NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of December 25, 2006 No. 13

About court practice for private prosecution

For the purpose of uniform and correct application of the legislation in case of production on criminal cases of private prosecution, and in connection with the questions arising in court practice, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

1. To courts in case of production on criminal cases of private prosecution it is necessary to observe precisely and steadily requirements of the law, for the purpose of providing the right of everyone to judicial protection of their honor, advantage, security of person and other constitutional rights.

2. Reason for excitement of private prosecution is the claim of the victim: the physical person which reached 18-year age, the legal entity, legal representatives and representatives of the victim specified in Article 71, 76 Codes of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure).

According to part four of article 32 Code of Criminal Procedure production for private prosecution can be initiated by the prosecutor and in the absence of the claim of the victim if act infringes on interests of person which is in helpless or dependent condition or not capable independently to use the rights belonging to it for other reasons.

Courts should mean that in case of production for private prosecution concerning persons having privileges and immunity from prosecution the features of production provided by Chapter 57 of the Code of Criminal Procedure are effective.

Private prosecution concerning persons having privileges and immunity from prosecution are initiated only by the prosecutor according to the procedure and on the bases provided by the law.

2-1. In case of determination of cognizance of cases of private prosecution it is necessary to observe provisions of article 314 Code of Criminal Procedure that criminal case is subject to consideration in court in the place of making of criminal offense.

In case of determination of cognizance of cases on criminal offenses, stipulated in Article 131 UK, it is necessary to proceed from following provisions. The structure of insult is considered ended when the insult is heard it (is received) by person to whom it is stated. In this regard criminal cases upon the insult expressed by the direction to the addressee by mail or fax connection either through social networks or in oral form by phone shall be considered by court in the location of person concerning which the insult is stated.

3. Courts have no right to refuse adoption of the claim to production due to the lack in the acts described in the claim, event or structure of criminal offense including based on insignificance of deeds, failure of evidence, not attaching to the claim of data on former criminal record, mental condition of the person accused, etc.

The refusal in adoption of the claim of the victim to production is performed in cases when person who made the complaint did not perform instruction of the judge for reduction of the claim in the corresponding procedural form, the complaint is made not by proper person, etc. The refusal in adoption of the claim of the victim to production is drawn up by the motivated judge's ruling.

4. The procedural document which initiates private prosecution is the claim of the victim about involvement of person to criminal liability, and it determines limits of legal proceedings. At the same time, the court does not issue the decree on initiation of legal proceedings. The judge in case of acceptance of the claim shall be guided by part one of article 409 Code of Criminal Procedure and be convinced whether all necessary data for its correct permission contain in it, in particular: when by whom and where illegal act is made in what specifically it was expressed and what the request of person which was injured about attraction about who the complaint, to criminal liability is made is confirmed.

The oral or anonymous claim of the victim to production is not accepted.

5. The victim who took a legal action with the claim in the matter of private prosecution in which he asks to bring the perpetrator to trial shall be warned by the judge about criminal liability for obviously false denunciation. About it the mark in the claim becomes or the separate protocol signed by the applicant is constituted.

6. Statements and messages on criminal offense in case of receipt in bodies of pre-judicial investigation are subject to registration in the Unified register of pre-judicial investigations and on them within three days urgent investigative actions shall be carried out.

In case of factual determination that in the message the question of responsibility for making of criminal offense for which prosecution is performed in private procedure is put, and at the same time there is no claim of the victim, production according to this message is subject to the termination on the basis, stipulated in Item 5) parts one of article 35 Code of Criminal Procedure. In such cases in the resolution on the termination of criminal case it shall be surely specified that the case is dismissed not upon act, and in the absence of the claim of the victim on private prosecution what does not interfere with the victim (the private prosecutor) to make the complaint according to the procedure, provided by the law.

If the complaint in the matter of private prosecution is made to the victims, then it together with materials of urgent investigative actions according to part five of article 179 Code of Criminal Procedure goes to the district and equated to it court according to territorial jurisdiction of the case what the applicant is notified on.

If in the address it is specified about availability, along with offenses of private prosecution, other offenses pursued in private and public or public procedure, then the body of pre-judicial production shall make the decision on these structures of offenses.

7. According to the claim which arrived from criminal prosecution authorities or directly taken by the applicant to court the judge should call the victim and to find out whether he supports the request for involvement of person to criminal liability, and also other circumstances necessary for its correct permission.

In cases not of compliance of the claim to the requirements specified in part two of article 408 Code of Criminal Procedure the judge according to part one of article 409 Code of Criminal Procedure issues the decree in which suggests the author of the claim to bring it into accord with the specified requirements and establishes for this purpose term.

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