Commentary on Article 173. Victim Compensation Fund of the Criminal Procedure Code of the Republic of Kazakhstan

• 1. Victims shall have the right to receive compensation in the cases and in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan on the Victim Compensation Fund.
• 2. The court shall recover the compulsory payment in accordance with Articles 98-1 and 98-2 of the Criminal Code of the Republic of Kazakhstan.
• 3. The court shall impose the obligation to reimburse the money paid as compensation, in the amount established by the Law of the Republic of Kazakhstan “On the Victim Compensation Fund”, on:
• 1) the guilty person;
• 2) the legal representatives of a minor recognized as guilty of committing a criminal offence;
• 3) a legal entity that, in accordance with the laws of the Republic of Kazakhstan, bears material liability for harm caused by the criminal offence of an individual.
• 4. A decision to terminate a pre-trial investigation on the grounds provided for in paragraphs 3), 4) and 12) of part one of Article 35, and part one of Article 36 of this Code, shall constitute grounds for recovering money, through civil proceedings, in favour of the Victim Compensation Fund, from the persons specified in part three of this Article, in the amount established by the Law of the Republic of Kazakhstan “On the Victim Compensation Fund”.
• 5. Money paid to victims from the Victim Compensation Fund shall be recovered from the victim in cases where it is established that the victim submitted inaccurate information in order to obtain compensation, as well as where criminal offences are reclassified under offences not provided for in Article 6 of the Law of the Republic of Kazakhstan “On the Victim Compensation Fund”, and the criminal case is terminated or a court acquittal based on the absence of a criminal offence has entered into legal force.
• Note. Article 173 as amended by Law of the Republic of Kazakhstan No. 132-VI dated 10 January 2018 (comes into force on 1 July 2018).

On 10 January 2018, in order to implement the requirements of part 1 of Article 173 of the CPC, the Law of the Republic of Kazakhstan “On the Victim Compensation Fund” was adopted. The dates on which the provisions of this Law enter into force are specified in Article 13 thereof. The establishment of the Fund for Compensation of Harm to Victims in the Republic of Kazakhstan meets the requirements of universal international instruments developed for victims of crime and reflects the existing international experience in this area of criminal procedure.

Thus, paragraph 12 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by UN General Assembly Resolution 40/34 of 29 November 1985, expressly states: “When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation:a) to victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;b) to the family, in particular dependants, of persons who have died or become physically or mentally incapacitated as a result of such victimization.”

Paragraph 13 states: “The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in cases where the State of which the victim is a national is unable to compensate the victim for the harm caused.”

The Fund for Compensation of Harm in the criminal proceedings of the Republic of Kazakhstan is intended for victims of criminal offences who have actually suffered harm as a result of a criminal offence or a socially dangerous act committed by an insane person, where such acts have been recognized as such by a decision of the criminal prosecution authority. The Fund is designed to ensure the most prompt (immediate) and full provision of monetary funds stipulated by the Law, since the satisfaction of their civil claims is not resolved immediately and requires a certain amount of time, while the nature of the harm caused (property-related or physical) places the victim, members of their family and close relatives in a difficult life situation (part 1 of Article 173 of the CPC).

Compensation shall be paid by the central authorized body for budget execution to the bank accounts of compensation recipients no later than ten calendar days following the date on which the centralized register of compensation recipients is submitted by the state body performing criminal prosecution functions (paragraph 1 of Article 9). In the absence or insufficiency of funds, compensation shall be paid by the central authorized body for budget execution when the funds of the Victim Compensation Fund are replenished from the sources specified in paragraph 1 of Article 10 of the Law (paragraph 2 of Article 9).

According to the Law “On the Victim Compensation Fund”, it establishes the legal, economic, social and organizational foundations aimed at ensuring the payment of compensation to victims in respect of certain elements of criminal offences. The purpose of the Fund is to accumulate monetary funds that are promptly provided to a specific category of victims in the form of monetary compensation in the cases, in the manner, in the amounts and within the time limits established by a special legislative act (part 1 of Article 173 and part 2 of Article 673 of the CPC). Thus, not all victims of criminal offences are entitled to benefit from the opportunities provided by this Fund. It is important to note that monetary compensation does not replace full restoration of the harm caused by a criminal offence within the procedural framework for the consideration of a civil claim in criminal proceedings.

The Law “On the Victim Compensation Fund” consists of four chapters: “General Provisions”, “Procedure for Payment of Compensation to Victims”, “Sources of Formation of the Victim Compensation Fund”, and “Final Provisions”.

In particular, pursuant to subparagraphs 1—3 of Article 1 of the Law, persons vested with the rights of a victim include the legal representatives and representatives of the victim, as well as legal successors in accordance with the CPC (subparagraph 1); the Victim Compensation Fund is a cash control account opened with the central authorized body for budget execution for the purpose of crediting monetary receipts and making compensation payments to victims in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan on the Victim Compensation Fund (subparagraph 2); compensation is a one-time payment of money, in accordance with the procedure established by the Law, to a person recognized as a victim in accordance with the Criminal Procedure Code of the Republic of Kazakhstan (subparagraph 3); recourse claims are measures taken by prosecution authorities in respect of persons specified in Article 1 of the Law to ensure the return of money paid to victims as compensation (subparagraph 4). Activities involving the payment of compensation to victims are based on the following principles: 1) legality; 2) respect for human and civil rights, freedoms and legitimate interests; 3) accessibility (Article 3).

The Law clearly defines the powers of state bodies performing criminal prosecution functions, which include (Article 4): explaining to the victim the right to receive compensation in accordance with the procedure established by the legislation of the Republic of Kazakhstan on the Victim Compensation Fund (subparagraph 1) (Note of the Reference Control Bank of Regulatory Legal Acts! Subparagraph 1) shall enter into force on 1 July 2020, in accordance with Law of the Republic of Kazakhstan No. 131-VI dated 10 January 2018); requesting information necessary for making a decision on the award of compensation (subparagraph 2) (Note of the Reference Control Bank of Regulatory Legal Acts! Subparagraph 2) shall enter into force on 1 July 2020, in accordance with Law of the Republic of Kazakhstan No. 131-VI dated 10 January 2018); awarding compensation, where grounds exist, in accordance with the procedure established by the legislation of the Republic of Kazakhstan on the Victim Compensation Fund (subparagraph 3) (Note of the Reference Control Bank of Regulatory Legal Acts! Subparagraph 3) shall enter into force on 1 July 2020, in accordance with Law of the Republic of Kazakhstan No. 131-VI dated 10 January 2018); maintaining a centralized register of compensation recipients (subparagraph 4) (Note of the Reference Control Bank of Regulatory Legal Acts! Subparagraph 4) shall enter into force on 1 July 2020, in accordance with Law of the Republic of Kazakhstan No. 131-VI dated 10 January 2018); submitting the centralized register of compensation recipients to the central authorized body for budget execution monthly, by the fifteenth day of the month following the month in which the decision to award compensation was issued (subparagraph 5) (Note of the Reference Control Bank of Regulatory Legal Acts! Subparagraph 5) shall enter into force on 1 July 2020, in accordance with Law of the Republic of Kazakhstan No. 131-VI dated 10 January 2018); and developing and approving a joint regulatory legal act governing the return of compensation paid without justification (subparagraph 6).

Within the meaning of Article 6 of the Law, victims include the following categories of individuals who have suffered as a result of criminal offences: minors who are victims of crimes related to sexual violence, and persons recognized as victims of crimes related to human trafficking and torture (for certain elements of criminal offences specified in eight Articles of the Criminal Code, the amount of compensation is 30 MCI (subparagraph 1 of paragraph 1 of Article 6, paragraph 1 of Article 7); persons who have sustained grievous bodily harm or have been infected with the human immunodeficiency virus (HIV/AIDS) (for certain elements of criminal offences specified in 36 Articles of the Criminal Code, the amount of compensation is 40 MCI (subparagraph 2 of paragraph 1 of Article 6, paragraph 2 of Article 7); persons vested with the rights of a victim in the event of the victim's death (for certain elements of criminal offences specified in 41 Articles of the Criminal Code, the amount of compensation is 50 MCI (subparagraph 3 of paragraph 1 of Article 6, paragraph 3 of Article 7); foreign nationals and stateless persons from the moment they are recognized as victims, unless otherwise provided for by the laws and international treaties ratified by the Republic of Kazakhstan.

Paragraph 4 of Article 7 contains a provision stating that, where a person is recognized as a victim of several criminal offences provided for in subparagraphs 1—3 of paragraph 1 of Article 6 of the Law, the amount of compensation shall be determined by absorbing the smaller amount of compensation into the larger amount established for one of the criminal offences.

The Law also comprehensively regulates the procedure for awarding compensation (Article 8). Thus, after being recognized as a victim, a person shall have the right to submit an application for the award of compensation to the state body performing criminal prosecution functions (paragraph 1), which is obliged to consider the application within ten calendar days from the date of its registration (paragraph 2). At the same time, the limitation period for submitting an application is three years from the date on which the person was recognized as a victim (paragraph 3). If the deadline for submitting an application is missed, the victim or a person vested with the rights of a victim shall have the right to apply to the court for restoration of the missed deadline in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan (paragraph 4).

The procedure for processing an application submitted by a victim or a person vested with the rights of a victim includes: 1) consideration of the application; 2) informing the victim or the person vested with the rights of a victim in writing of the results of the consideration of the application, with an explanation of the right to appeal the decision made (paragraph 5).

A decision to award compensation or to refuse compensation shall be made by the authorized head of the state body performing criminal prosecution functions (paragraph 6).

Compensation shall be awarded on the basis of the following documents (paragraph 6): 1) an application submitted by the victim or a person vested with the rights of a victim; 2) copies of the document certifying the identity of the victim or documents confirming the identity of the person vested with the rights of a victim and their right to receive compensation; 3) information on the bank account number of the victim or the person vested with the rights of a victim, opened with banks and (or) organizations carrying out certain types of banking operations; 4) a copy of the decision of the body conducting the criminal proceedings recognizing the person as a victim; 5) a copy of a document confirming the nature and degree of severity of the harm caused to the victim's health; 6) in the event of the victim's death, a copy of the death certificate or another document confirming the victim's death. One compensation payment shall be awarded to all members of the family of the deceased. A separate compensation payment shall be awarded for each deceased person who is a member of the same family. The documents provided for in subparagraphs 1—3 of paragraph 6 shall be submitted by the victim or the person vested with the rights of a victim, who may also submit other documents, if necessary. The victim or the person vested with the rights of a victim shall be responsible for the accuracy of the submitted documents in accordance with the laws of the Republic of Kazakhstan. The documents provided for in subparagraphs 4—6 of paragraph 6 shall be obtained by the state body performing criminal prosecution functions. The authorized head of the state body performing criminal prosecution functions shall bear responsibility, in accordance with the laws of the Republic of Kazakhstan, for the unjustified award of compensation and inclusion in the centralized register of compensation recipients.

This Law also provides for grounds for refusing to award compensation, which include (paragraph 7 of Article 8): absence of grounds provided for by this Law (subparagraph 1); failure to comply with the deadline for submitting an application (subparagraph 2); submission of inaccurate documents (subparagraph 3); full compensation by the guilty person for the harm caused to the victim (subparagraph 4); a decision of the body conducting the criminal proceedings terminating the person's participation in the proceedings as a victim (subparagraph 5). A decision refusing to award compensation may be appealed by the victim or the person vested with the rights of a victim in accordance with the procedure established by the legislation of the Republic of Kazakhstan.

The Fund shall be formed from the following non-tax sources (Article 10): compulsory payments recovered by the court (Note of the Reference Control Bank of Regulatory Legal Acts! Subparagraph 1) shall enter into force on 1 July 2018, in accordance with Law of the Republic of Kazakhstan No. 131-VI dated 10 January 2018) (subparagraph 1 of paragraph 1); monetary penalties imposed by the court on victims, witnesses, specialists, interpreters and other persons, with the exception of lawyers, prosecutors and defendants, for failure to perform procedural duties provided for in Articles 71, 78, 80, 81, 82, 90, 142, 156 and 165 of the CPC and for violating order during court hearings (Note of the Reference Control Bank of Regulatory Legal Acts! Subparagraph 2) shall enter into force on 1 July 2018, in accordance with Law of the Republic of Kazakhstan No. 131-VI dated 10 January 2018) (subparagraph 2 of paragraph 1); monetary penalties recovered from a convicted person in respect of whom a court conviction has entered into legal force and who has been sentenced to corrective labour (Note of the Reference Control Bank of Regulatory Legal Acts! Subparagraph 3) shall enter into force on 1 July 2018, in accordance with Law of the Republic of Kazakhstan No. 131-VI dated 10 January 2018) (subparagraph 3 of paragraph 1); money recovered through recourse claims (Note of the Reference Control Bank of Regulatory Legal Acts! Subparagraph 4) shall enter into force on 1 July 2020, in accordance with Law of the Republic of Kazakhstan No. 131-VI dated 10 January 2018) (subparagraph 4 of paragraph 1); and other sources not prohibited by the legislation of the Republic of Kazakhstan (Note of the Reference Control Bank of Regulatory Legal Acts! Subparagraph 5) shall enter into force on 1 July 2018, in accordance with Law of the Republic of Kazakhstan No. 131-VI dated 10 January 2018) (subparagraph 5 of paragraph 1).

When the court delivers a guilty verdict, a compulsory payment to the Victim Compensation Fund shall be recovered from the guilty persons on the basis of Articles 98-1 and 98-2 of the Criminal Code (paragraph 2) (Note of the Reference Control Bank of Regulatory Legal Acts! Paragraph 2 shall enter into force on 1 July 2018, in accordance with Law of the Republic of Kazakhstan No. 131-VI dated 10 January 2018).

The remaining funds of the Victim Compensation Fund shall not be subject to seizure or transfer to the state budget (paragraph 3) (Note of the Reference Control Bank of Regulatory Legal Acts! Paragraph 3 shall enter into force on 1 July 2018, in accordance with Law of the Republic of Kazakhstan No. 131-VI dated 10 January 2018).

The issuance of collection orders against the Victim Compensation Fund shall not be permitted (paragraph 4) (Note of the Reference Control Bank of Regulatory Legal Acts! Paragraph 4 shall enter into force on 1 July 2018, in accordance with Law of the Republic of Kazakhstan No. 131-VI dated 10 January 2018).

A separate article of the Law addresses recourse claims (Article 11). Thus, recourse claims against guilty persons for reimbursement of money paid to victims as compensation shall be brought by prosecution authorities within the framework of representing and protecting the interests of the State in court (paragraph 1). Money paid to victims from the Victim Compensation Fund shall also be recovered by the court from: the legal representatives of a minor recognized as guilty of committing a crime (subparagraph 1 of paragraph 2); legal entities that, in accordance with the laws of the Republic of Kazakhstan, bear material liability for harm caused by the criminal offence of an individual (subparagraph 2 of paragraph 2); persons in respect of whom criminal prosecution has been terminated on the grounds provided for in paragraphs 3—4 and 12 of part 1 of Article 35 or part 1 of Article 36 of the CPC (subparagraph 3 of paragraph 2); and the victim, in cases where it is established that the victim submitted inaccurate information in order to obtain compensation, as well as where criminal offences are reclassified under offences not provided for in Article 6 of the Law, and the criminal case is terminated or a court acquittal based on the absence of a criminal offence has entered into legal force (subparagraph 4 of paragraph 2) (Note of the Reference Control Bank of Regulatory Legal Acts! Article 11 shall enter into force on 1 July 2020, in accordance with Law of the Republic of Kazakhstan No. 131-VI dated 10 January 2018).

It should be noted that legal representatives and legal entities are obliged to make payment on behalf of the person who committed the act, provided that the conditions and grounds stipulated in Articles 921—923, 925—928 and 930—931 of the Civil Code are present (subparagraphs 2—3 of part 2 of Article 173 of the CPC).

As a rule, a compulsory payment is collected for a specific criminal offence committed by a person. If a person commits a set of criminal offences and is found guilty of committing them, the amount of such payment shall be calculated based on the most serious of those offences, as established by the court verdict. If a criminal offence is committed by a group of persons, the compulsory payment shall be recovered separately from each guilty person (paragraph 2 of Article 10 of the Law).

Where a criminal case is terminated on grounds that do not exonerate the person: due to an amnesty act, if it eliminates the application of punishment for the acts committed (paragraph 3 of part 1 of Article 35 of the CPC); due to the expiration of the limitation period for bringing a person to criminal liability (paragraph 4 of part 1 of Article 35 of the CPC); in respect of a person subject to release from criminal liability pursuant to the provisions of the Criminal Code (paragraph 12 of part 1 of Article 35 of the CPC) – the issue of collecting payment for the criminal offence committed shall be resolved through civil proceedings based on a claim filed by the prosecutor in the interests of the State and the victims in the case (part 2 of Article 58 and part 3 of Article 173 of the CPC).

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

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