The court of appeal, by overturning the verdict in full and terminating the criminal case against the convicted person under part 1 of Article 68 of the Criminal Code, showed one-sidedness in investigating and assessing the circumstances of the case and did not reflect in the decision the fate of the civil claim resolved by the court of first instance.

By the verdict of the district court No. 2 of the Saryarkinsky district of Astana dated March 30, 2016, B. was sentenced under part 1 of Article 345 of the Criminal Code to 1 year in prison with deprivation of the right to drive a vehicle for a period of 3 years and serving his sentence in a penal colony. From the convicted B. In favor of A., material damage in the amount of 165,115 tenge, moral damage in the amount of 500,000 tenge, in favor of the civil plaintiff K., material damage in the amount of 415,457 tenge, as well as a state fee in the amount of 6,866.77 tenge and procedural costs in the amount of 16,292 tenge were recovered. By the verdict of court B. He was found guilty of violating traffic rules, which negligently caused serious harm to the health of victim A. The verdict was overturned by the decision of the Appellate Judicial Board for Criminal Cases of the Astana City Court dated May 20, 2016. The criminal case against B. under part 2 of Article 345 of the Criminal Code was terminated in connection with the reconciliation of the convicted B. with the victim A. and the reparation of the harm caused to her. On the basis of part 1 of Article 68 of the Criminal Code, B. was released from criminal liability. By the decision of the Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan dated November 8, 2016, the petition of the representative of the civil plaintiff K. – S. was left without consideration on the basis of paragraph 1 of part 2 of Article 484 of the CPC.

The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan, introduced in accordance with paragraph 2 of Part 3 of Article 484 of the CPC, raises the issue of reviewing judicial acts in the case due to a violation of uniformity in the interpretation and application of legal norms by the courts, which violates the rights and legitimate interests of the civil plaintiff K. regarding her civil claim considered in the criminal case. In particular, it is indicated that the appellate instance made its decision to overturn the verdict and terminate the criminal case against B. on the basis of part 1 of Article 68 of the Criminal Code, with his release from criminal liability for reconciliation with the victim A. and making amends for the damage caused to her, she accepted, without taking into account the results of consideration by the court of first instance, the claim of the civil plaintiff K., in whose favor the court recovered material damage in the amount of 415,457 tenge due to damage to her car as a result of B.'s guilty actions. the commission of a traffic accident and this circumstance deprives the plaintiff of the right to compensation for damages. Having studied the case materials and discussed the arguments of the participants in the process, the judicial Board for Criminal Cases of the Supreme Court considers that the decision of the appellate instance is subject to cancellation and the verdict to be changed on the following grounds. In accordance with paragraph 6 of part 1 of Article 485 of the CPC, one of the grounds for cassation review of judicial acts that have entered into force, specified in part 1 of Article 484 of this Code, is violations of constitutional rights and freedoms of citizens committed during the investigation or judicial review of the case, or the improper application of criminal and criminal procedure laws, which incorrect resolution of a civil claim. Such grounds have been established in the case under consideration.

As can be seen from the case file, the court of first instance reliably established the circumstances of B.'s commission of a traffic accident due to a violation of traffic rules, as a result of which a car under his control collided with a BMW-318 car with license plate 358FKA/01, which caused serious harm to the health of the passenger of this car A. B.'s guilt. The commission of this crime is confirmed by the totality of the examined evidence and is not disputed by any of the participants in the process. Legal assessment of B.'s actions according to part 2 of Article 345 of the Criminal Code, it is correct and the imposed punishment meets the requirements of Article 52 of the Criminal Code. The court of first instance, in accordance with the rules of Articles 166-170 of the CPC, lawfully resolved the civil claim filed by the victim A. for compensation for material and moral damage to her, and also reasonably satisfied the claims of K., who was recognized as a civil plaintiff during the pre–trial proceedings on the basis of the investigator's decision of December 22, 2015, due to the fact that K. He is the legal owner of the BMW-318 car, which was damaged as a result of the guilty actions of convict B. during a road accident, the material damage from which amounted to 415,457 tenge. At the same time, during the consideration of the case in the appeal proceedings, the court committed a number of violations of the criminal procedure law, which resulted in infringement of the legitimate rights and interests of the civil plaintiff K. and affected the correctness of the procedural decision. Thus, in violation of the requirements of Article 420 of the CPC, the court did not notify the civil plaintiff K. about the appeal filed by the convicted person with arguments for reconciliation with the victim, A., in view of making amends for the harm caused to her, did not take any procedural steps to send a copy of the complaint and clarify the rights to file objections.  As a result, having checked the arguments of the appeal of convicted B. In accordance with articles 426 and 432 of the CPC and having established their reliability, the court of appeal, by overturning the verdict in full and terminating the criminal case against the convicted person under part 1 of Article 68 of the Criminal Code, showed one-sidedness in investigating and assessing the circumstances of the case, thereby violating the provisions of Article 24 of the CPC. In particular, having failed to protect K.'s rights, he did not investigate and was not convinced of the presence or absence of circumstances affecting her rights and interests, and did not reflect in the court decision the fate of her civil claim resolved by the court of first instance, which inextricably follows from the circumstances established in the case and the verdict.

In this state of affairs, the judicial board considers the arguments of the submission to be well-founded and subject to satisfaction. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court overturned the decision of the appellate instance against convicted B. and changed the verdict of the first instance. On the basis of part 1 of Article 68 of the Criminal Code, part 1 of Article 36 of the CPC, the convicted B. was released from criminal liability under part 2 of Article 345 of the Criminal Code. The same verdict regarding the satisfaction of the claim of the victim A. It was cancelled and the proceedings were terminated due to compensation for the damage caused. The rest of the verdict was upheld. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied. 

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