Commentary on Article 76. Representatives of the Victim, Civil Claimant and Private Prosecutor of the Criminal Procedure Code of the Republic of Kazakhstan
1. Representatives of the victim, civil claimant and private prosecutor may be lawyers 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.
2. For the protection of the rights and legitimate interests of victims who are minors or do not speak the language of the proceedings, or who, 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 be mandatorily involved in the proceedings.
In such cases, a lawyer chosen by the victim or his or her legal representative shall be admitted as the victim's representative. If a lawyer has not been invited by the victim or his or her legal representative, the participation of a lawyer shall be ensured by the body conducting the criminal proceedings through the issuance of a resolution binding upon the professional organization of lawyers or its structural subdivision. The body conducting the criminal proceedings shall not be entitled to recommend inviting a specific lawyer to act as defense counsel.
If the victim or his or her legal representative has no financial means, the lawyer's remuneration shall be paid from budgetary funds in accordance with the procedure established by this Code.
3. Legal representatives and representatives of the victim, civil claimant and private prosecutor shall have the same procedural rights as the individuals and legal entities they represent, within the limits provided for by this Code.
4. A representative of the victim, civil claimant or private prosecutor shall not be entitled to perform any actions contrary to the interests of the participant in the proceedings whom he or she represents.
5. The personal participation of the victim, civil claimant and private prosecutor in the proceedings shall not deprive them of the right to have a representative in the case.
First of all, it is necessary to determine what is encompassed by the concept of a “representative.” Article 7, subparagraph 32, of the CPC establishes: “Representatives are persons authorized, by virtue of law or agreement, to represent the legitimate interests of the victim, civil claimant, civil defendant and private prosecutor.” They are participants in the proceedings and persons who represent the legitimate interests of individual participants on both the defense side and the prosecution side (subparagraphs 2 and 18 of Article 7 of the CPC). Within the meaning of Part 1 of Article 76 of the CPC, they include lawyers and other persons.
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Judging by the title of the article, the persons entitled to have a representative in a criminal case are: the victim, the civil claimant and the private prosecutor. However, this is not an exhaustive list. Part 2 of Article 76 of the CPC specifically stipulates that if the victim is a minor or does not speak the language of the proceedings, or is deprived of the ability to independently protect his or her rights and legitimate interests due to his or her physical or mental condition, his or her legal representatives and representatives shall be mandatorily involved in the proceedings. In such cases, a lawyer shall be engaged as the representative of such a victim. Thus, this concerns three categories of persons whose interests in the proceedings must be represented by a lawyer by virtue of law, at the invitation of the persons themselves or their legal representatives, or of the body conducting the criminal proceedings.
Thus, the victim (an individual or legal entity), the civil claimant and the private prosecutor are entitled to conduct their cases in criminal proceedings personally, in the presence of a representative, or through a representative, for example, as indicated above, a lawyer. The law establishes this guarantee by stipulating that, if the victim or his or her legal representative has no financial means, the lawyer's remuneration shall be paid from budgetary funds (Part 4 of Article 76 of the CPC), that is, on the basis of the aforementioned legal acts of the Government of the Republic of Kazakhstan and the Minister of Justice of the Republic of Kazakhstan concerning, respectively, the amount of remuneration and the Rules for payment for state-guaranteed legal assistance provided by a lawyer (see the commentary to Parts 5–6 of Article 68 of the CPC) (see also paragraphs 1, 3–7 and 16–17 of Regulatory Resolution No. 10 of the Supreme Court of the Republic of Kazakhstan dated June 29, 2018, “On the Recovery of Procedural Costs in Criminal Cases”).
This is a normal situation, and it corresponds to the right of a suspect or accused person to have a lawyer as defense counsel, and to the right of a civil defendant to have a lawyer as a representative.
A lawyer's authority to conduct a specific criminal case shall be confirmed by his or her certificate and written notification of defense (representation), as provided for by the Law of the Republic of Kazakhstan “On Advocacy and Legal Assistance.” Requiring any other documents confirming a lawyer's authority to conduct a specific criminal case is prohibited. Furthermore, the performance by a lawyer of procedural actions provided for in Part 1 of Article 60 of the Civil Procedure Code shall be certified by a power of attorney. The power of attorney shall be submitted to the court in written form or in the form of an electronic document certified by the electronic digital signature of the principal. A power of attorney on behalf of a legal entity shall be issued by the head of the relevant legal entity or another authorized person (Article 61 of the CPC, Parts 1 and 6 of Article 167 of the Civil Code).
A representative of the victim (private prosecutor) or civil claimant shall be introduced into the criminal case and removed from participation in the case by a resolution of the body conducting the criminal proceedings where grounds for his or her disqualification exist: 1) if he or she previously participated in the case as a judge, prosecutor, investigator, inquiry officer, court hearing secretary, court bailiff, witness, expert, specialist, interpreter or attesting witness; 2) if he or she is related to, or otherwise personally dependent upon, an official who has participated or is participating in the investigation or judicial examination of the case; 3) if he or she provides or has previously provided legal assistance to a person whose interests are contrary to those of the person under his or her protection or the principal, or is related to such persons or otherwise personally dependent upon them; 4) if he or she is not entitled to act as defense counsel or representative by virtue of law or a court decision. During pre-trial investigation, the issue of removing a representative of the victim (private prosecutor) or civil claimant from participation in the case shall be resolved by the prosecutor, and during court proceedings, by the court examining the case (Article 94 of the CPC).
6. By establishing the status of a representative, the CPC equates the rights of the persons represented with the rights of their representative, while simultaneously imposing a prohibition on the representative from, under any circumstances, taking actions contrary to the interests of those persons (Parts 3–4 of Article 76 of the CPC). Equality between the representative's rights and the procedural rights of the individuals and legal entities represented by him or her does not at all mean that their rights are absolutely identical, as is indicated even by the wording of the provision in Part 3 of Article 76 of the CPC. For example, both the victim and the representative are entitled to provide explanations regarding the civil claim filed; however, only the victim, as an eyewitness to the event of the criminal offense and its victim, is entitled to give testimony concerning such a criminal-law and criminal-procedural matter as the nature and amount of the harm caused. In this regard, by analogy of law, the prohibitions contained in Part 5 of Article 70 of the CPC, which apply to defense counsel when providing legal assistance in a criminal case, are useful.
In general, pursuant to Part 2 of Article 77 of the CPC, the powers of a representative acting under an assignment are governed by Articles 58 and 60 of the Civil Procedure Code. At the same time, the representative's authority to perform each of the actions specified in Part 1 of Article 60 of the Civil Procedure Code must be specifically provided for in the power of attorney issued by the person represented.
7. There is one more important detail. Part 1 of Article 76 of the CPC mentions, alongside a lawyer, “other persons” who are authorized by virtue of law or agreement to represent the legitimate interests of the victim and others in criminal proceedings. The list of such persons is specified in Part 1 of Article 58 of the Civil Procedure Code. According to its provisions: “The following persons may act as representatives under an assignment in court: 1) lawyers; 2) employees of legal entities, in cases involving those legal entities, and employees of state bodies, in cases involving those state bodies and their territorial subdivisions; 3) authorized representatives of trade unions, in cases involving workers, employees, as well as other persons whose rights and interests are protected by these trade unions; 4) authorized representatives of organizations which, by law, charter or regulation, are granted the right to protect the rights and interests of members of such organizations, as well as the rights and interests of other persons; 5) one of the co-participants acting on behalf of the other co-participants; 6) other persons with higher legal education admitted by the court at the request of the persons participating in the case.”
On this issue, the Supreme Court, in Regulatory Resolution No. 2 dated March 20, 2003, “On the Application by Courts of Certain Provisions of Civil Procedural Legislation” (paragraph 8), further elaborated on the provisions of Article 58 of the Civil Procedure Code. In particular, it additionally explained: “For the purposes of subparagraph 6 of Article 58 of the CPC, other persons admitted by the court as representatives shall be understood to mean persons who are not listed in subparagraphs 1), 2), 3), 4) and 5) of this Article, but who have higher legal education and represent the interests of a party on the basis of a written power of attorney. Other persons with higher legal education may also be admitted by the court upon the oral application of a person participating in the case (the principal), which shall be entered into the minutes of the court hearing. The power of attorney issued to the representative must list those procedural actions provided for in Part 1 of Article 60 of the CPC which the representative is entitled to perform in court on behalf of the principal. If the specific powers of the representative are not specified in the power of attorney issued to him or her, the representative shall be entitled to perform procedural actions (familiarizing himself or herself with the case materials, making extracts therefrom, filing motions, providing explanations on the merits of the dispute, etc.), except for those actions for which authority must be specifically granted to the representative in accordance with Article 60 of the CPC. An order issued by a legal consultation office or a law firm grants a lawyer the right to represent in court the interests of the person who sought legal assistance (familiarizing himself or herself with the case materials, making extracts therefrom, filing motions, providing explanations on the merits of the dispute, etc.), but does not replace a power of attorney and does not grant the lawyer the right to perform the procedural actions provided for in Part 1 of Article 60 of the CPC” (emphasis added by the author — M.K.).
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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