civil plaintiff's claims under the civil claim, either personally or through a representative.

The rules set out in paragraph 18 of part 2 of Article 73 of the CPC should be regarded as a method of promptly and without delay obtaining full or partial state monetary compensation from the Compensation Fund exclusively by victims (not civil plaintiffs) of certain elements of criminal offenses (Article 173 of the CPC). In this regard, paragraph 18 was intended to be excluded by the Law of the Republic of Kazakhstan dated 10 January 2018 “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of the Victim Compensation Fund”, which entered into force on 1 July 2018.

The rules set out in paragraph 19 of part 2 of Article 73 of the CPC are universal and impose an obligation on the bodies conducting criminal proceedings, under the law, to take security measures to protect the civil plaintiff from persons who have committed a criminal offense.

As with a victim, certain obligations are also imposed on a civil plaintiff, but not all the obligations inherent in the procedural status of a victim in the case. The scope of these obligations is established in part 8 of Article 71 of the CPC for the victim in the case (see the commentary on the provisions of part 8 of Article 71 of the CPC).

As follows from part 4 of Article 71 of the CPC, the law also grants the civil plaintiff other rights and imposes other obligations, which are mainly related to the specific features of their participation in individual criminal cases that have particular procedural characteristics, including those arising from the person's age, mental condition and other personal characteristics.

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishеvich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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