Commentary to article 166. Civil claims considered in criminal proceedings The Criminal Procedure Code of the Republic of Kazakhstan

1 In criminal proceedings, civil claims of individuals and legal entities for compensation for property and moral damage caused directly by a criminal offense or a socially dangerous act of an insane person, as well as for reimbursement of expenses for burial, treatment of the victim, amounts paid to him as insurance compensation, benefits or pensions, as well as expenses incurred in connection with participation in the inquiry, preliminary investigation and in court, including the cost of representation.

2 The proving of a civil claim filed in a criminal case shall be carried out according to the rules established by this Code.

3 If the legal relations that have arisen in connection with a civil claim are not regulated by this Code, the norms of civil procedure legislation shall apply to the extent that they do not contradict this Code.

4 If the persons referred to in paragraph one of this article have not filed a civil claim during the criminal proceedings, or have withdrawn it after filing it, or it has been left without consideration by the court, they have the right to file it in civil proceedings. The plaintiff's statement on the withdrawal of a civil claim or its abandonment without consideration is resolved by the court in accordance with this Code and the norms of civil procedural legislation.

5 A decision on a civil claim taken in the course of civil proceedings is a ground preventing the same claim from being filed against the same persons on the same grounds in the course of criminal proceedings.

1. The commented part of the first article of the law provides an exhaustive list of cases where individuals and legal entities may bring claims considered in the course of criminal proceedings: for compensation for property and moral damage caused directly by a criminal offense or a socially dangerous act of an insane person, as well as for reimbursement of funeral expenses, treatment of the victim, amounts paid to him as insurance compensation, benefits or pensions, as well as expenses incurred in connection with participation in the inquiry proceedings, preliminary investigation and in court, including the cost of representation.

Both an individual and a legal entity can be recognized as a civil plaintiff. If a legal entity is recognized as a civil plaintiff, it protects its interests in criminal proceedings through its representative. A citizen recognized as a civil plaintiff can defend his rights both personally and through a representative, but he can participate in the criminal process along with his representative.

The basis for recognizing a person as a civil plaintiff is the facts of material, as well as moral, harm caused to him directly by a crime. At the same time, if a citizen can be recognized as a victim regardless of his will, then he or a legal entity can become a civil plaintiff only according to his will and in the case of a statement of relevant claims.

2. The proving of a civil claim filed in a criminal case shall be carried out according to the rules established by this Code.  The civil plaintiff, supporting the civil claim, substantiates the claims brought by him, namely, the nature and amount of the material damage caused, the content of the moral damage and the amount of its compensation.

To this end, at all stages of the criminal proceedings, the civil plaintiff participates in the evidentiary process, presents evidence, submits petitions concerning the subject matter of the civil claim, participates in the examination of evidence – asks questions to the interrogated persons, examines physical evidence and documents, and puts questions related to the civil claim for expert approval. When appealing court decisions, the scope of the civil plaintiff's rights is less than that of the victim, since he has the right to file a complaint only against that part of the decision (verdict, ruling) that relates directly to the civil claim. If the legal relations that have arisen in connection with a civil claim are not regulated by this Code, the norms of civil procedure legislation shall apply to the extent that they do not contradict this Code.

3. According to the third part of the commented article, the persons specified in the first part of this article have the right to file a civil claim in civil proceedings if they did not file a civil claim during the criminal proceedings or withdrew it after it was filed, or it was left without consideration by the court.

The victim's claim for compensation for moral damage may also be considered in the course of criminal proceedings in the case. If such a claim was not brought in a criminal case or was brought, and then was withdrawn or left without consideration by the court, then the victim has the right to bring it also in civil proceedings.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

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