of June 30, 2005 No. 6
About practice of application of the regulations of the Code of penal procedure regulating participation of the victim in criminal procedure
For the purpose of the correct and uniform application by courts of the regulations of the Code of penal procedure regulating participation of the victim in criminal procedure, and providing its rights and legitimate interests the Plenum of the Supreme Court of the Republic of Belarus
1. Draw the attention of courts that strict observance of the regulations of the criminal procedure law regulating participation of the victim in criminal procedure is the important sales warranty person, the victim of crime, the inalienable right to access to justice and judicial protection.
In case of production of pretrial investigation and judicial review of each criminal case all measures provided by the law to clarification of nature and the extent of the harm done by crime (item 4 p.1 of Art. 89 of the Code of Criminal Procedure), to establishment of the group of people to which this harm is done shall be taken.
2. Explain to courts that in sense of Art. 49 of the Code of Criminal Procedure to the victims can be recognized only physical person to which it is direct crime (irrespective of, the crime ended is or preparation or aggravated attempt took place) or socially dangerous act of deranged provided by the penal statute physical, property or moral harm is done.
Person is recognized to the victims irrespective of his nationality, age, physical or mental condition and other data on the personality, from establishment of person who committed crime, legitimacy of behavior of the victim, except as specified, when person suffered from the crime committed by it or harm is done during his detention when making of crime by it if exceeding necessary for this purpose was not allowed died.
Recognition by the criminal procedure law which was injured the representative of the legal entity is not provided as the legal entity to whom the crime or socially dangerous act deranged do harm exercises the rights by presentation of the civil action.
3. On cases on crimes which effect was the death of the victim persons belonging to members of the family of the dead (item 53 of Art. 6 of the Code of Criminal Procedure), his close relatives (item 1 of Art. 6 of the Code of Criminal Procedure) or the legal representatives (item 8 of Art. 6 of the Code of Criminal Procedure) performing the rights and who are carrying out the obligations provided by Art. 50 of the Code of Criminal Procedure are allowed to participation in criminal procedure as the victims. At the same time it must be kept in mind that in item 1 of Art. 6 of the Code of Criminal Procedure the exhaustive list of the persons recognized by close relatives and allowed to participation in criminal procedure as the victims is this. Other relatives, and also the other persons carried to family members according to provisions of item 53 of Art. 6 of the Code of Criminal Procedure can act in this quality on condition of cohabitation and maintaining general economy with the dead.
If family members, close relatives, legal representatives of the dead did not reach among themselves the agreement on the one which of them will perform the victim's rights, they can be also recognized as the victims.
4. Courts need to mean that person can be acknowledged injured both according to its statement, and at the initiative of the body conducting criminal procedure, but not earlier than initiation of legal proceedings.
The decision on recognition of person by the victim shall be made immediately on establishment to it the bases that is important guarantee of ensuring timely access for the victim to justice, realization by it of the procedural law and accomplishment of obligations.
The body conducting criminal procedure shall explain to the victim of its right and obligation, and also to give opportunity for submission of the action for declaration about indemnification.
5. In the presence of the bases for application of measures for safety the body conducting criminal procedure shall take such measures concerning the victim, members of his family and relatives (Art. 65 of the Code of Criminal Procedure) as according to their statement, and on own initiative. At the same time specific security measures are applied taking into account the degree of threat irrespective of category of the committed crime and circumstances of its making including from that, the crime by one contractor, in partnership or group (organized group) is committed.
The resolution (determination) goes to the body competent of providing security measures. In necessary cases the written notice can be sent to the victim or the resolution on application of security measures is announced.
6. If the victim from crime is minor or incapacitated person, then the body conducting criminal procedure provides participation in proceeedings of his legal representative. According to provisions of the p. 3 of Art. 57 of the Code of Criminal Procedure the legal representative of the victim has no right to make any actions against interests of person represented to them. With respect thereto the body conducting criminal procedure should take the measures directed to prevention of such actions.
7. Draw the attention of courts that participation in criminal procedure of the victim, his legal representative does not exclude possibility of simultaneous participation in case of the representative of the victim who performs the rights and carries out the obligations provided by Art. 59 of the Code of Criminal Procedure.
Unlike the legal representative whose recognition and the admission to participation in criminal proceeding does not depend on will of the victim the representative of the victim only person authorized by the victim or his legal representative can be recognized to represent its interests in case of proceeedings (Art. 58 of the Code of Criminal Procedure).
If necessary the legal representative of the victim can be interrogated on the facts of the case known to it as the witness that does not involve change of its procedural provision. At the same time owing to Art. 87 of the Code of Criminal Procedure making the testimony by person excludes possibility of its participation in production on this criminal case as the victim's representative.
Interrogation instead of the victim its legal and other representatives on circumstances of crime execution is not allowed.
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