of June 24, 2004 No. 8
About practice of consideration by courts of the civil action in criminal procedure
Having discussed results of generalization of court practice of consideration of the civil action in criminal procedure, for the purpose of ensuring the correct and uniform application by courts of the law Plenum of the Supreme Court of the Republic of Belarus
1. Draw the attention of courts that the correct permission of the civil action in criminal procedure is important guarantee of the timely indemnification caused by crime. Therefore the court shall provide complete and objective examination of the civil action commenced in case of criminal proceeding and to resolve it in strict accordance with requirements of the material and procedural law.
2. Courts need to mean that in criminal procedure civil actions about compensation of physical, property or moral harm only in cases when such harm is done directly by crime or socially dangerous act of deranged provided by the penal statute are subject to consideration.
The claims made on other bases (for example, recourse actions to accused according to the procedure of Art. 950 of group of companies), are not subject to consideration in criminal procedure.
3. Courts should consider that the group of people, having rights to presentation of the civil action in criminal procedure, is determined in чч. 1, 2 and 6 Art. 149 of the Code of Criminal Procedure. At the same time the claim can be made both in written, and in oral form from the moment of initiation of legal proceedings and before the end of court investigation.
Presentation of the claim in case of appointment and preparation of legal proceedings is possible only in writing as the taking the minutes is not provided by the law in this stage of criminal procedure.
The claims declared by person in oral form during legal proceedings are subject to entering in the protocol of judicial session in which are reflected subject, the bases and the size of claims (Art. 308 of the Code of Criminal Procedure).
In case of presentation of the claim by the prosecutor persons for the benefit of whom the claim is made are informed on it.
4. Explain to courts that, as a rule, person who bears responsibility according to the civil action for the harm done by crime is the person accused. Pronouncement of the resolution (determination) on recognition of the person accused by the civil defendant is not required, however he, as well as the civil defendant, shall be acquainted with contents of the made claim, and during legal proceedings it is given opportunity to give explanations in the claim.
The physical person or legal entity is recognized the civil defendant only cases when the liability for actions of the person accused can be conferred on it by law and in connection with the made claim (the Art. of the Art. 54, of 152 Codes of Criminal Procedure).
5. Persons concerning whom the body conducting criminal procedure issues the relevant decree (determination) are allowed to participation in criminal proceeding as the civil claimant, the civil defendant, legal and other representatives (p.1 the Art. of the Art. 52, of 54, of 56, of 58 Codes of Criminal Procedure). Their rights and obligations provided by the criminal procedure law shall be explained to these persons.
6. Legal representatives of the person accused, person who made socially dangerous act of the civil claimant are recruited in criminal proceeding when it is necessary to provide representation in criminal procedure of interests of minor or incapacitated person. Legal representatives persons specified in chch.1 and the 2nd Art. 56 of the Code of Criminal Procedure are recognized.
In case of permission of petitions for the admission to participation in criminal procedure of other persons as representatives of the civil claimant, the civil defendant courts need to be guided by provisions st.st.72 and 73 GPK.
7. If in case of appointment and preparation of legal proceedings or in case of legal proceedings of criminal case it is determined that the rights of the civil claimant, the civil defendant, legal or other representatives are provided to someone unreasonably, the court the motivated resolution (determination) shall stop participation of such persons in criminal procedure. At the same time the court (judge) shall notify person who can be acknowledged proper civil claimant, about its right to presentation of the civil action or recruit in the case of the proper civil defendant.
8. Draw the attention of courts to need of timely acceptance of the measures provided by the law to providing the claim which according to Art. 132 of the Code of Criminal Procedure consist in property attachment. These measures can be taken in case of appointment and preparation of legal proceedings, in case of legal proceedings of criminal case, and also after the resolution of sentence, but to its introduction in legal force.
The resolution on measures for providing the claim goes to stages of appointment and preparation of legal proceedings the judge to criminal prosecution authority for execution (Art. 284 of the Code of Criminal Procedure). Determination (resolution) of court on property attachment which is taken out in case of legal proceedings or to the introduction of sentence in legal force is performed according to the procedure, stipulated by the legislation about enforcement proceeding.
9. The court shall find out in case of legal proceedings of criminal case whether the civil claimant, his representative support the declared claims and whether the person accused, the civil defendant, his representative recognize the made claim.
In case of refusal of the civil claimant, his representative of the claim by court motives of such refusal shall be found out. The effects of acceptance by court of abandonment of claim provided by both the p. 4 of Art. 154 of the Code of Criminal Procedure, and the Art. 164 GPK are explained to the civil claimant.
Abandonment of claim by court is not accepted if it is forced, that is does not reflect free declaration of will of person, and also in the presence of the circumstances specified in the p. 4 of the Art. of 61 GPK.
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