Comment to article 409. Actions of a judge in a private prosecution case before the start of the trial The Criminal Procedure Code of the Republic of Kazakhstan

If the filed complaint does not meet the requirements specified in the second part of Article 408 of this Code, the judge, by his decision, suggests to the person who filed it to bring it into compliance with these requirements and sets a time limit for this. In case of non-fulfillment of the instruction, the judge, by his decision, refuses to accept the complaint for trial and notifies the person who filed it. The refusal to accept a complaint in this circumstance does not prevent the re-filing of a similar complaint to the court within the limitation period of criminal liability.

Having considered the complaint in the case of a private prosecution, the judge issues a ruling within three days.:

1) on the acceptance of the complaint for its own proceedings;

2) on the transfer of a complaint under investigation or jurisdiction;

3) the refusal to accept the complaint for trial.

The judge accepts the complaint for his proceedings if it meets the requirements specified in the second part of Article 408 of this Code and is within the jurisdiction of this court.

If the complaint is beyond the jurisdiction of this court or when it contains a request to charge a person with committing other acts not specified in the second part of Article 32 of this Code, the judge by his decision sends the complaint respectively to the court of jurisdiction or the body of criminal prosecution under investigation.

By his decision, the judge refuses to accept the complaint if the author of the complaint has not fulfilled the requirements of the first part of Article 409 of this Code or the circumstances provided for in Article 35 of this Code have been established, in the presence of which criminal prosecution cannot be initiated.

A copy of the resolution on the decision taken on the complaint is sent to the applicant, and in the case provided for in paragraph 1) of the second part of this article, also to the accused.

If there are grounds for calling a court session, the judge must, within seven days from the date of receipt of the complaint to the court, summon the person against whom the complaint has been filed, familiarize him with the case materials, hand over a copy of the complaint, explain the defendant's rights at the court session provided for in Article 65 of this Code, and take away his receipt. The judge will demand from the private prosecutor and the defendant the lists of witnesses whom they will summon to the court session. If the person against whom the complaint has been filed fails to appear in court, a copy of the complaint explaining the rights of the defendant, as well as the need to provide the court with a list of defense witnesses, is sent by mail or using other means of communication.

The judge is obliged to explain to the minors and their representatives their right to apply for the transfer of the case under the jurisdiction of the district and equivalent court.

The judge is obliged to explain to the parties the possibility of reconciliation, including through mediation. If they receive an application for reconciliation or an agreement to achieve reconciliation through mediation, the proceedings in the case shall be terminated by a judge's decision on the basis of paragraph 5) of the first part of Article 35 of this Code.

If reconciliation between the parties has not been achieved, the judge, after fulfilling the requirements of parts four and six of this article, appoints the hearing of the case at a court hearing in accordance with the rules of Article 322 of this Code.

The law requires strict compliance with all the requirements for the content of the complaint provided for in the second part of article 408 of the Code of Criminal Procedure. The refusal to accept the victim's complaint for proceedings is carried out in cases where the person who filed the complaint did not comply with the judge's instructions to bring the complaint into the appropriate procedural form. The refusal to accept the complaint is formalized by a reasoned decision of the judge. However, the refusal to accept the complaint on these grounds does not prevent the person from filing a second complaint with the court after the deficiencies have been eliminated.

A complaint about bringing a person to criminal responsibility on a private charge is preliminarily considered by a judge within three days in order to verify the existence of a crime event, the jurisdiction of the case and other circumstances necessary for the case to be accepted for trial. Based on the results of consideration of the complaint, the judge makes one of the following decisions: to accept the complaint for his own production; to transfer the complaint under investigation or jurisdiction; to refuse to accept the complaint for production. The judge's decision is made in the form of a reasoned decision. If the complaint meets the requirements specified in the second part of Article 408 of the Code of Criminal Procedure and is within the jurisdiction of this court, the judge is obliged to accept the complaint for his proceedings.

The judge notifies the applicant of the decision on the complaint and sends him a copy of the decision. If the complaint is accepted for trial, the judge also sends a copy of the decision to the accused.

In order to consider a case on a private charge, the judge must, within seven days from the date of receipt of the complaint, hand over or send to the accused a copy of this complaint for review and clarification of the defendant's rights provided for in article 65 of the Code of Criminal Procedure, for which he takes away a receipt from him. In addition, the judge will request the lists of witnesses from the private prosecutor and the defendant, whom they will summon to the court session.

Reconciliation of the parties in cases of private prosecution is possible at any stage of the trial. The judge is obliged to explain to the parties the possibility of reconciliation, including through mediation. If reconciliation has taken place, the judge issues a decision to dismiss the case.

The judge must explain to the victims that in case of refusal of charges and reconciliation with the accused, the possibility of re-filing a complaint about bringing the same person to criminal responsibility for the same acts is excluded.

6.      In cases where reconciliation has not been achieved, the judge appoints the hearing of the case in a court session according to the rules of Article 322 of this Code.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

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