Commentary on Article 74. Civil Defendant of the Criminal Procedure Code of the Republic of Kazakhstan

1. A civil defendant is a natural or legal person against whom a claim has been filed in a criminal case.

2. For the purpose of protecting their interests in connection with the claim brought against them, a civil defendant has the right to:

1) know the substance of the suspicion, the accusation and the civil claim;

2) object to the claim and file a counterclaim;

3) provide explanations and testimony on the merits of the claim brought against them;

4) have a representative;

5) submit materials for inclusion in the criminal case;

6) file motions and challenges;

6-1) express consent to the application of summary proceedings in a case concerning a criminal misdemeanor or a minor-gravity crime;

7) upon completion of the investigation, examine the materials relating to the civil claim and make extracts of any information, in any amount, with the exception of information constituting state secrets;

8) know about decisions adopted that affect their interests and receive copies of procedural decisions relating to the civil claim filed;

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

10) make statements during court debates and lodge complaints against the actions (inaction) and decisions of the body conducting the criminal proceedings;

11) examine the minutes of the court hearing and submit comments thereon;

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

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

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

apply for the adoption of security measures.

3. A civil defendant shall bear the obligations provided for in Part Eight of Article 71 of this Code.

4. A civil defendant shall also have other rights and bear other obligations provided for by law.

Note. Article 74 was amended by the Laws of the Republic of Kazakhstan dated 11 July 2017 No. 91-VI (shall enter into force upon the expiry of ten calendar days after the date of its first official publication); and dated 21 December 2017 No. 118-VI (shall enter into force upon the expiry of ten calendar days after the date of its first official publication).

The filing of a statement of claim by a person (natural or legal) and the recognition of that person as a civil claimant inevitably entails the appearance, at a certain stage of the proceedings, of a person against whom the claim is directed and who, consequently, must be designated in the case as a civil defendant.

And if such a person appears in criminal proceedings, that person shall bear full liability for the harm caused to the victim in cases involving private, private-public and public prosecution and criminal prosecution. A civil defendant, within the meaning of subparagraphs 18) and 25) of Article 7 of the CPC, represents the defence party and is classified as a participant in criminal proceedings. Such a person is not necessarily the individual who committed the criminal offence. Civil defendants may be natural persons (legal representatives, representatives) and legal entities that bear liability for harm caused by a criminal offence or by a socially dangerous act committed by an insane person. Useful information on issues of compensation for harm is contained in the Civil Code (Special Part).

For example, where harm is caused by minors who have not attained the age of fourteen (young children), such harm shall be compensated by their legal representatives unless they prove that the harm did not arise through their fault. If a young child requiring guardianship was placed in an appropriate educational institution, medical institution, social protection institution or another similar institution which, by virtue of law, acts as the child's guardian, that institution shall be obliged to compensate for the harm caused by the young child unless it proves that the harm did not arise through its fault. If a young child caused harm while under the supervision of an educational institution, an educational, medical or other institution obliged to supervise the child, or a person obliged to exercise supervision on the basis of a contract, such institutions and persons shall be liable for the harm unless they prove that the harm did not arise through their fault in the exercise of supervision. The obligation of legal representatives, educational institutions, educational, medical and other institutions to compensate for harm shall not cease upon the young child's attaining the age of majority or receiving property sufficient to compensate for the harm. If the legal representatives have died or they, as well as the other persons referred to above, do not have sufficient means to compensate for harm caused to the victim's life and health, while the person who caused the harm, having subsequently acquired full legal capacity, possesses such means, the court, taking into account the financial situation of the victim and the person who caused the harm, as well as other circumstances, shall be entitled to decide that the harm be compensated in full or in part from the property of the person who caused the harm (Article 925 of the Civil Code).

As a general rule, minors aged between fourteen and eighteen shall independently bear liability for the harm caused by them on general grounds. Where a minor aged between fourteen and eighteen has no property or other sources of income sufficient to compensate for the harm, the harm shall be compensated in full or in the missing part by the minor's legal representatives unless they prove that the harm did not arise through their fault. If a minor aged between fourteen and eighteen who requires trusteeship was placed in an appropriate educational institution, medical institution, social protection institution or another similar institution which, by virtue of law, acts as the minor's trustee, such institutions shall be obliged to compensate for the harm in full or in the missing part unless they prove that the harm did not arise through their fault. The obligation of legal representatives and the relevant institution to compensate for harm shall cease when the person who caused the harm attains the age of majority, or when such person acquires property or other sources of income sufficient to compensate for the harm before attaining the age of majority, or when such person acquires legal capacity before attaining the age of majority (Article 926 of the Civil Code).

If property damage resulted from the joint criminal actions of several persons, the convicted persons, both adults and minors, shall bear joint and several material liability in accordance with Article 932 of the Civil Code, provided that they have sufficient earnings and property. Pursuant to Part Two of this Article of the Civil Code, the court, upon the application of the victim and in the victim's interests, may impose proportional liability on persons who jointly caused the harm, etc. Citizens and organisations involved as defendants in cases provided for by law shall compensate, in proportionate shares, for damage caused by convicted minors (paragraph 28 of Regulatory Resolution No. 6 of the Supreme Court of the Republic of Kazakhstan of April 2002, “On Judicial Practice in Cases Concerning Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Antisocial Acts”).

In cases where property damage is caused by a citizen recognised as legally incapable, such damage shall be compensated by that person's guardian or by an organisation obliged to supervise that person, unless they prove that the harm did not arise through their fault. The obligation of the guardian or organisation to compensate for harm caused by a citizen recognised as legally incapable shall not cease even if that person's legal capacity is restored. If the guardian has died or does not have sufficient means to compensate for the harm, while the person who caused the harm possesses such means, the court, taking into account the financial situation of the victim and the person who caused the harm, as well as other circumstances, in particular the restoration of the legal capacity of the person who caused the harm, shall be entitled to decide that the harm caused to the victim's life and health be compensated in full or in part from the property of the person who caused the harm (Articles 26 and 928 of the Civil Code), etc.

Regulatory Resolution No. 1 of the Supreme Court of 20 June 2005, “On the Consideration of a Civil Claim in Criminal Proceedings”, specifically stipulates that the mere admission of a civil claim by the defendant (civil defendant, their representatives) is insufficient for the civil claim to be granted (paragraph 22). Before a decision is made on the civil claim, it is necessary to establish the defendant's guilt in committing the criminal offence or the fact that an insane person committed an act prohibited by criminal law, as well as the causal relationship between their acts and the harm that occurred. For these purposes, courts must carefully establish by which act or omission of the defendant or the insane person the damage was caused, by what evidence this is confirmed, what the amount of the damage is, what it consists of, who must bear material liability in accordance with the law, and in whose favour recovery must be ordered by the judgment or ruling.

Where the defendant fully admits their guilt, including the amount of harm caused by the criminal offence and the claims brought against them, no examination of the civil claim shall be conducted when the case is heard under the abbreviated procedure. Among other things, the abbreviated procedure for judicial consideration of a case, insofar as it concerns the civil claim, consists solely of clarifying issues relating to the time limits and procedure for payments under the civil claim and procedural costs. If the defendant (civil defendant and their representatives) does not admit the civil claim, this entails the conduct of a full judicial investigation in the criminal case, including the examination of circumstances relating to the civil claim (Article 382 of the CPC).

When a civil claim is filed in a criminal case, only the claimant is exempt from payment of the state duty; therefore, where the claim is granted in full or in part, the court shall resolve in the judgment the issue of recovering the state duty from the defendant (defendants) in favour of the state, in full or in proportion to the part of the claim granted (paragraph 28 of Regulatory Resolution No. 1 of the Supreme Court of 20 June 2005, “On the Consideration of a Civil Claim in Criminal Proceedings”).

Above, we have examined the general legal provisions concerning the role and position of a civil defendant in criminal proceedings. For a complete understanding of the latter's procedural status, it is necessary to conduct a fragmentary analysis of their rights in a criminal case. The rights of a civil defendant are established in Part 2 of Article 74 of the CPC, where the law identifies 15 such rights as fundamental.

The provisions of subparagraph 1) of Part 2 of Article 74 of the CPC are reflected in the rights of all principal participants in criminal proceedings (the suspect, accused, defendant, victim and civil claimant), which is entirely understandable, since a criminal offence substantially affects their rights in criminal proceedings, including those of the civil defendant in the case. Having a clear understanding of the scope (substance) of the suspicion, accusation and civil claim, the civil defendant will be able to properly exercise their defence in order to avoid compensating, either in full or in part, for harm that they may not have caused; to compensate specifically for the type of harm arising from the case materials; and so forth. Therefore, in all cases, copies of the decision recognising a person as a suspect, the decision on the qualification of the suspect's act, the indictment, the protocol on a criminal misdemeanor, the decision on the application of summary proceedings, the procedural agreement, the decision to terminate the criminal case, as well as the statement of claim, shall be served on them.

The provisions of subparagraph 2) of Part 2 of Article 74 of the CPC concern, on the one hand, the submission of objections to a civil claim (disagreement with the claim as a whole, disagreement with the nature or amount of the harm), regardless of the procedure under which the case is conducted (private, private-public or public), while, on the other hand, this right is generally exercised in cases of private prosecution and accusation and is associated with the defendant filing a counter-complaint and the consideration of a counter-accusation, in connection with which the issue of a counter-civil claim may also arise (Part 8 of Article 408, Article 411 of the CPC).

The provisions of subparagraph 3) of Part 2 of Article 74 of the CPC are similar to the provisions of subparagraphs 3) and 5) of Part 2 of Article 73 of the CPC concerning the civil claimant, with the sole difference that the civil defendant provides explanations regarding the statement of claim filed in the case and testimony regarding the nature and amount of the harm caused, as a circumstance that must be established in every criminal case.

The provisions of subparagraph 4) of Part 2 of Article 74 of the CPC correspond to the provisions of Article 77 of the CPC, which allows a civil defendant to have a representative in the case. In this regard, it should be noted that the defence counsel of the person who committed the criminal offence may simultaneously act as the representative of the civil defendant in that case, which is characteristic of cases in which the subject of the criminal offence and the civil defendant are one and the same person. Alternatively, these may be different persons engaged in the case as civil defendant representatives on their own initiative or at the request of their legal representatives and defence counsel.

The provisions of subparagraph 5) of Part 2 of Article 74 of the CPC include the standard right of any participant in criminal proceedings, provided for by the CPC, to demonstrate reasonable initiative in collecting evidence in the case (information, objects and documents) and submitting it to the body conducting the criminal proceedings. In this case, the materials in question undoubtedly concern various aspects of the nature and amount of the harm, including evidence refuting its existence in whole or in part.

The provisions of subparagraph 6) of Part 2 of Article 74 of the CPC are similar to the rights of the principal participants in criminal proceedings and are dictated by the need to ensure a complete, objective and impartial examination of the materials of the criminal case insofar as they concern proof of the grounds, nature and amount of the harm, with the participation of an interpreter and a representative.

The provisions of subparagraph 6-1) of Part 2 of Article 74 of the CPC mean that the civil defendant must consent to the application of summary proceedings in a case concerning a criminal misdemeanor or a minor-gravity crime; that is, in the absence of such consent, there are no grounds for conducting this form of pre-trial investigation in the criminal case (subparagraph 4) of Part 2 of Article 629-1 of the CPC).

The provisions of subparagraph 7) of Part 2 of Article 74 of the CPC determine the optimal scope and limitations of the civil defendant's access to the materials of a criminal case upon completion of the investigation, which is necessary for the defendant and their representative to defend themselves in court against the civil claim brought against them.

The provisions of subparagraph 8) of Part 2 of Article 74 of the CPC correspond to many of the rights of a civil defendant; however, the law emphasises this right in order to ensure that the civil defendant can respond promptly to decisions adopted in the case insofar as they concern the civil claim brought against them.

The provisions of subparagraph 9) of Part 2 of Article 74 of the CPC characterise the civil defendant's right to be heard in court at any judicial instance, in accordance with the procedure established by the CPC, in order to defend their interests in relation to the civil claim brought against them, both within the framework of a general appeal against a judgment or court ruling and within the framework of an appeal against judicial decisions solely insofar as they concern the civil claim brought in the case.

The provisions of subparagraph 10) of Part 2 of Article 74 of the CPC simultaneously characterise the civil defendant's narrow and broad rights in the case. In the first instance, the civil defendant was and remains a participant in the court debates and is required to make a statement when a civil claim has been brought against them in the case; in the second instance, this concerns the right to appeal, in accordance with the procedure established by the CPC, against both pre-trial and judicial actions and decisions of the bodies conducting criminal proceedings insofar as they concern the civil claim brought in the case.

The provisions of subparagraph 11) of Part 2 of Article 74 of the CPC constitute a form of protection of the civil defendant against the civil claim in the case and ensure that the defendant fully and correctly understands the course, content and results of the examination of evidence in court in this regard, as well as their arguments in defence against the civil claim, recorded in the minutes of the court hearing of the relevant court.

The provisions of subparagraph 12) of Part 2 of Article 74 of the CPC are fundamental in nature and grant the civil defendant the right to appeal a judgment or court ruling insofar as it concerns the civil claim, in compliance with the rules governing judicial instances, before the relevant court through appellate or cassation proceedings.

The provisions of subparagraph 13) of Part 2 of Article 74 of the CPC constitute an integral part of the preceding provision, since they concern the review of a judicial decision insofar as it relates to the civil claim brought, through supervisory review by higher courts initiated by the civil claimant and other participants in criminal proceedings. The bodies conducting criminal proceedings must, in all cases, notify the civil defendant of such complaints, motions and protests so that the defendant has the opportunity to submit written objections and additionally be heard in court at the relevant judicial instance.

The provisions of subparagraph 14) of Part 2 of Article 74 of the CPC develop the preceding provisions but concern cases in which the civil defendant participates in court proceedings relating to the consideration of such complaints, motions and protests of the prosecution party connected with the civil claim brought in the case.

The provisions of subparagraph 15) of Part 2 of Article 74 of the CPC are universal in nature and are aimed at ensuring the safety of the civil defendant in criminal proceedings and meet the practical needs of combating crime.

Similarly to a victim and a civil claimant, certain obligations are also imposed on a civil defendant, the scope of which is established in Part 8 of Article 71 of the CPC (see the commentary on the provisions of Part 8 of Article 71 of the CPC).

As follows from Part 4 of Article 74 of the CPC, the law also imposes other rights and obligations on the civil defendant, which are mainly associated with the specific features of their participation in individual criminal cases involving particular procedural characteristics, including those depending on the age, mental and other personal characteristics of the individual.

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan. Author: Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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