Private prosecution promotes the legal activity of citizens

The Institute of private prosecution promotes the legal activity of citizens to protect their rights, implement the principles of "zero tolerance", and develop the competitiveness of the parties. It is the court's responsibility to restore the violated rights and legitimate interests of all participants in the case. An analysis of the practice of considering cases of private prosecution in the courts of the first instance of the republic revealed some facts indicating violations. In this regard, the courts should exclude: the facts of unjustified refusals to accept complaints from private prosecution; the facts of refusals to accept complaints on formal or far-fetched grounds.; abstract wording in the court's decision indicating the shortcomings that should be eliminated by the author of the complaint when sending the complaint in order to bring it into line with the requirements of part 2 of Article 408 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC);

Private prosecution promotes the legal activity of citizens

when submitting requirements to the complaint, do not go beyond the limits established by part 2 of Article 408 of the CPC to the complaint (for example, require a copy of the complaint, which is not contained in part 2 of Article 408 of the CC); providing a short time to bring the complaint in line with the requirements of part 2 of Article 408 of the CPC, deliberately excluding the possibility for the author of the complaint to comply with the requirements set out in the court's decision; delaying the consideration of complaints from private prosecution; redirecting them to pre-trial proceedings or to other courts in the absence of grounds provided for by law.; the facts of accepting complaints in which there is no description of the criminal act indicating the time, place, method, consequences, qualifications, information about the person being prosecuted (surname, first name, patronymic, other data that the victim has the right to provide independently), a list of witnesses (if any and the victim has the opportunity to establish their data), since the complaint, being an indictment, determines the scope of the charge. Judges should pay attention to the need to assist the parties in collecting evidence on their petitions (necessary data on the list of witnesses, request for documents on identification of personal data, residential address, etc.), summoning witnesses, in accordance with the requirements of part 4 of Article 410 of the CPC. Regional and equivalent courts should study judicial practice in private prosecution cases on an ongoing basis. In order to eliminate the different interpretation of the application of the law, the following additions should be made to the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 13 "On Judicial practice in cases of private prosecution": the period specified in Part 2 of Article 409 of the Criminal Procedure Code of the Republic of Kazakhstan (dale – CPC) must be calculated from the date of receipt of a private complaint, corresponding to the requirements of part 2 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 part 2 of Article 409 of the CPC should be calculated from the date of bringing the complaint into compliance.; when a person who has filed a private prosecution complaint exercises his right to dismiss the charge and withdraw the complaint, to reconcile with the person against whom the application was filed, at the stage before the court accepts the private complaint, the judge by his decision refuses to accept the complaint for proceedings, since the complaint was not supported by the person who filed it even before the start of the proceedings.

If these actions are performed after the private complaint is accepted by the court for trial, but before the case is assigned to the court session according to the rules of Article 322 of the CPC, the judge terminates the proceedings initiated by the relevant decision on the basis of paragraph 5 of part 1 of Article 35 of the CPC, at the stage of the proceedings of the complaint of the private prosecution in the main trial, the court terminates the proceedings based on paragraph 2 of part 1 of Article 412 of the CPC. According to the requirements of part 5 of Article 32 of the CPC, upon receipt by the pre-trial body of statements and reports on a criminal offense of a private charge, they are subject to registration in the Unified Register of Pre-Trial Investigations, for which urgent investigative actions must be carried out and if the victim's private complaint is not received no later than three days from the date of receipt, they are subject to termination. In accordance with part 5 of Article 179 of the CPC, if there is information in the received application and communication on which criminal prosecution is carried out in private, the materials are sent to the relevant court of jurisdiction, and the applicant is notified. In this regard, attention should be paid to the need for the criminal prosecution body to resolve the procedural issue of reports of offenses, which also contain signs that characterize not only offenses of private prosecution. For example, home invasion, minor injury to health, and beatings may be accompanied by other types of offenses classified as private-public or public charges (hooliganism, etc.). In such circumstances, the criminal prosecution authority is required to make a decision on these types of offenses of private-public and public charges before sending the case to court. jurisdiction as an offense related to private prosecution cases. In the decision to terminate a criminal case, the pre-trial body does not have the right to limit itself to generalized phrases such as "terminate for lack of corpus delicti", but must specify the specific corpus delicti, since, according to paragraph 8 of part 1 of Article 35 of the CPC, the presence of an undone decision of the criminal prosecution body is the basis excluding proceedings in the case, including in private cases. accusations.  According to the requirements of article 409 of the CPC, if it is obvious from the content of the complaint that a criminal offense of a private or public nature has been committed, the judge has the right to send the complaint under investigation without accepting it for his proceedings. If such types of criminal offenses were identified during the main trial and were not obvious when filing a private complaint from its content, then according to part 1 of Article 412 of the CPC, the court issues a decision to dismiss the case. 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases