Comment to article 866. Elimination of consequences of moral harm The Code of the Republic of Kazakhstan on Administrative Offences
1. The body (official) that has made the decision on the rehabilitation of a person is obliged to bring him in writing an official apology for the harm caused.
2. Claims for monetary compensation for moral damage are filed in civil proceedings.
3. If a person has been unlawfully brought to administrative responsibility, and information about this has been published in the press, distributed on radio, television or other mass media, then at the request of this person, and in the event of his death – at the request of his relatives or the prosecutor, the relevant mass media must, within one month, make a statement about this is the necessary message.
4. At the request of the persons specified in Article 862 of this Code, the body (official) authorized to consider cases of administrative offenses must, within ten days, send a written notice of the cancellation of their illegal decisions at their place of work, study, and residence.
The commented article defines the procedure for eliminating the consequences of moral harm caused by illegal actions of a court, body (official). The title of the article says that moral damage cannot be compensated in full, it can only be partially compensated. For the most part, this article is based on the principle of dispositivity, that is, on the free expression of the will of the person in respect of whom the decision on rehabilitation has been made.
According to the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 7 dated November 27, 2015 "On the application by courts of legislation on compensation for moral harm", moral harm should be understood as moral or physical suffering experienced by a citizen as a result of unlawful violation, diminution or deprivation of personal non-property rights and benefits belonging to him.
Moral suffering (emotional and volitional experiences of a person) - feelings of humiliation, irritation, depression, anger, shame, despair, inferiority, discomfort, etc. These feelings may be caused, for example, by unlawful encroachment on the life and health of both the victim himself and his close relatives, spouse; unlawful deprivation or restriction of freedom or the right to free movement; harm to health, including disfiguring open parts of the human body with scars and scars; disclosure of family, personal or medical secrecy; violation of the secrecy of correspondence, telephone or telegraphic messages; dissemination of untrue information discrediting the honor and dignity of a citizen; violation of the right to a name, to an image; violation of his copyright and related rights, etc.
Physical suffering is the physical pain experienced by a citizen in connection with the commission of violence or harm to health.
Part 1 of Article 866 of the Administrative Code is imperative. That is, regardless of the will of the person in respect of whom the decision on rehabilitation has been made, the body (official) is obliged to bring him an official apology for the harm caused. According to this provision, it remains unclear how the body (official) should make an official apology for the harm caused.
It seems that this issue can be resolved by analogy with the existing provision in the criminal procedure law of the Republic of Kazakhstan. Namely, according to paragraph 7 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999 No. 7 "On the practice of applying legislation to compensate for damage caused by illegal actions of bodies conducting criminal proceedings", an official apology for the damage must be expressed in writing.
Due to the formality of its nature, the notification must be issued on a special or official letterhead and signed by the body (official) who made the decision on rehabilitation. This document, with reference to a specific decision of the court or body on the rehabilitation of a person, should indicate the illegality of the ongoing administrative prosecution and include words about an official apology for the moral damage caused.
Part 2 of this article provides an opportunity for a person in respect of whom a decision on rehabilitation has been made to apply to the court with a claim for compensation for moral damage in monetary terms. The citizen's claim for compensation will be carried out in the order of civil proceedings, that is, the general claim procedure. In the statement of claim, the plaintiff is obliged to indicate the circumstances and provide evidence confirming the violation of his personal non-property benefits and rights, and the need to protect them, as well as the amount of compensation that, in his opinion, will provide compensation for the moral damage caused to him.
The amount of compensation for moral damage to persons in respect of whom a rehabilitation decision has been made is decided by the court, and the decision on this issue is entirely the prerogative of the court. When determining the amount of compensation, the court is guided by the norms of the Civil Code and the provisions of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 7 dated November 27, 2015 "On the application by courts of legislation on compensation for moral damage." The court, when assigning the final amount of compensation, in accordance with paragraph 7 of the said resolution, is guided by the principles of reasonableness and fairness.
However, there is no single approach to determining the amount of compensation for moral damage in the current legislation of the Republic of Kazakhstan. Perhaps in the future, the legislator will decide to streamline the amount of payments by setting the maximum and minimum amounts of such payments. This would be an appropriate step in solving this problem.
It is important to recognize the fact that despite the right to receive compensation for moral damage in administrative proceedings, such a question was practically not raised in the judicial practice of the Republic of Kazakhstan before the adoption of the updated legislation. This is due to various reasons, but to a greater extent, due to the fact that the persons against whom the decision on rehabilitation was made did not know and do not know about their right to compensation for harm provided for in Chapter 48 of the Administrative Code.
Part 3 of this article provides for the right of a citizen to rehabilitation by reporting in the media about the illegal bringing of him to administrative responsibility, if information about this was published in the press, distributed on radio, television or other mass media. This right belongs directly to the person unlawfully brought to administrative responsibility, in the event of his death, to relatives or the prosecutor. This requirement must be fulfilled within 1 month from the date of application.
The refutation in periodicals should be published in the same font and placed under the heading "Refutation" in the place where the refuted message or material was located.
The refutation must be broadcast on radio and television at the same time of day and in the same TV or radio program as the refuted message or material, and in cases of closure of the specified TV or radio program - in another TV or radio program with the appropriate thematic focus.
As a rule, such a requirement should be addressed by the citizen himself, who wishes to refute the information disseminated about him. However, in the vast majority of cases, such a request comes from the prosecutor, to whom a citizen applies for protection of his rights, in respect of whom his personal non-property rights have been violated.
This is due to the fact that almost all publications in the press are currently carried out on paid terms, and, naturally, the press authorities are not interested in the non-commercial use of newspaper strips, magazines and other publications. Only the prosecutor can influence the reversal of such a situation, since his instructions are binding on all press organs, regardless of their forms of ownership, in particular, those that disseminated such information.
Part 4 of the commented article provides that in the case of a claim by a citizen who has been unlawfully brought to administrative responsibility, the body (official) authorized to consider cases of administrative offenses is obliged to inform in writing about the cancellation of its decisions at the place of work, study, residence.
Part 4 of Article 866 of the Administrative Code implies sending an official message (similar to Part 1 of Article 866 of the Administrative Code). Moreover, based on the literal understanding of this part 4 of Article 866 of the Administrative Code, it follows that if a person works and studies, then such a message should be sent not only to his place of work, but also to his studies. A similar message is sent to the citizen's place of residence. Such a message is necessary so that the person does not experience discomfort, feelings of shame, etc. for an offense that he did not commit, that is, depending on the specific requirements of the citizen, the specific addressee of the official messages sent from the body (official) authorized to consider cases of administrative offenses will also depend.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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