Commentary on Article 77. Representatives of the Civil Defendant of the Criminal Procedure Code of the Republic of Kazakhstan
1. Representatives of a civil defendant shall be recognized as lawyers and other persons who, by virtue of law, are authorized to represent the legitimate interests of the civil defendant in criminal proceedings and who have been admitted to participate therein by a resolution of the body conducting the criminal proceedings.
2. Representatives of the civil defendant shall have the same procedural rights as the individuals or legal entities they represent, in accordance with the Civil Procedure Code.
3. A representative of a civil defendant shall not be entitled to perform any actions contrary to the interests of the participant in the proceedings whom they represent.
4. The personal participation of a civil defendant in the proceedings shall not deprive them of the right to have a representative in the case.
In its title, Article 77 of the CPC clearly defines a civil defendant as a participant in criminal proceedings who is entitled to have a representative in the case. The procedural status of a representative of a civil defendant, in principle, does not differ from the procedural status of a representative of a civil claimant. At the same time, not all civil defendants make use of legal assistance provided by a representative. This is due to the fact that, as a rule, the accused and the civil defendant are one and the same person (formalized by separate resolutions of the body conducting the criminal proceedings), whose interests are represented by a defense counsel (lawyer). In general, the list of persons who may act as representatives under an authorization is established by Article 58 of the Civil Procedure Code.
A representative of a civil defendant usually appears in situations where the accused and the civil defendant are not the same person, for example, when property damage is caused by a criminal offense committed by a minor or an incapacitated person. In this case, the representative (lawyer), under an agreement, protects the legitimate interests of the parents, guardians, or trustees of the above-mentioned persons (in essence, the representative protects the rights and interests of their legal representatives), who are responsible for the actions of these persons. A legal entity that, by virtue of law, bears property liability for damage caused by a criminal offense or an act committed by an insane person shall also be entitled to have a representative.
The powers of a representative, pursuant to Part 2 of Article 77 of the CPC, are governed by the provisions of Article 60 of the Civil Procedure Code and, as described above, must be specifically provided for in the power of attorney issued by the represented person (see the commentary to Parts 1, 3–4 of Article 76 of the CPC). Like a representative of a civil claimant, a representative of a civil defendant enjoys the same rights as the person represented by them. However, the rights of a representative of a civil defendant do not include performing actions that, by their nature, may only be performed personally by the represented person (for example, only the civil defendant may give testimony on the merits of the claim). Similarly, they are not entitled to perform actions that are prohibited in the activities of a defense counsel in the case (Part 5 of Article 70 of the CPC).
Persons who have not attained the age of majority or who are under guardianship or trusteeship; persons who have participated in the case as a judge, prosecutor, investigator, inquiry officer, court hearing secretary, court bailiff, witness, expert, specialist, interpreter, attesting witness, etc. (Article 94 of the CPC) may not act as representatives of a civil defendant. The issue of removing such a representative from participation in the case shall be resolved by the body conducting the criminal proceedings through the issuance of a reasoned resolution.
2020 Commentary 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 Kazakhstan National Academy of Natural Sciences, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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