On the practice of applying legislation regulating the rights and obligations of persons who have suffered from criminal offenses
Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated April 24, 1992 No. 2.
The footnote. Title as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 3 (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 footnote. Throughout the text, the numbers "80" are replaced by the numbers "76" 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).
Having discussed the practice of applying legislation by courts regulating the rights and obligations of persons who have suffered from criminal offenses, the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:
The footnote. The preamble as amended by the regulatory decisions of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 3 (for the procedure of entry into force, see paragraph 2); dated 20.04.2018 No. 8 (effective from the date of the first official publication).
To draw the attention of the courts to the fact that in their activities to consider socially dangerous attacks on the identity of the victim, his political, labor, housing and other personal and property rights and interests guaranteed by the Constitution of the Republic of Kazakhstan, there are serious shortcomings that reduce the level of ensuring the legal protection of victims.
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).
Courts should keep in mind that ensuring that victims fulfill their duties to appear on call and give truthful testimony, strict and consistent observance of their rights contributes to establishing the truth in the case and making a lawful, reasonable and fair decision.
A victim is a person to whom moral, physical or property harm has been caused by a socially dangerous act directly, regardless of whether the person who committed this act has been identified or prosecuted. In cases of unfinished criminal activity (preparation for a criminal offense, attempted criminal offense), a person is recognized as a victim if moral, physical or property damage is actually caused.
A person cannot be recognized as a victim if moral, physical or property harm has occurred as a result of voluntary consent to harm (for example, in the case of applying for a criminal abortion, when giving a bribe, etc.).
A legal entity may be recognized as a victim if property damage has been caused by a criminal offense. In this case, the rights and obligations of the victim are exercised by a representative of a legal entity, whose powers are issued by a corresponding power of attorney.
The footnote. Paragraph 3 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 3 (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).
A person who has been harmed by a socially dangerous act acquires the appropriate procedural rights and duties imposed on him by law only after a decision has been made to recognize him as a victim, a civil plaintiff. Therefore, after the start of the pre-trial investigation, recognition of a person as a victim, clarification of his rights and obligations, including the right to receive qualified legal assistance, and in cases provided for in part two of Article 76 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), to receive it free of charge in order to fully and timely implement them. It must be followed immediately.
The decision on recognizing a person as a victim should indicate what harm has been caused to him. If several types of harm are caused, this circumstance should be reflected in the resolution.
The footnote. Paragraph 4 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 3 (for the procedure of entry into force, see paragraph 2); dated 06/25/2010 No. 5 (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). 4-1. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).
A victim who has filed a claim for compensation for material damage, including damage caused in connection with the loss of a breadwinner, injury or other damage to health, expenses incurred for burial, compensation for moral damage in monetary terms, etc., must also be recognized as a civil plaintiff.
In case of theft, damage or destruction of material assets that were legally owned by the owner (employer, custodian, etc.), both the owner and the owner of these assets have the right to file a civil claim. A victim recognized as a civil plaintiff has the right to participate in court arguments on the rights of a civil plaintiff, regardless of the participation of the prosecutor in the case.
5-1. Damage caused as a result of committing a criminal offense to a victim who is entitled to receive compensation from the fund is compensated in cases in accordance with the procedure and amount established by the Law of the Republic of Kazakhstan dated January 10, 2018 No. 131-VI "On the Compensation Fund for Victims".
A person's right to compensation arises immediately after being recognized as a victim and is realized by submitting an application to the state body performing the functions of criminal prosecution (effective July 1, 2020).
The footnote. The Resolution was supplemented by paragraph 5-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 5 (for the procedure of entry into force, see 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 07/01/2020).
In cases of criminal offenses, the result of which was the death of a person, the victim's rights provided for by law are held by his close relatives, spouse, adoptive parents, adopted children, one of whom, taking into account the agreement reached between them, is recognized as the victim, and not the victim's representative. If several of these persons insist on granting the rights of the victim, they may also be recognized as victims. In cases of premeditated murder committed in the presence of persons close to the deceased, these persons must be recognized as victims.
In the event of the death of the victim and in the absence of his close relatives, spouse, adoptive parents, adopted children, his rights may be represented in criminal proceedings by guardians, trustees, representatives of those institutions, organizations and persons in whose care or dependent he was. Close relatives, according to paragraph 11) of Article 7 of the CPC, are parents, children, adoptive parents, adopted children, full- and half-siblings, grandparents, and grandchildren.
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).
The victim may protect his rights and legitimate interests independently or through a representative authorized to participate in the criminal proceedings by the body conducting the criminal proceedings. In this case, the representative can be either a lawyer on the basis of a written notice of protection (representation), or any person legally authorized to represent the interests of the victim on the basis of a power of attorney, including close relatives.
If the victim is a minor or a person who does not speak the language of legal proceedings or who, due to his physical or mental condition, is unable to independently defend his rights and legitimate interests, the participation of a legal representative and representative is mandatory. In this case, only a lawyer chosen by the victim himself or his legal representative is allowed as a representative. The concept of a legal representative is given in paragraph 13) of Article 7 of the CPC.
In case of violation of this requirement, the verdict or the court decision are subject to cancellation in any case.
A teacher and a psychologist participate in the interrogation of a minor victim under the age of fourteen or between the ages of fourteen and eighteen, along with legal representatives.
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); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/11/2020 No. 6 (effective from the date of the first official publication).
The participation of the victim, his legal representative, or a representative from among close relatives in the case does not exclude the possibility of simultaneous participation of the victim's representative in the same case by agreement. At the same time, it should be borne in mind that from the moment a person is recognized as a victim, the right to admit a representative by agreement at any stage of the proceedings should be explained to him.
Representatives may not be persons whose participation is prohibited by law.
Representatives are allowed to participate in the case both alongside the victim and in his absence. In cases stipulated by the second part of Article 76 of the CPC, representatives are paid at the expense of budgetary funds.
Representatives of the victim or civil plaintiff have the right to be present and, with the permission of the prosecutor, investigator or inquirer, participate in investigative actions conducted with the participation of the victim or civil plaintiff.
The victim has the right to refuse a representative by agreement at any time during the proceedings.
The footnote. Paragraph 8 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 5 (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 statement of the victim, the civil plaintiff, and their representatives about their unwillingness to get acquainted with the case, submitted by them before the end of the pre-trial investigation, does not release the person conducting the pre-trial investigation from the obligation to notify these persons of the end of the pre-trial investigation and explain the right to get acquainted with the case, the application of petitions.
The footnote. Paragraph 9 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). 10. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 3 (for the procedure of entry into force, see paragraph 2).
In cases of private prosecution, the accused has the right to bring a counter-accusation, in which case both charges must be resolved by the court at the same time. In such cases, both applicants appear in the same trial not only as victims, but also as defendants, and the court is obliged to ensure that each of them respects all the procedural rights provided by law for both the victim and the defendant.
The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 3 (for the procedure of entry into force, see paragraph 2).
The court, recognizing the defendant guilty of slander or insult, expressed in the dissemination in the media of false shameful fabrications of the victim or information discrediting his honor and dignity, is obliged to decide in the verdict on the need to publish a refutation of defamatory information.
The victim, the civil plaintiff, and their representatives must be provided with an interpreter if they do not speak the language of the proceedings. Upon their request, the case materials that affect their interests must be translated into their native language or into a language they speak.
The victim, the civil plaintiff, and their representatives should be promptly informed of the right to protection from any unlawful influence on them.
If there is sufficient evidence that the victim, the civil plaintiff, their representative, as well as members of their families, or close relatives are threatened with murder, violence, destruction or damage to property, are prevented from appearing in court, are forced to recant, or are forced to give deliberately false testimony, or to other illegal actions, the authorities The investigator, the prosecutor, and the court are obliged to take measures provided for by law to protect the life, health, honor, dignity, and property of these persons., as well as to identify the perpetrators and bring them to justice.
Excluded 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 each case of a criminal offense that has caused property, physical or moral damage, the body conducting the criminal process is obliged to explain to the victim the right to file a civil claim in the criminal case, and upon presentation of such a claim, to recognize him as a civil plaintiff and explain his rights.
The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 5 (for the procedure of entry into force, see 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).
Compensation for material damage caused to the victim by a socially dangerous act is carried out in criminal proceedings in accordance with the procedure and amounts provided for by current legislation. In particular, the courts should keep in mind that, in accordance with the norms of civil law, the person responsible for property damage is obliged to compensate it to the civil plaintiff or the victim in kind (to present a thing of the same quality and kind, to repair the damaged thing, etc. to fully compensate for the losses incurred by the victim in connection with the theft or destruction of his property; the harm-doer is obliged to reimburse the costs incurred in connection with injury or other damage to the victim's health, in connection with the loss of the breadwinner - the costs of burial; damage caused by a source of increased danger is subject to compensation by the owner of such source, except for with the exception of cases specified in the law; damage caused by a citizen who has been declared incompetent is subject to compensation by his guardian or an organization responsible for supervising him, unless they prove that the damage was not their fault; for damage caused to minors between the ages of fourteen and eighteen, in the absence of his property or other sources of income sufficient for compensation for harm, the harm must be compensated in full or in the missing part by the legal representatives, unless they prove that the harm was not their fault.
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).
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 is determined by the court on the basis of an expert opinion, or the damage can be determined by experts.
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 reimbursed. A change in the amount of the penalty related to price changes after the commission of a criminal offense does not affect the qualification of the criminal offense and the scope of the charge.
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).
When a guilty verdict is passed, the costs incurred by the convicted person in connection with the payment of the victim's representative, who participated in the pre-trial investigation and in court by agreement, shall be recovered from the convicted person in favor of the victim.
Other expenses of the victim and his representative provided for by the criminal procedure legislation (payment for travel to and from the place of procedural actions, rent of living quarters, daily subsistence allowance, etc.) are paid in favor of these persons from the funds of the pre-trial investigation bodies, the court and are collected from the perpetrator to the state income.
The footnote. Paragraph 19 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 has the right to impose on the convicts, whose joint actions caused the damage, shared rather than joint liability, if such a recovery procedure is in the interests of the civil plaintiff and ensures compensation for the damage.
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 court is obliged to explain to the victim, the civil plaintiff, and their representatives the right to review the minutes of the main trial and submit their comments on it, and this should be reflected in the minutes of the main trial. The specified persons must be informed about the date of signing the protocol, executed in violation of the established deadlines.
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).
If, during the trial, the court finds that a socially dangerous act has caused harm to a citizen who has not been recognized as a victim, it must issue a ruling recognizing him as a victim, explain to him his rights, including to familiarize himself with the case, including the materials of the trial, and ensure the exercise of his rights.
When these circumstances are established in the conference room, the court is obliged to resume the judicial investigation.
The footnote. Paragraph 22 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 3 (for the procedure of entry into force, see paragraph 2).
The victim's right to appeal must be ensured regardless of whether or not he participated in the court of first instance. In all cases, the victim must be notified of the verdict with an explanation of the procedure for appealing it, of the complaints of other participants in the process and the prosecutor's petition, as well as of the time and place of consideration of the case in the court of appeal.
The footnote. Paragraph 23 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 3 (for the procedure of entry into force, see paragraph 2); dated 06/25/2010 No. 5 (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 court of appeal, having established that the victim has not been notified of the prosecutor's petition or the appeal filed by another participant in the process, as well as of the day of the appeal hearing, or he has not been given the opportunity to review the prosecutor's petition, complaint, or file objections to them, must return the case to the court to eliminate the violations who passed the verdict, except in cases where he can do it himself (for example, when the victim appears at the court of appeal and familiarizes him with the documents of interest).
The footnote. Paragraph 24 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 3 (for the procedure of entry into force, see paragraph 2); dated 06/25/2010 No. 5 (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 cancellation of a sentence due to the need to apply the law on a more serious criminal offense or for leniency of punishment, as well as the cancellation of an acquittal, may take place only in cases where the victim has filed an appeal or a petition in cassation on the grounds indicated. If the victim has appealed the verdict on other grounds (incorrect calculation of the amount of property damage caused to him, non-prosecution of other persons, etc.), the court has no right to worsen the situation of the convicted person or to cancel the acquittal.
The footnote. Paragraph 25 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 3 (for the procedure of entry into force, see paragraph 2); dated 06/25/2010 No. 5 (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 deprivation or restriction of the victim's rights may be recognized as a significant violation of the criminal procedure law, resulting in the cancellation of the sentence, if it prevented the court from comprehensively examining the case and influenced the decision of a lawful and reasonable sentence.
In this regard, the courts should ensure the participation of the victim and his representative both in the consideration of criminal cases in the main trial, and in the review of judicial acts on appeal, as well as in the consideration of the issue of parole of a convicted person. At the same time, the courts need to explain to them the right to get acquainted with the case materials, including complaints received, petitions brought by the prosecutor and other petitions, send their written objections, statements and petitions to the court, and if it is impossible to personally participate in the court session, send their representative, or notify the court in writing about the consideration of the case without their participation..
The footnote. Paragraph 26 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 5 (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).
In connection with the adoption of this resolution, Resolution No. 16 of the Plenum of the Supreme Court of the SSR dated November 1, 1985 "On the practice of courts applying legislation regulating the participation of victims in criminal proceedings" is declared invalid.
The footnote. Paragraph 27 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 5 (for the procedure of entry into force, see paragraph 2).
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.
The footnote. The regulatory resolution was supplemented by paragraph 28 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).
The Criminal Code, Comments to the Criminal Code, the Normative resolution of the Supreme Court, Criminal legislation, Normative legal acts of the Republic of Kazakhstan
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