On the consideration of a civil claim in criminal proceedings

Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005 No. 1.

      The footnote. Throughout the text, the words "crime", "crime", "prohibited by criminal law" are replaced, respectively, by the words "criminal offense", "criminal offense", "socially dangerous" in accordance with 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 order to ensure the correct and uniform application of the criminal procedure legislation governing the consideration of civil claims in criminal proceedings, the plenary session of the Supreme Court of the Republic of Kazakhstan

     Decides:

Consideration of a civil claim together with a criminal case in accordance with the procedure provided for by the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) is a guarantee of timely protection of the rights and legitimate interests of persons who have suffered moral, physical or property damage due to a criminal offense or a socially dangerous act of the insane. In this regard, the courts, when considering criminal cases, must ensure the correct resolution of civil claims in compliance with the requirements of substantive and procedural laws.

      In accordance with part two of article 2 and part two of Article 166 of the CPC, in criminal proceedings, issues related to a civil claim are resolved on the basis of the criminal procedure law. In cases where procedural relations are not regulated by the CPC, the norms of civil procedure legislation are applied to the extent that they do not contradict the CPC.

     The footnote. Paragraph 1 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 conducting proceedings in a criminal case, an inquirer, investigator, prosecutor or court shall explain to a citizen or a legal entity their right to file a civil claim if it is found in the case that they have suffered property or moral damage by a criminal offense or a socially dangerous act of an insane person.

Recognition of persons as civil plaintiffs must be preceded by their filing a civil claim.

      The range of persons who have the right to file civil claims in criminal proceedings is defined in articles 58, 73 and 167 of the CPC. These include: individuals and legal entities who have suffered harm as a result of a criminal offense or a socially dangerous act of an insane person, their legal representatives and representatives, and the prosecutor.

      In case of property damage, a civil claim may be filed by both the owner of the lost or damaged property and the owner of the property legally held by him (the employer, the custodian, etc.).

      In accordance with the fifth part of Article 71 of the CPC, the victim's claim for compensation for moral damage is considered in criminal proceedings. If such a claim has not been filed in a criminal case or has been left without consideration, the victim has the right to file it in civil proceedings.

     A civil claim may be filed at any time from the beginning of the pre-trial investigation, but before the end of the judicial investigation, both for completed and unfinished criminal offenses or socially dangerous acts of the insane, as well as when the suspect has not been identified.

     The footnote. Paragraph 3 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 10 (for the procedure of entry into force, see paragraph 2); dated 04/21/2011 No. 1 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Civil claims may be filed in writing or in the form of an electronic document in accordance with the requirements for claims considered in civil proceedings.

      The statement of claim must be submitted with copies attached according to the number of persons indicated in it as civil defendants.

      A request for consideration of a civil claim may also be set out in a complaint about the initiation of a private prosecution in accordance with article 408 of the CPC.

     If it is necessary to clarify the grounds for a civil claim or the size of the claims, an addendum to the civil claim may be filed.

      When filing a civil claim in a criminal case, the plaintiff is exempt from paying the state fee.

     The jurisdiction of a civil claim filed in a criminal case is determined by the jurisdiction of the criminal case.

     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).

The decision to recognize a person as a civil plaintiff, to refuse to recognize a civil plaintiff, or to terminate a person's participation in criminal proceedings as a civil plaintiff is made by the body conducting the criminal proceedings by issuing a reasoned decision. The decision must be issued immediately, respectively, after the receipt of the statement of claim or immediately after the establishment of circumstances indicating the absence of grounds for the person's stay in the specified procedural position.

      The person who filed the civil claim, as well as the participants in the process whose interests are affected in the civil claim, are notified of the decision.

      At the same time, persons recognized as civil plaintiffs should be informed of their procedural rights and obligations under article 73 of the CPC.

      The persons in whose interests the claim is filed are also notified by the prosecutor of the filing of a civil claim.

      A prosecutor who has filed a civil claim in defense of the interests of other persons is not subject to recognition as a civil plaintiff, since his independent procedural position is defined by article 58 of the CPC. In this case, the person in whose interests the claim is filed is recognized as the plaintiff.

     The footnote. Paragraph 5 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).

An inquirer, investigator, prosecutor or court may not, in the course of criminal proceedings, refuse to accept claims filed by persons specified in articles 58, 73 and 167 of the CPC in accordance with article 166 of the CPC.

     Based on the application submitted by the civil plaintiff for the return of the statement of claim, the body conducting the criminal proceedings issues a resolution on the return of the claim at any stage of the criminal process. If such a statement is received during the judicial debate, the judge resumes the judicial investigation for its consideration and adoption of a procedural decision.

     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).

A person who has submitted claims for compensation for damage caused by a criminal offense has the right to demand recognition as a civil plaintiff, if such a decision has not been taken earlier. Applications (petitions) for recognition as a civil plaintiff must be considered by the body conducting the criminal proceedings within three days of receipt, with immediate notification of the applicant's decision and sending him a copy of the reasoned decision issued on his application (petition).

      In cases provided for by law, the prosecutor has the right to recognize an individual or a legal entity as a civil plaintiff on his own initiative.

      The actions of the victims that contributed to the commission of a criminal offense against them are not in themselves an obstacle to their filing civil lawsuits or grounds for refusing to recognize such persons as civil plaintiffs.

      A refusal to recognize a person as a civil plaintiff may be appealed to a prosecutor or to a court within the time limits and in accordance with the procedure provided for in articles 105 and 106 of the CPC and part two of Article 109 of the CPC.

     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).

A civil claim is brought against a suspect, accused, defendant, or persons who are financially responsible for harm caused by them, or for harm caused by socially dangerous acts of the insane, who, in accordance with articles 74, 167, 198, 344 of the CPC, must be recognized as civil defendants by a decision of the body conducting the criminal process.

      The decision to involve in the case as a civil defendant is immediately announced to the person against whom it was issued, or his representative, with simultaneous clarification of their procedural rights provided for in Article 74 of the CPC, and delivery of a copy of the statement of claim.

     In cases where harm is caused by an employee in the performance of labor (official, official) duties, a legal entity or a citizen may be recognized as a civil defendant in accordance with Article 921 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), for whom the guilty person performed work on the basis of an employment or civil law contract.

     At the same time, taking into account the provisions of Article 917 of the Civil Code, it is necessary to proceed from the fact that if the harm is caused by unlawful actions (inaction) of the employee himself and his actions are not related to labor duties, then the claim is subject to compensation in a general manner, that is, by the person who caused the harm.

     The footnote. Paragraph 8, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).

If, when deciding on the appointment of the main trial, it is established that during the pre-trial proceedings in a criminal case, persons were unreasonably recognized as civil plaintiffs or civil defendants, the judge, on his own initiative or at the request of the parties, appoints a preliminary hearing of the case, during which the issue of ending the stay of such persons in the procedural position of a civil plaintiff or civil defendant is considered. based on the results of which a corresponding reasoned resolution is issued. At the same time, the court must send to the person who is recognized as a victim and can be recognized as a civil plaintiff an explanation of his right to file a civil claim.

In accordance with paragraph 6) of Article 320 of the CPC, the judge must find out whether, during the pre-trial investigation, measures were taken to ensure compensation for damage caused by a criminal offense or a socially dangerous act of an insane person.

      Failure to take measures to secure a civil claim is not an obstacle to the appointment of the main trial, does not entail the suspension of proceedings on the case and is not a reason for sending the case to the prosecutor.

      Having established that it is necessary to take measures to ensure a civil claim, the judge, in accordance with article 325 of the CPC, issues a resolution obliging the criminal prosecution authorities to take the necessary security measures, as well as measures to preserve the property seized in order to ensure a civil claim (seizure of property, its transfer for safekeeping, etc.).

      In the decision on the appointment of the main trial, the court, in addition to other issues specified in article 322 of the CPC, must also indicate the summoning of civil plaintiffs and civil defendants to the court session.

     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).

It should be borne in mind that, in accordance with article 166 of the CPC, civil claims for compensation for damage caused directly by a criminal offense or a socially dangerous act of an insane person are subject to consideration in the main court proceedings.

      Other civil claims arising from the circumstances established in the criminal case are subject to consideration in the same proceedings as the criminal case if they are filed in order to reimburse expenses incurred for the burial, treatment of the victim, the participation of himself and his representative in the pre-trial investigation and in court.

     Recourse claims can be considered simultaneously with a criminal case only when they are filed in order to compensate the amounts paid to the victim as insurance compensation, benefits or pensions in connection with harm caused to him by a criminal offense or a socially dangerous act of an insane person.

     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).

A civil plaintiff, as well as a prosecutor who has filed a claim in the interests of someone, has the right to file a waiver of the claim at any time during the criminal proceedings, but before the court is removed to the conference room.

      The waiver of a civil claim, as a rule, must be stated in a written statement by the civil plaintiff or in the form of an electronic document. At a court hearing, his oral statement of rejection of the civil claim is recorded in the minutes of the court session.

      The body conducting the criminal proceedings is obliged to explain to the plaintiff the consequences of rejecting a civil claim, and when deciding whether to accept a waiver of a civil claim, it must be guided by articles 169 of the CPC and 170 of the Code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the CPC) and not accept a refusal if it contradicts the law or entails a violation of someone's rights or legitimate interests.

      On the issue of acceptance or non-acceptance of a waiver of a claim, the court, in accordance with article 169 of the CPC, issues a reasoned decision. In order to make the above-mentioned decision, the court, in accordance with the second part of Article 344 of the CPC, must retire to the conference room.

     Acceptance of a waiver of a claim entails the termination of criminal proceedings in this part and the participation of a person as a civil plaintiff, and also excludes a second appeal to the court in a dispute between the same parties, on the same subject and on the same grounds, including in civil proceedings.

     The prosecutor's refusal to file a civil claim does not deprive the civil plaintiff, in whose interests the claim was filed, or his representatives of the right to independently support the claim in court.

     The footnote. Paragraph 12 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).

Proving a civil claim in accordance with article 113 of the CPC is one of the circumstances to be proved in the course of each criminal case. When proving, it is necessary to determine: the grounds of a civil claim; the type of harm caused by a criminal offense, the nature, size and degree of harm; to whom the harm was caused and who will act as a civil plaintiff; who should be responsible for the harm and will act as a civil defendant in the case; the behavior of the person who was harmed at the time committing a criminal offense; the property status of the suspect, the accused (the civil defendant).

      The prosecutor is responsible for proving the nature and amount of harm at a court hearing in accordance with article 121 of the CPC.

      In accordance with article 410 of the CPC, the burden of proof in a civil claim for private prosecution lies with civil plaintiffs (private prosecutors), who must provide the court with the relevant evidence necessary to protect their rights in connection with property damage or moral damage, and if it is impossible, inform the judge where they are and petition for receiving them. The functions of the court are to assist the private prosecutor in collecting evidence in a civil claim, if he so requests.

     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 criminal proceedings, the civil plaintiff, the civil defendant, and their representatives have the right to present relevant evidence or petition the body conducting the criminal proceedings for their recovery, and to exercise all their other rights provided for in articles 73 and 74 of the CPC, respectively.

      At the same time, the civil defendant, whose responsibilities are defined in part three of Article 74 of the CPC, may not be required to provide them with evidence refuting the subject matter, grounds or amount of the claim.

     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).

The damage caused by theft, damage or destruction of property is compensated to the victim, taking into account the prices prevailing on the day of the decision on its compensation.

      If necessary, the amount of damage caused by theft, damage or destruction of property, the court determines on the basis of an expert opinion, or the damage can be determined by specialists or a commission appointed by the court for this purpose.

     The court, taking into account the prices prevailing at the time of the proceedings, has the right to increase the amount of damage to be compensated, provided that such a decision does not entail finding the defendant guilty of a more serious criminal offense or otherwise worsen his situation and violate the right to defense.

     The footnote. Paragraph 15 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 determining the nature of physical harm, it is necessary to proceed from the criteria for determining the severity of the harm caused to health, and for each case to assess whether the harm caused is minor, caused or did not cause a short-term health disorder, or moderate harm was caused, or serious harm to health, or death was caused. To determine the extent and extent of the damage caused to health, it is necessary to conduct an appropriate forensic examination.

     Claims for damages or other harm not specified in the first part of Article 166 of the CPC are not subject to consideration in criminal proceedings (for example, claims for damages or lost profits, claims by third parties who are not victims, etc.). When such claims are received in a criminal case, the court is obliged to explain to the applicant that he has the right to apply to the court in the order of civil proceedings.

     The footnote. Paragraph 16 as amended by 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).

When considering claims for compensation for moral damage, one should be guided by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the application by courts of legislation on compensation for moral damage".

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).

It should be borne in mind that the victim's behavior before or at the time of committing a criminal offense against him has an impact on both criminal liability and civil liability of the harm-doer, and in certain cases it may be recognized as unlawful (intent or gross negligence).

      In case of gross negligence of the victim (intoxication, violation of traffic rules, etc.), the amount of compensation for damage may be reduced or its compensation may be refused.

     The footnote. Paragraph 18, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).

To determine the property status of a civil defendant, it is necessary to find out the amount of his salary, the number of family members, family income and the presence of dependents, the presence of movable and immovable property in his personal and joint ownership.

During the main trial of a criminal case, the presiding judge is obliged to ensure that the civil plaintiff, the civil defendant and their representatives can exercise their procedural rights, including the right to participate in the investigation of the criminal case of all circumstances related to the civil claim and in court debates.

      A statement of claim must be read out by the civil plaintiff at the court hearing. The court must find out whether the civil plaintiff and his representatives support the civil claim, to what extent, and if the claim is filed by the prosecutor, then find out whether the public prosecutor supports the civil claim. It is also necessary to find out from the civil defendant and his representatives whether they recognize the civil claim, to what extent.

      The civil plaintiff, the civil defendant and their representatives at the court hearing should be given the opportunity to give explanations on the civil claim, to submit materials for inclusion in the criminal case concerning the civil claim.

     At the request of the court, the civil plaintiff, the civil defendant and their representatives are required to submit their items, documents, and other evidence if the court finds it necessary to examine them for the correct resolution of the claim.

     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).

The civil plaintiff has the right to change the volume of claims in the direction of reduction (for example, in case of partial voluntary compensation for damage by the accused or the civil defendant) or in the direction of increase. At the same time, if it is established at a court hearing that the amount of the claim indicated by the civil plaintiff is greater than that established during the pre-trial investigation, and this affects the qualification of a criminal offense, then this circumstance, in accordance with the fifth part of Article 340 of the CPC, may serve as a basis for postponing consideration of the case and providing the prosecutor with the time necessary to draw up a new indictment. the act.

     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).

Courts need to keep in mind that the mere recognition of a civil claim by the defendant (the civil defendant, his representatives) is not enough to satisfy a civil claim. Before making a decision on a civil claim, it is necessary to establish the guilt of the defendant in committing a criminal offense or the fact that the insane person committed a socially dangerous act, as well as the causal relationship between their actions and the resulting harmCourts need to keep in mind that the mere recognition of a civil claim by the defendant (the civil defendant, his representatives) is not enough to satisfy a civil claim. Before making a decision on a civil claim, it is necessary to establish the guilt of the defendant in committing a criminal offense or the fact that the insane person committed a socially dangerous act, as well as the causal relationship between their actions and the resulting harm. To this end, it should be carefully clarified which action or omission of his end, i should be carefully clarified which action or omission of the defendant or the insane caused the damage, what evidence confirms this, what the amount of damage is, what it consists of, who, in accordance with the law, should bear financial responsibility and in favor of whom the recovery should be made.

     The footnote. Paragraph 22 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 defendant (the civil defendant, his representatives) hasant (the civil defendant, his representatives) has the right to recognize the claims, which does not exempt the court from a thorough and fair trial of the case and making a lawful decision on the civil claim.

     When conducting a trial of a case in an abbreviated manner, the investigation of a civil claim is not carried out. Failure by the defendant (the civil defendant and his representatives) to recognize a civil claim entails conducting a judicial investigation into the criminal case in full, including an investigation of the circumstances related to the civil claim.

     The footnote. Paragraph 23 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, during the consideration of a criminal case, the victim (he is also a civil plaintiff) petitions for termination of the criminal case due to reconciliation with the defendant and declares that the damage caused to him by the criminal offense has been fully compensated, the court must explain to him the consequences of terminatiring the consideration of a criminal case, the victim (he is also a civil plaintiff) petitions for termination of the criminal case due to reconciliation with the defendant and declares that the damage caused to him by the criminal offense has been fully compensated, the court must explain to him the consequences of termination of the case on this basis, including in terms of a civil claim, and also make sure that the voluntary nature of the victim's statement, to find out the circumstances of compensation for harm and its amount.

Based on the results of consideration of aBased on the results of consideration of a civil claim, the court may make one of the following decisions: on full or partial satisfaction of the civil claim; on refusal to satisfy the civil claim; on recognition of the civil plaintiff's right to satisfy the civil claim and transfer the issue of its size to the court for consideration in civil proceedings; on acceptance of the waiver of the civil claim and termination on the approval of a settlement agreement or an agreement on the settlement of a dispute through mediation on a civil claim and the termination of proceedings on it; on leaving a civil claim without consideration.

     In the descriptive and motivational part of the verdict (resolution) The court must reflect the attitude of the parties to the civil claim, provide the relevant motives and grounds for the decision on the civil claim, with reference to the norms of substantive and procedural laws applied by the court in resolving the issue of the civil claim. The court's decision on a civil claim is set out in the operative part of the verdict (resolution).

     The footnote. Paragraph 25 as amended by the regulatory resolution of the Supreme C footnote. Paragraph 25 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 civil claim is subject to satisfaction in whole or in part if a criminal case is convicted by a court or a decision is made to apply a compulsory medical measure to an insane person. The decision on the full or partial satisfaction of the claim is made by the court, based on the evidence of the nature and extent of the damage caused by the circumstances in which it was caused.

      A civil claim is also subject to full satisfaction when a decision is made to terminate the proceedings on the grounds specified in paragraphs 3), 4) of the first part of Article 35 of the CPC. If the suspect, the accused, the defendant or their legal representatives dispute the amount of damage caused, the proceedings in the case continue according to the rules provided for in part four of Article 35 of the CPC, with the resolution of a civil claim on the merits of the dispute.

      The grounds, conditions, scope and method of compensation for damage caused by a criminal offense, when considering a civil claim together with a criminal case, are determined in accordance with the norms of civil, labor and other legislation. The general grounds for liability for harm are defined by Chapter 47 of the Special Part of the Civil Code.

    The footnote. Paragraph 26 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).

In the operative part of the verdict, the court sets out the decision to satisfy the civil claim in whole or in part, indicating the amount to be recovered, or to recognize the civil plaintiff's right to satisfy the claim and transfer the issue of its amount to the court in civil proceedings, or to refuse to satisfy the civil claim, or to leave the civil claim without consideration., on the amount of the state fee to be collected from the defendant(s) to the state revenue.

      When satisfying a civil claim brought against several defendants, the court in the operative part indicates which specific amounts and from whom are to be recovered, in a joint or shared manner. If property damage is caused as a result of committing a particularly serious crime and the convicted person does not have sufficient property to compensate for it, the court that passed the sentence, at the request of the victim or his legal successor, in accordance with part seven of Article 71 of the CPC, must decide to pay monetary compensation from the republican budget in full, but not more than 150 monthly calculation indices. The said court decision is subject to compulsory execution in accordance with the procedure established by the legislation on enforcement proceedings.

      If the damage was the result of joint criminal actions of several persons, then convicted persons, both adults and minors, if they have property or other sources of income, are jointly and severally liable in accordance with Article 932 of the Civil Code. At the request of the victim and in his interests, the court may impose shared responsibility on the persons who jointly caused the harm.

      In satisfying the claim, the court must, in the operative part of the verdict (resolution), set a time limit for the voluntary execution by the civil defendant of the decision on the civil claim and indicate in the verdict (resolution) that after the expiration of the specified period, the judicial act regarding the civil claim is subject to compulsory execution.

      The compulsory execution of a sentence in respect of a civil claim is carried out in accordance with the procedure established by the legislation on enforcement proceedings.

      Having established that the property in the possession of other persons belongs to the defendant, as well as that the property that is his joint property with other persons was acquired with funds obtained by criminal means, the court, having provided appropriate evidence, must indicate this in the verdict so that the recovery of damages can be applied and on such property.

     The footnote. Paragraph 27, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 10 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When filing a civil claim in a criminal case, only the plaintiff is exempt from paying the state fee, therefore, in cases of satisfaction of the claim in whole or in part, the court decides in the verdict on the recovery of the state fee from the defendant(s) to the state revenue in full or in proportion to the satisfied part of the claim.

The decision to recognize the right of a civil plaintiff to satisfy his civil claim and to transfer the issue of its amount to consideration in civil proceedings is indicated by the court in the verdict (resolution) and such a decision can be taken only in cases where all the grounds provided by law for satisfying the claim during the main trial of a criminal case have been established and they evidence of the validity of the claim, however, its size cannot be accurately determined without postponing the criminal case proceedings (for example, due to the lack of necessary documents confirming the amount of property damage, etc.).

The transfer to civil proceedings of the issue of the amount of a civil claim, the right to which the civil plaintiff has been recognized by the court, means that upon the entry into force of the verdict, the court sends duly certified copies of the verdict and materials related to the civil claim to the appropriate court of jurisdiction for a detailed calculation of the amount of compensation to be recovered for the damage caused. a criminal offense is a damage in favor of a civil plaintiff. At the same time, the court considering the criminal case, recognizing the civil plaintiff's right to satisfy his civil claim, has no right to prejudge and indicate in the verdict conclusions on issues that are subject to consideration in civil proceedings.

      When considering in civil proceedings the issue of calculating the amount of compensation to be recovered for damage caused by a criminal offense, the court has no right to refuse to accept the claim or return the claim, since in accordance with part three of Article 127 of the Code of Criminal Procedure, the court verdict that has entered into force, which recognizes the right to satisfaction of the claim, is mandatory in this part for the court when considering a civil case.

      When deciding on the jurisdiction of cases for reimbursement of funds spent on inpatient treatment of victims considered in civil proceedings, it should be borne in mind that, by virtue of part five of Article 30 of the CPC, they can be considered in courts at the plaintiff's place of residence or at the place of injury to the victim.

     The footnote. Paragraph 30 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 10 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication).

The decision to dismiss a civil claim is taken when an acquittal is rendered on the grounds of failure to establish the event of a criminal offense or the failure to prove the defendant's participation in the commission of a criminal offense or the failure to prove the commission of a socially dangerous act by an insane person.

     The claim must also be refused if it is established at a court hearing that there is no harm caused by a criminal offense or an act of the insane, or when there is no causal relationship between the act committed by the defendant or the insane and the harm that has occurred.

     The footnote. Paragraph 31 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).

Courts should keep in mind that when resolving a criminal case on its merits, it is unacceptable to unreasonably leave a civil claim without consideration.

     A civil claim may be dismissed without consideration upon termination of a criminal case on the grounds specified in paragraphs 5), 7), 8) of the first part of Article 35 of the CPC.

      If the court decides an acquittal due to the absence of elements of a criminal offense in the actions of the defendant or a decision to terminate the case and the absence of grounds for applying compulsory medical measures to the insane, the civil claim is also subject to dismissal.

      A civil claim may also be dismissed due to the failure of the civil plaintiff or his representative to appear at the court hearing. However, regardless of the appearance of the civil plaintiff or his representative, the court has the right to consider a civil claim if it deems it necessary on its own initiative, or when the civil claim is supported by the prosecutor participating in the main trial, or if there is a petition from the civil plaintiff or his representative to consider the civil claim without their participation.

     Leaving a civil claim without consideration in criminal proceedings does not deprive the civil plaintiff of the right to bring a claim in civil proceedings.

     The footnote. Paragraph 32 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).

Upon termination of a criminal case in which a civil claim has been filed and measures have been taken to ensure it, the court is obliged to explain to the civil plaintiff that these measures are being canceled. In such cases, the plaintiff has the right to file a claim and request for measures to secure the claim in civil proceedings.

The court is obliged to explain to the victim, the civil plaintiff, and their representatives the right to review the minutes of the main trial, audio and video recordings of the main trial and submit their comments on them, which should be reflected in the minutes of the court session. Comments on the minutes of the court session are submitted in writing or in the form of an electronic document certified by an electronic digital signature. The specified persons must be notified of the date of signing the protocol, executed in violation of the established deadlines.

The footnote. Paragraph 34 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).

Appeals against the verdict of the court regarding the decision on a civil claim may be filed by the civil plaintiff, the civil defendant and their representatives. Each of the civil plaintiffs has the right to appeal the verdict only in the part that concerns his claims. An appeal in accordance with the second part of Article 414 of the CPC may be filed by the relevant prosecutor.

     Before the start of the court session in the appellate instance, complaints or petitions may be withdrawn by the persons who submitted them. The petition may also be withdrawn by a higher prosecutor.

      The participants in the process should be notified of the complaints received, the petition, they should be informed of the right to file their objections to them, they should also be notified of the time and place of consideration of the case on appeals, the petition.

     The footnote. Paragraph 35, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 10 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Civil plaintiffs and civil defendants, as well as their representatives, have the right to participate in the meeting of the appellate instance and provide explanations on the circumstances of the civil claim. Provided that they have been duly notified of the time and place of the appeal hearing, their failure to appear at the court hearing does not preclude the consideration of the case.

     The need to summon a civil defendant (convicted person) in custody to a court hearing is decided by the court of appeal. If the complaint or petition raises the issue of increasing the amount of penalties or otherwise worsening the situation of the convicted person in a civil claim, his application for participation in the appellate instance is subject to mandatory satisfaction.

     The footnote. Paragraph 36 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 court of appeal, verifying the legality of the verdict in terms of a civil claim, taking into account the requirements of Article 432 of the CPC, has the right to change the verdict in terms of a civil claim. In cases where the decision on a civil claim is not specified in the operative part of the verdict, when the court has not examined the statement of claim, has not interviewed the plaintiff and the defendant on the civil claim, has not given any judgments on the civil claim in the verdict and has not formulated a decision on the civil claim in the operative part at all, the court of appeal conducts a judicial investigation. fulfilling the requirements of the law for the participation of a civil plaintiff and a civil defendant in court proceedings and for the consideration of a civil claim on its merits. Following the results of the judicial review, the court of appeal, in accordance with the requirements of Article 432 of the CPC, modifies the verdict regarding the civil claim by making a reasoned decision on the claim.

      The cancellation of a sentence on the grounds specified in article 433 of the CPC also entails its cancellation in terms of a civil claim, regardless of whether the verdict has been appealed, as well as a petition filed by the prosecutor in this part.

      When the verdict is overturned and the case is terminated due to the absence of elements of a criminal offense in the defendant's act, or due to the absence of grounds for applying compulsory medical measures to an insane person who, by the nature of the act he committed and his condition, does not pose a danger to society and does not need compulsory treatment, or on the grounds specified in paragraphs 5), 7) and 8) of the first part of Article 35 of the CPC, the appellate instance leaves the civil claim without consideration.

     If the court of appeal decides an acquittal, as well as the case is terminated due to the failure to identify the event of a criminal offense or prohibited by the Criminal Code of the Republic of Kazakhstan (hereinafter – Criminal Code) the act of an insane person, or the failure to prove the defendant's involvement or the commission of a socially dangerous act by an insane person, or the failure to establish the guilt of the defendant or the person against whom the issue of applying compulsory medical measures was resolved in the commission of a criminal offense or an act prohibited by the Criminal Code, then this instance decides to dismiss the civil claim.

      In the cases provided for in Part three and paragraph 3) of part six of Article 170 of the CPC, consideration of a civil claim is carried out on the basis of the selected materials of the criminal case in accordance with the procedure of civil proceedings and the rules of jurisdiction provided for by the CPC.

     In the case of a new criminal case after the cancellation of the verdict in full, the civil claim is considered again on the general grounds provided for by the CPC.

     The footnote. Paragraph 37 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 change by the appellate instance of the verdict regarding a civil claim in the direction of increasing the amount of the penalty (except for correcting a counting error), the cancellation of the decision to dismiss the claim and the adoption of a new decision to satisfy it, or the adoption of another decision on a civil claim that worsens the situation of the civil defendant (convicted), are possible only if there are relevant arguments indicated in the complaint the civil plaintiff, his representative, or the prosecutor's motion.

     The footnote. Paragraph 38 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 the requirements of part fourteen of Article 494 of the CPC, when considering a case in cassation, the court has the right to go beyond the petition or protest and verify the legality of the appealed, protested verdict in terms of a civil claim in full, if this does not worsen the situation of the convicted person.

      In accordance with article 665 of the CPC, a verdict passed with the participation of jurors regarding a civil claim may be reviewed in cassation only if there are grounds provided for in paragraph 1) parts one and two of Article 485 of the CPC.

     The footnote. Paragraph 39 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 10 (for the procedure of entry into force, see paragraph 2); dated 04/04/2013 No. 2 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Courts should respond to each case of violation of the requirements of the law aimed at ensuring respect for the rights of a civil plaintiff, a civil defendant, as well as compensation for property damage caused by a criminal offense by issuing a private ruling.

In connection with the adoption of this regulatory resolution, to invalidate Resolution No. 1 of the Plenum of the Supreme Court of the Kazakh SSR dated March 19, 1990 "On the implementation by the courts of the Republic of Resolution No. 1 of the Plenum of the Supreme Court of the USSR dated March 23, 1979 "On the practice of applying legislation by courts on compensation for material damage caused by a criminal offense " with amendments made Resolution of the Plenum of April 26, 1984 No. 7.

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,

Secretary of the plenary session

 

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