Violation of the statutory deadline for reviewing complaints of private prosecution
According to article 8 of the CPC, one of the tasks of the criminal procedure is a fair trial and the correct application of criminal law, the protection of individuals, society and the State from criminal offenses. The procedure established by law for criminal proceedings should provide protection from unjustified charges and convictions, unlawful restrictions on human and civil rights and freedoms, and in the case of unlawful charges or convictions of an innocent person, his immediate and complete rehabilitation, as well as contribute to strengthening law and order, preventing criminal offenses, and fostering respect for the law. The analysis of the materials provided and studied showed that in practice, the courts of first instance generally correctly apply legislation in the field of private prosecution cases. At the same time, there are violations in the acceptance of complaints from private prosecution, which prevents citizens from exercising their rights to defense, restricts access to justice and leads to red tape in resolving the conflict situation that has arisen, forcing them to file a private complaint with the court. One of the main reasons allowed by the courts when accepting private complaints is the violation of the time limits for issuing a decision provided for in part 2 of Article 409 of the Code of Criminal Procedure of the Republic of Kazakhstan (hereinafter referred to as the CPC). 1. In particular, M.'s statement on bringing G. to criminal responsibility under Article 130 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), submitted to Court No. 2 of the Zhetysu district of Almaty on November 3, 2016, was in court without making any procedural decision until November 9, 2016, while M. I have not applied to withdraw my private complaint.
Violation of the statutory deadline for reviewing complaints of private prosecution
The judge returned the private complaint by letter without issuing a ruling. Whereas, in accordance with article 409 of the CPC, a judge is obliged to decide on the acceptance of the complaint into his proceedings immediately after receiving a complaint from a private prosecution. If the complaint does not comply with 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 decision to return the application to the person who submitted it, in which he invites him to bring the application in accordance with the specified requirements and sets a time limit for this. However, the judge, contrary to the requirements of the law, did not take any action on the private complaint received. Moreover, the court, by returning M.'s private complaint by letter, committed actions not provided for by the current criminal procedure law. Also, in violation of the time limit set by part 2 of Article 409 of the CPC, a private complaint was considered. on the initiation of a private prosecution case under Article 108 of the Criminal Code, received by the Turksib District Court of Almaty on February 19, 2016 from the Department of Internal Affairs of the Turksib district of Almaty with the attachment of the applicant's complaint, the decision to transfer the forensic medical examination report and explanatory notes to the jurisdiction. The court also failed to take any action on this complaint. On March 5, 2016, Zh. filed a statement with the court requesting that her complaint be dismissed. The court needed to determine whether she was withdrawing her private complaint or asking to leave it without consideration for some time due to departure, illness, etc., since leaving a complaint without consideration is not provided for in cases of private prosecution. However, 15 days after the receipt of Zh.'s complaint, the application for dismissal of the complaint was refused to be accepted by the court. A copy of the decision was sent to the applicant only 52 days after the decision was issued, namely on April 27, 2016. The courts should take into account that the calculation of the period specified in part 2 of Article 409 of the CPC must be carried out from the date of receipt of a private complaint that meets 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 period established by part 2 of Article 409 of the CPC should be calculated from the date of bringing the complaint into compliance. Upon receipt of a private complaint that meets the requirements specified in part 2 of Article 408 of the CPC, the judge, in accordance with part 2 of Article 409 of the CPC, makes the following types of procedural decisions within 3 days: 1) on the acceptance of the complaint for its own production; 2) on the transfer of jurisdiction or jurisdiction; 3) on the refusal to accept the complaint for production. From the moment the judge accepts the application for his proceedings, on which the decision is issued, the person who submitted it is a private prosecutor and victim, and the person against whom a private complaint has been filed is the defendant.
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