On judicial practice in cases of private prosecution

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 13.

     The footnote. The title has been amended in Kazakh, the text in Russian is not changed by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

     The footnote. The entire text has been amended in Kazakh, the text in Russian is not changed by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

     In order to ensure uniform and correct application of legislation in criminal proceedings on private charges, and in connection with issues arising in judicial practice, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

    The footnote. The preamble has been amended in Kazakh, the text in Russian is not changed by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When conducting criminal proceedings on private charges, courts should strictly and unswervingly comply with the requirements of the law in order to ensure everyone's right to judicial protection of their honor, dignity, personal inviolability and other constitutional rights.

The reason for initiating a private prosecution is the complaint of the victim: an individual who has reached the age of 18, a legal entity, legal representatives and representatives of the victim specified in articles 71, 76 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter - CPC).

     In accordance with the fourth part of Article 32 of the CPC, private prosecution proceedings may be initiated by the prosecutor even in the absence of a complaint from the victim, if the act affects the interests of a person who is in a helpless or dependent state, or is unable to independently exercise his rights for other reasons.

     The courts should bear in mind that in private prosecution proceedings against persons with privileges and immunity from criminal prosecution, the specifics of the proceedings provided for in Chapter 57 of the CPC apply.

    Private charges against persons with privileges and immunity from criminal prosecution are initiated only by the prosecutor in accordance with the procedure and on the grounds provided for by law.

    The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

    2-1. When determining the jurisdiction of private prosecution cases, it is necessary to comply with the provisions of article 314 of the CPC that a criminal case must be considered in court at the place where the criminal offense was committed.

    When determining the jurisdiction of cases of criminal offenses provided for in Article 131 of the Criminal Code, the following provisions should be taken into account. The composition of an insult is considered finished when the insult is heard (received) by the person addressed to it. In this regard, criminal cases on the fact of an insult expressed by sending to the addressee by mail or fax, or through social networks, or verbally by telephone, should be considered by the court at the location of the person against whom the insult was expressed.

    The footnote. The regulatory resolution was supplemented by paragraph 2-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

The courts have no right to refuse to accept a complaint for trial due to the absence of an event or composition of a criminal offense in the acts described in the complaint, including on grounds of insignificance of the deed, lack of evidence, failure to include data on a previous criminal record, the mental state of the accused, etc. in the complaint.

    The refusal to accept the victim's complaint for trial is carried out in cases when the person who filed the complaint did not comply with the judge's instructions to bring the complaint into the appropriate procedural form, the complaint was filed by the wrong person, etc. The refusal to accept the victim's complaint for trial is formalized by a reasoned decision of the judge.

    The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

The procedural document that initiates a private prosecution is the victim's complaint about bringing a person to criminal responsibility, and it defines the limits of the trial. At the same time, the court does not rule on the initiation of criminal proceedings. When accepting a complaint, the judge must be guided by the first part of Article 409 of the CPC and make sure that it contains all the necessary data for its proper resolution, in particular: when, by whom and where the illegal act was committed, what exactly it was expressed in, and what confirms the victim's request to bring the person against whom the complaint was filed to criminal responsibility..

    An oral or anonymous complaint from the victim will not be accepted for trial.

    The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

A victim who has filed a complaint with the court in a private prosecution case, in which he asks to bring the guilty person to criminal responsibility, must be warned by the judge about criminal liability for knowingly false denunciation. This is noted in the complaint or a separate protocol is drawn up, signed by the applicant.

Upon receipt by the pre-trial investigation authorities, applications and reports of a criminal offense must be registered in the Unified Register of Pre-Trial Investigations and urgent investigative actions must be carried out within three days.

     If it is established that the communication raises the issue of responsibility for the commission of a criminal offense, the prosecution of which is carried out in private, and there is no complaint from the victim himself, the proceedings on this communication are subject to termination on the grounds provided for in paragraph 5) of the first part of Article 35 of the CPC. In such cases, the decision to terminate the criminal case must necessarily indicate that the case is terminated not on the fact of the act, but in the absence of a complaint from the victim on a private charge, which does not prevent the victim (private prosecutor) from filing a complaint in accordance with the procedure provided for by law.

     If a complaint in a private prosecution case is filed by the victim himself, then it, together with the materials of urgent investigative actions in accordance with part five of Article 179 of the CPC, is sent to the district and equivalent court in accordance with the territorial jurisdiction of the case, which is notified to the applicant.

    If the appeal indicates the presence, along with offenses of private prosecution, of other offenses prosecuted in a private-public or public manner, the pre-trial body must decide on these offenses.

    The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

According to a complaint received from the criminal prosecution authorities or directly sent by the applicant to the court, the judge should summon the victim and find out whether he supports his request to bring the person to criminal responsibility, as well as other circumstances necessary for its proper resolution.

     In cases where the complaint does not comply with the requirements specified in the second part of Article 408 of the CPC, the judge, in accordance with the first part of Article 409 of the CPC, issues a resolution in which he suggests that the author of the complaint bring it into compliance with the specified requirements and sets a time limit for this.

     The period specified in the second part of Article 409 of the CPC is calculated from the date of receipt of the complaint that meets the requirements of the second part of Article 408 of the CPC. If the court sends a complaint to the person who filed it, in order to bring it into compliance with the requirements provided for by law, the time period established in the second part of Article 409 of the CPC should be calculated from the date of receipt of the complaint in the appropriate form.

    A judge, in accordance with article 409 of the CPC, is obliged to send a complaint under investigation without being accepted for his proceedings if the content of the complaint clearly indicates the existence of a criminal offense being prosecuted privately or publicly.

    The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When accepting a complaint for its proceedings, the court must indicate in its decision on recognizing the person who filed the complaint as a victim.

     To draw the attention of the courts to the obligation to comply with the procedural rules in the consideration of private prosecution cases, which grant the victim the right to support the prosecution. The prosecution's support is not limited to participation in court debates, but is carried out throughout the trial by filing petitions, presenting evidence, etc.

     In the case of combining counter-charges in one proceeding, the court determines the order of the speeches of the participants in the judicial debate. The victim or his legal representative formulates and substantiates his accusation himself, and has the right to change it in a way that does not worsen the defendant's situation.

One of the features of private prosecution proceedings is the possibility of reconciliation between the victim and the person against whom the complaint has been filed. Reconciliation of the parties contributes to the prevention of offenses and crimes, therefore, courts should take measures to achieve this goal, and when receiving a complaint, the judge is obliged to explain to the victim his right to reconciliation with the person he asks to be held accountable. In addition, the judge must explain to the applicant that if the accusation is not confirmed, he will be charged with the obligation to reimburse court costs.

     If reconciliation has taken place, the judge shall order the termination of the case on the basis of paragraph 2 of the first part of Article 412 of the CPC. In cases where reconciliation has not been achieved, the judge appoints a hearing of the case in accordance with the rules of article 322 of the CPC.

     In the preparatory part of the court session, the court is obliged, in accordance with the requirements of part four of Article 411 of the CPC, to explain to the victim his right to reconciliation with the accused, including through mediation, regardless of the fact that before the appointment of the case to the hearing, the judge took measures for reconciliation, but it was not achieved. Reconciliation is possible at any stage before the court is removed to the deliberation room for sentencing.

     In each case, the courts should explain to the victims that, in accordance with part nine of Article 408 of the CPC, in case of refusal of charges and reconciliation with the accused, the possibility of re-filing a complaint about bringing the same person to criminal responsibility for the same acts is excluded.

     A victim who is under 18 years of age on the day of filing a complaint with the court, or if he is unable to account for his actions and direct them due to physical or mental disabilities, has no right to demand the termination of the case for reconciliation of the parties without the consent of his legal representative.

    The actions of the judge to reconcile the parties in all cases should be reflected in the decision on the acceptance of the complaint for trial and the appointment of a court session, or in the protocol, if this happened at a court session.

    The footnote. Paragraph 9, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04.04.2013 No. 2 (effective from the date of official publication); dated 20.04.2018 No. 8 (effective from the date of the first official publication).

A court may choose a preventive measure against a person about whom a private prosecution case is being considered. At the same time, courts should take into account that a preventive measure in the form of detention can be applied when accused of committing a minor crime, according to the first part of Article 147 of the CPC, only in exceptional cases and in strict accordance with the requirements of the law.

    The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When the court receives, along with the victim's complaint, a counter-complaint from a person against whom a complaint has been filed by a private prosecutor or his representative, the judge, on the basis of part eight of Article 408 of the CPC and part three of Article 411 of the CPC, must combine both complaints into one proceeding and consider them simultaneously if the victim's complaint and the counter-complaint are related to the subject of criminal proceedings.- the punishable act for which proceedings have been initiated.

     The consolidation of complaints into one proceeding is allowed before the start of the judicial investigation by decision of the judge.

    Since when combining a counter-complaint in one proceeding with a victim's complaint, both persons appear in the same process not only as victims, but also as defendants, the court should ensure that all procedural rights granted by law to each of them, both victim and defendant, are respected.

    The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

If a counter-complaint was received during the trial, then if the issue of joint consideration is resolved positively, the court must accept the counter-complaint into its proceedings. In order to ensure the right to protection of a person against whom a counter-complaint has been filed, at his request, the trial, in accordance with the requirements of part three of Article 411 of the CPC, may be postponed for a period of no more than three days. In this case, the court must hand over a copy of the counter-complaint, as well as carry out other procedural actions, if necessary.

    The footnote. Paragraph 12, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04.04.2013 No. 2 (effective from the date of official publication); dated 20.04.2018 No. 8 (effective from the date of the first official publication).

When appointing a court hearing on private prosecution cases, the courts must strictly comply with the requirements of part four of Article 409 of the CPC. The main trial must begin no earlier than three days after the parties are notified of the time and place of the case, as well as from the moment the defendant receives a copy of the judge's decision to accept the complaint for trial.

     In cases provided for in article 67 of the CPC, as well as if a public prosecutor is involved in court proceedings, the court must take measures to appoint a defense attorney if the defendant or his representative has not invited a defense attorney on their own. With the participation in court of a representative of a private prosecutor, a civil plaintiff and a public prosecutor, according to paragraphs 8), 9) of the first part of Article 67 of the CPC, in order to implement the principle of competition, the participation of the defendant's defense counsel is mandatory.

    The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

In accordance with part six of Article 411 of the CPC, if a private prosecutor or his representative does not appear at a court hearing without valid reasons, if the prosecutor did not personally participate in the consideration of the case, the private prosecution case is subject to termination on the grounds provided for in paragraph 2) the first part of Article 35 of the CPC, that is, due to the absence of elements of a criminal offense in the act.

     In this regard, the court must in each case clarify the reasons for the failure of the private prosecutor or his representative to attend the court session, bearing in mind that the circumstances specified in the second part of Article 157 of the CPC are valid reasons. Termination of production is possible only if there is reliable evidence that these reasons are not respected.

    The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

In accordance with paragraph 2) In the second part of Article 335 of the CPC, it is allowed to consider cases of private prosecution in the absence of the defendant, who is outside the Republic of Kazakhstan and avoids appearing in court.

     At the request of the defendant, the case is a private prosecution, in accordance with paragraph 1) the second part of Article 335 of the CPC and the sixth part of Article 411 of the CPC may be considered on the merits in his absence.

    If his representative participates instead of the defendant, the last word is not given due to the absence of the defendant.

    The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

In the event of the death of the victim, until the moment he submits a complaint to the court for private prosecution, the case cannot be initiated on the basis of a statement from his relatives, due to the fact that they do not provide for the succession of criminal prosecution.

    In the event of the death of the defendant after the initiation of a private prosecution, but before it is considered by the court, the case is subject to termination, except in cases where the defendant's close relatives insist on considering the case in order to rehabilitate him.

    The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

If, when considering a case initiated on the complaint of a private prosecutor or his representative, it is established that the defendant's act is subject to prosecution in a private-public or public manner, the court, in accordance with paragraph 3) of the first part of Article 412 of the CPC, directs the case to the appropriate prosecutor to resolve the issue of conducting a pre-trial investigation in the case. In this case, the court has the right to choose a preventive measure against the accused.

     If during the consideration of a public accusation case, as a result of a change in qualification, it acquires the character of a private accusation, and there is no complaint from the victim, the proceedings on it are terminated on the basis of paragraph 5 of the first part of Article 35 of the CPC. In the same situation, but if there is a complaint from the victim or his request to bring the perpetrator to criminal responsibility, expressed at a court hearing, the case is further considered by the court according to the rules of chapter 47 of the CPC. In this case, the public prosecutor is excused from participating in the trial, and the prosecution is further supported by the victim or his representative.

    The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When considering cases of private prosecution, the courts must, as in other cases, strictly comply with the requirements of Article 24 of the CPC on a comprehensive, complete and objective investigation of all the circumstances of the case, identify both incriminating and justifying the defendant, as well as aggravating and mitigating his responsibility circumstances.

The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When considering cases of private prosecution, the courts must, as in other cases, strictly comply with the requirements of Article 24 of the CPC on a comprehensive, complete and objective investigation of all the circumstances of the case, identify both incriminating and justifying the defendant, as well as aggravating and mitigating circumstances.

    In each case, the direction of the intention of the accused, the defendant, should be established, the motives and goals of the criminal offense committed by him should be clarified, since the correctness of the legal assessment of his actions and the differentiation of private prosecution cases from other criminal offenses depend on this.

     When a private prosecutor submits an application for a change in the charge he has brought, it may be accepted by the court, provided that the new charge is subject to private prosecution, does not worsen the defendant's situation and does not violate his right to defense.

     The private prosecutor has the right to withdraw from the charge (part five of Article 411 of the CPC) without giving reasons for the refusal. At a court hearing, a waiver of charges may be made in writing or orally, with entry in the minutes of the main trial.

    If the court, having considered the case in the main trial, after holding debates and hearing the last word in the conference room, came to the conclusion that there was no corpus delicti in the act, it issues an acquittal, and not a decision to dismiss the case.

    The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

If there is evidence of the defendant's abuse of alcoholic beverages or narcotic drugs, it is necessary to check whether he suffers from chronic forms of the disease (alcoholism, drug addiction, substance abuse, and others), and if there are grounds for this, discuss the issue of applying compulsory medical measures to him.

When considering cases of private prosecution, the issues of filing and considering civil lawsuits are regulated by Chapter 20 of the CPC.

     Courts should take into account that in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005 No. 1 "On consideration of a civil claim in criminal proceedings", the burden of proof for a civil claim in cases of private prosecution, in accordance with Article 410 of the CPC, is assigned to civil plaintiffs (private prosecutors), who must to present to the court the relevant evidence necessary to protect their rights in connection with causing property damage or moral damage, and if it is impossible - inform the judge where they are and request to receive them. The function of the court is to assist the private prosecutor in collecting evidence in a civil claim, if he so requests.

    It is not allowed to refuse to accept a civil claim under the pretext of the expediency of its consideration in civil proceedings.

    The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Private prosecution courts should identify the causes and conditions of criminal offenses, and, if necessary, respond to identified deficiencies with private rulings, ensuring control over their execution.

    The footnote. Paragraph 21 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.

    Chairman of the Supreme Court

Republic of Kazakhstan

Judge of the Supreme Court

Republic of Kazakhstan,

Acting Director

Secretary of the plenary session

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