Unjustified refusal due to inconsistency of the complaint of a private prosecution without providing a deadline for the elimination of inconsistency
As judicial practice shows, private prosecutors most often do not know all the subtleties of legislation and cannot always accurately disclose the above circumstances, but in any case, the judge must require that the complaint of the private prosecutor indicate: the event of the crime (striking, where, how, how many times, what consequences – wounds, scratches, bruises, etc.), the place of the crime (the address of the apartment, house, which is necessary to determine the territorial jurisdiction), the time and exact date of the crime, which is necessary to determine the timing of criminal prosecution, the circumstances of the commission (motive for the crime, whether there were eyewitnesses of the crime, etc.). At the same time, according to the clarifications of paragraph 3 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of private prosecution", courts do not have the right to refuse to accept a complaint for trial due to the absence of an event or corpus delicti in the acts described in the complaint, including on grounds of insignificance, lack of evidence, etc. The refusal to accept the victim's complaint for proceedings is carried out in cases when the person who filed the complaint did not comply with the judge's instructions to bring the complaint into the appropriate procedural form, the complaint was filed by an improper person, etc. A study of the judges' rulings has established that some judges may refuse to accept a private complaint on formal grounds.
Unjustified refusal due to inconsistency of the complaint of a private prosecution without providing a deadline for the elimination of inconsistency
Thus, the judges of the court No. 2 of the city of Pavlodar refused to accept complaints on 46 complaints of private prosecution due to the lack of a list of witnesses. Indeed, upon receipt of a private complaint, the judge is obliged to check whether there are circumstances that impede the judicial proceedings in the case, which oblige the judge to refuse to accept the application for his proceedings, to allow time for the elimination of deficiencies. However, as follows from the requirements of part 4 of Article 409 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), witness lists may also be requested by a judge in preparation for a trial. In addition, according to part 4 of Article 410 of the CPC, the law obliges the judge to assist the parties in collecting evidence at their request, including calling witnesses. It should be noted that a criminal offense could have been committed in the absence of witnesses. In addition, since the judge's refusal to accept the application does not prevent the victim or his legal representative from re-applying for the same grounds and for the same episode of the charge with a new application that meets the requirements of the law, such court decisions force persons to file complaints again and create red tape in resolving the criminal situation. In this regard, the courts should, in each specific case, when determining whether a complaint meets the requirements of the law, approach decision-making from the point of view of exercising their rights to judicial protection. In addition, there are cases when, despite meeting the requirements of the law and eliminating the shortcomings indicated in the judge's decision to bring the complaint of a private prosecution into line, the court unreasonably decides to refuse to accept the complaint into court proceedings. So, Zh. appealed to court No. 2 of the Medeu district of Almaty with a complaint in the order of private prosecution for bringing Zh. to criminal responsibility. according to part 1 of Article 130 of the Criminal Code. By the decision of the district court No. 2 of the Medeusky district In Almaty on April 29, 2016, due to the inconsistency of his complaint with the requirements of part 2 of Article 408 of the CPC, Zh. was given until May 11, 2016 to eliminate the shortcomings in the complaint. Within the time limit set by the court, J. fulfilled the court's requirements, and on May 6, 2016, they submitted a private prosecution complaint to the court of first instance after correcting the deficiencies, with the necessary documents specified in the court's decision of April 29, 2016.
However, by the decision of the district court No. 2 of the Medeu district of Almaty dated May 11, 2016, in accepting the complaint of Zh. A private prosecution was refused on the grounds that the author of the complaint had failed to comply with the above-mentioned requirements of the law. The decision of the Anti-Corruption Service for Almaty with the adoption of a procedural decision, which the court referred to in its decision as a necessary document for filing a complaint against the private prosecution of Zh., the court had the right to request during the consideration of the case. According to paragraph 3 of the normative resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of private prosecution", courts do not have the right to refuse to accept a complaint for trial due to the absence of an event or corpus delicti in the acts described in the complaint, including on grounds of insignificance, lack of evidence, etc. The refusal to accept the victim's complaint for proceedings is carried out in cases when the person who filed the complaint did not comply with the judge's instructions to bring the complaint into the appropriate procedural form, the complaint was filed by an improper person, etc. Since there are no such grounds for refusing to accept the complaint. the court did not have one, and by a decision of the appellate judicial board dated June 28, 2016, this decision to refuse to accept the complaint was overturned and the complaint was sent to the same court for consideration on its merits. The next example of an unjustified refusal to accept a complaint is the appeal of T. to Court No. 2 of the Bostandyk district of Almaty, which filed a complaint about bringing S. and S. to criminal responsibility under part 2 of Article 130 of the Criminal Code of the Republic of Kazakhstan (hereinafter – the Criminal Code). By the judge's decision of December 25, 2015, T. was given a deadline to eliminate the shortcomings of the complaint until December 29, 2015, indicating that the complaint did not contain information about the date of birth and place of residence of the persons being held criminally responsible, evidence of their guilt, and the language of the proceedings, since the news story on the basis of which T. The charges of slander against the named persons were conducted in the official language, and the complaint to the court was filed in Russian. On December 29, 2015, by a decision of Judge T., the appeal was refused admission to proceedings due to the failure to remedy the shortcomings indicated in the decision of December 25, 2015. The appellate judicial board, which reviewed the case based on T.'s private complaint, found that he had fulfilled all the requirements specified in the decision of the court of first instance. On December 29, 2015, an addendum to the complaint was submitted to the court of first instance, where he indicated that he could not find out the date of birth and residential addresses of S. and Sh., since these information were not publicly available, indicated the addresses of their place of work as information, provided a video on a flash card as evidence, the statements of the participants of the television story in a private complaint are given by him both in Kazakh and translated into Russian. Therefore, the judge's demand for a notarized translation of the entire plot into Russian was found to be unfounded. In addition, in accordance with part 4 of Article 30 of the CPC, persons participating in criminal proceedings are provided with free translation into the language of criminal proceedings of the case materials they need, presented in another language. The Court of Appeal, recognizing that there were no grounds for refusing to accept the complaint of a private prosecution, overturned the decision of the judge of the District court No. 2 of the Bostandyk district of Almaty dated December 29, 2015 on the refusal to accept T.'s complaint against S. and Sh. and he sent it to the same district court for consideration on the merits. Similar examples take place in other courts. So, despite the fact that in a private complaint Sh. on bringing to criminal responsibility T. for defamation under part 3 of Article 130 of the Criminal Code, with which she appealed to the Kazybekbiysky District Court of the city of Karaganda, the name of the court, a description of the event, the place and time of the commission of the criminal offense, evidence, a request for acceptance of the case, information about T., was indicated by a decision dated May 13, 2016 in accepting a private complaint into proceedings. The court was refused on far-fetched grounds that the complaint did not comply with the requirements of part 2 of Article 408 of the CPC for the form and content of a private prosecution complaint.
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