Termination of proceedings on complaints of private prosecution before the complaint is accepted by the court, the actions of the criminal prosecution authority on received allegations of criminal offenses of private prosecution

In addition, as shown by the study of materials on private prosecution complaints received by the courts, when withdrawing a private complaint or reconciling the parties, some courts terminate the case on the basis of paragraph 5 of part 1 of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), some courts refuse to accept a private complaint, referring to paragraph 3 of Part 2 Article 409 of the CPC. Whereas the procedural decision of the court in the form of a refusal to accept a private complaint or to terminate proceedings depends on the stage of consideration of the complaint of the private prosecution: whether the private complaint has been accepted into court proceedings, that is, whether a private prosecution case has been initiated. As you know, a judge, having considered a private complaint in cases of this category, finds out whether the private complaint meets the requirements of the law, whether there are other grounds preventing the acceptance of a private complaint. In all cases, if the filed complaint does not meet the requirements of part 2 of Article 408 of the CPC, the judge, in accordance with part 1 of Article 409 of the CPC, issues a resolution in which he invites the person who filed the complaint to bring it in line with the specified requirements and sets a time limit for this. A private complaint serves as the basis for initiating proceedings in this category of cases, therefore, if a private complaint is withdrawn before the court accepts the private complaint, that is, before the case is initiated, the court, in accordance with paragraph 3 of part 2 of Article 409 of the CPC, issues a decision to refuse to accept the complaint for its proceedings, since the complaint was withdrawn before the start of proceedings. In such cases, the judge should explain to the complainants of the private prosecution about the consequences of withdrawing the private complaint provided for in part 9 of Article 408 of the CPC, and that the private prosecution cannot be reopened if it was previously withdrawn. The acceptance of a complaint that meets the requirements of the law or is brought into compliance at the request of the court in accordance with the rules of part 1 of Article 409 of the CPC into its proceedings means the initiation of proceedings.

Termination of proceedings on complaints of private prosecution before the complaint is accepted by the court, the actions of the criminal prosecution authority on received allegations of criminal offenses of private prosecution

The judge explains to the applicant his right to waive the charge, to reconcile with the person against whom the application has been filed, including through mediation. Thus, the acceptance of a private complaint by Sh., submitted to the Abaysky District Court of the Karaganda region, about bringing N. to criminal responsibility under part 1 of Article 149 of the Criminal Code was refused. It is established that the statement of Sh. The case against N. was filed with the Abaysky District Court on February 15, 2016 from the Department of Internal Affairs of the Abaysky district, to which the second statement of Sh was attached. with a request not to take any action against N. on the fact of the invasion of her house, since she has no claims against him. On the basis of this application, the decision of the Abaysky District Court of February 17, 2016 refused to accept the complaint for trial. Meanwhile, 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 after 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 contains signs that characterize not only offenses of private prosecution. For example, home invasion, minor injury, 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 obliged to make a decision on these offences of private-public and public prosecution before sending the case to the court of jurisdiction as an offence 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 it is necessary to indicate 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. The applicant is informed of the decision taken, as well as of the possibility and procedure for appealing it in all cases. Whereas according to a private complaint from S. The pre-trial body did not comply with the above requirements of the law. The judge also failed to make sure that Sh. Indeed, he does not support his private complaint, treated its consideration superficially and, accepting the second statement as a withdrawal of the private complaint, hastily issued a procedural decision to refuse to accept the private complaint. Meanwhile, the court was obliged to clarify Sh. the consequences of withdrawing a private charge, since a private charge cannot be reopened if it was previously withdrawn and a second appeal to the court on a dispute between the same parties, on the same subject and on the same grounds is not allowed. In this regard, the court is obliged to determine whether the withdrawal of a private prosecution does not contradict the interests of the person who filed the complaint. However, the court did not explain to Sh. the consequences of withdrawing the private prosecution. In addition, a study of the procedural documents of judges on the issue of accepting complaints into court proceedings showed the need for clarification for the uniform application of the requirements of part 1 of Article 409 of the CPC. It follows from this provision of the law that the judge, by his decision, suggests that the complainant of a private prosecution, which does not meet the requirements specified in part 2 of Article 408 of the CPC, bring it into line and sets a time limit for this. In these cases, some courts order the return of a private complaint with a time limit for bringing it into compliance, although the legislator provides for the actions of a judge to rule only on bringing the complaint of a private prosecution in line with the requirements of the law.

The complaint is not returned to the author, he is given time to correct specific shortcomings, which the judge must set out in the decision. For example, by a decision dated November 19, 2016, on A.'s complaint about criminalizing K., the judge indicated that A.'s complaint should be returned in order to bring it into line with the deadline. After the court receives a private complaint filed with the bodies of inquiry or investigation, forwarded to the court, the judge has no right to refuse to accept such a complaint as not addressed to the court, but must summon a private prosecutor and find out whether he supports his complaint. However, there are facts of refusal to accept complaints from private prosecution on the grounds of the need for direct appeal to the court. Thus, from the materials submitted to court No. 2 of the Osakarovsky district of the Karaganda region, it can be seen that R. On July 9, 2016, he applied to the police department for criminal prosecution. The body of inquiry carried out urgent actions on this application – explanations were collected, the applicant himself was sent for a forensic medical examination, which concluded on July 26, 2016 that R. had suffered minor harm to his health. In this regard, R.'s application for bringing D. to criminal responsibility for intentionally causing harm to health by the district Department of Internal Affairs of the Osakarovsky district of the Karaganda region was sent to court No. 2 of the Osakarovsky district of the Karaganda region on August 18, 2016.  The judge in his ruling, referring to the fact that the application should be submitted to court No. 2 of the Osakarovsky district of the Karaganda region, and not to the head of the internal affairs bodies of the district, refused to accept R.'s complaint without giving a deadline for bringing it into compliance with the requirements of part 2 of Article 408 of the CPC. The facts of the formal issuance of rulings on the provision of a time limit for bringing the complaint into compliance with the requirements of part 2 of Article 408 of the CPC without sending them to the author of the complaint have also been established. For example, the decision of the judge of the court No. 2 of the city of Pavlodar dated January 20, 2016 on bringing the complaint of Zh. No criminal charges under article 108 of the Criminal Code were sent to the applicant in accordance with the requirements of the law, and then a decision was issued on 29 January 2016 to refuse to accept the complaint, which was also not sent by the court to the author of the complaint. 

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