Commentary on Article 13. Respect for the Honour and Dignity of the Individual of the Criminal Procedure Code of the Republic of Kazakhstan

1. In the course of criminal proceedings, decisions and actions that humiliate the honour or diminish the dignity of a person participating in criminal proceedings are prohibited. The collection, use and dissemination of information concerning private life, as well as information of a personal nature that a person considers necessary to keep confidential, for purposes not provided for by this Code, shall not be permitted.

2. Moral harm caused to a person by unlawful actions of the bodies conducting criminal proceedings shall be compensated in accordance with the procedure established by law.

Honour and dignity are positive qualities of an individual, and any participant in criminal proceedings may be their bearer. Dignity is a set of characteristics describing a person's high moral qualities, as well as an awareness of the value of these qualities and self-respect (an individual's self-esteem); honour is social and moral worth, that which inspires and sustains general respect and a sense of pride (a positive social assessment of an individual) (see Ozhegov S.I. Dictionary of the Russian Language. — Moscow, 1997. 4th edition, pp. 145, 735; Legal Encyclopaedic Dictionary. — Moscow: SES, 1984. p. 408). A definition of honour and dignity similar in content is set out in Regulatory Resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 18 December 1992, “On the Application in Judicial Practice of Legislation on the Protection of the Honour, Dignity and Business Reputation of Individuals and Legal Entities”: honour is the public assessment of a person, the measure of their spiritual and social qualities; dignity is an individual's internal self-assessment of their own qualities, abilities, worldview and social significance. Business reputation is a stable positive assessment of a person's business (production-related, professional) merits by public opinion (paragraph 1).

Human dignity is inviolable; no one shall be subjected to torture, violence or other cruel or degrading treatment or punishment, as proclaimed in Article 17 of the Constitution. This constitutional principle of criminal proceedings is preventive in nature and is addressed primarily to the bodies and officials conducting criminal proceedings. The regulation of this procedural provision is based on the state's recognition of the principles and norms of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention against Torture, which unequivocally condemn any encroachment upon the honour and dignity of an individual in criminal proceedings and establish an entire system of rules in this regard. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, as proclaimed in Article 5 of the Universal Declaration of Human Rights. All persons deprived of their liberty shall be treated humanely and with respect for the inherent dignity of the human person (Article 10, paragraph 1); no person shall be subjected to medical or scientific experimentation without their free consent (Article 7); no one shall be subjected to arbitrary or unlawful interference with their privacy or family life, arbitrary or unlawful attacks on the inviolability of their home or the secrecy of their correspondence, or unlawful attacks on their honour and reputation (Article 17, paragraph 1), as further provided by the International Covenant on Civil and Political Rights. Each State shall systematically review rules, instructions, methods and practices relating to interrogation, as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture (Article 11); each State shall ensure that its competent authorities conduct a prompt and impartial investigation whenever there are reasonable grounds to believe that an act of torture has been committed in any territory under its jurisdiction (Article 12), as specified by the Convention against Torture, and so forth.

Article 112 of the Criminal Procedure Code is of fundamental importance with regard to the issue under consideration. According to its provisions, factual data shall be deemed inadmissible as evidence if obtained through the use of torture, violence, threats, deception, or other unlawful acts (subparagraph 1) of paragraph 1 of Article 112 of the Criminal Procedure Code).

A citizen has the right to protection of the confidentiality of their private life, including the confidentiality of correspondence, telephone conversations, diaries, notes, written communications, intimate life, adoption, birth, medical confidentiality, attorney-client privilege and bank deposit secrecy. Disclosure of private-life confidentiality is permitted only in cases established by legislative acts (Article 144 of the Civil Code). In the course of criminal proceedings, the bodies conducting criminal proceedings are obliged to take all necessary measures to preserve the confidentiality and prevent the disclosure of information concerning private life obtained during procedural actions, as well as information of a personal nature that a participant in the proceedings considers necessary to keep confidential and which is unrelated to the proceedings in the case (Article 47 of the Criminal Procedure Code). The procedure for maintaining the confidentiality of inquiry and pre-trial investigation data is one of the important general conditions of pre-trial investigation (Article 201 of the Criminal Procedure Code). Disclosure of inquiry or pre-trial investigation data entails criminal liability (Articles 423—424 of the Criminal Code).

The principle of respect for the honour and dignity of the individual in criminal proceedings is protected by the provisions of the Criminal Code, which establish criminal liability for officials of the bodies conducting criminal proceedings for knowingly bringing an innocent person to criminal liability (Article 412), knowingly unlawful detention, placement in custody or keeping in custody (Article 414), coercion to give testimony (Article 415), and torture (Article 146).

The elimination of the consequences of moral harm caused to a person by unlawful actions of the bodies conducting criminal proceedings is carried out in accordance with the procedure provided for by the Criminal Procedure Code (Article 41), the Civil Procedure Code (Article 30), and the Civil Code (Articles 141, 142, 923, 951—952). Explanations concerning the procedure for compensation for moral harm are also contained in Regulatory Resolution No. 7 of the Supreme Court dated 9 July 1999, “On the Practice of Applying Legislation on Compensation for Harm Caused by Unlawful Actions of Bodies Conducting Criminal Proceedings”, and Regulatory Resolution No. 7 of the Supreme Court dated 27 November 2015, “On the Application by Courts of Legislation on Compensation for Moral Harm”. Thus, a claim for full compensation for property damage and elimination of the consequences of moral harm shall be considered by a judge in accordance with the procedure provided for in Chapter 4 of the Criminal Procedure Code. Claims for monetary compensation for moral harm caused shall be brought exclusively in civil proceedings. If the six-month period for submitting a claim for compensation for property damage in accordance with the procedure provided for in Chapter 4 of the Criminal Procedure Code has expired and has not been restored, the person shall be entitled to apply to the court through civil proceedings. When considering such claims, courts should proceed on the basis that the right to compensation for property and moral harm arises from the liability of the State, regardless of the fault of the bodies conducting criminal proceedings and their officials, and that the harm shall be compensated from budgetary funds (paragraph 10 of Regulatory Resolution No. 7 of the Supreme Court dated 9 July 1999, “On the Practice of Applying Legislation on Compensation for Harm Caused by Unlawful Actions of Bodies Conducting Criminal Proceedings”). At the same time, compensation for moral harm shall be provided upon establishing the fault of the person who caused the harm. In cases provided for by the Civil Code, personal non-property benefits and rights are subject to judicial protection regardless of the fault of the person who violated those rights. In the statement of claim, the plaintiff is obliged to indicate the circumstances and provide evidence confirming the fact of violation of their personal non-property benefits and rights and the necessity of their protection, as well as the amount of compensation which, in their opinion, will ensure compensation for the moral harm caused to them. Claims by citizens for compensation for moral harm caused by bodies conducting criminal proceedings shall be considered in civil proceedings (paragraph 5 of Regulatory Resolution No. 7 of the Supreme Court dated 27 November 2015, “On the Application by Courts of Legislation on Compensation for Moral Harm”).

Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan, by Marat Chekishеvich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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