Commentary on Article 38. Persons Entitled to Compensation for Harm Caused as a Result of Unlawful Actions of the Body Conducting Criminal Proceedings of the Criminal Procedure Code of the Republic of Kazakhstan
1. Harm caused to a person as a result of unlawful detention, remand in custody, house arrest, temporary suspension from office, placement in a special medical institution, conviction, or the application of compulsory medical measures shall be compensated in full from budgetary funds, regardless of the fault of the body conducting criminal proceedings.
2. The right to compensation for harm caused as a result of the relevant unlawful actions of the body conducting criminal proceedings shall belong to:
1) persons specified in the first part of Article 37 of this Code;
2) persons in respect of whom the criminal case was subject to termination on the grounds provided for in paragraph 5) of part one of Article 35 of this Code, if, despite the absence of the circumstances provided for in part four of Article 32 of this Code, the pre-trial investigation was not terminated from the moment the circumstances precluding criminal prosecution were identified;
3) persons in respect of whom the criminal case should have been terminated on the grounds provided for in paragraphs 3) and 4) of part one of Article 35 of this Code, but was not terminated from the moment the circumstances precluding criminal prosecution were identified, and criminal prosecution was unlawfully continued despite the consent of such persons to the termination of the criminal case;
4) a person sentenced to arrest or imprisonment, who was detained or held in custody in cases where the qualification of the act was changed to an article of the Criminal Code of the Republic of Kazakhstan providing for liability for a less serious criminal offence, in connection with suspicion or accusation of which detention or remand in custody is not permitted under this Code, or where a new, more lenient punishment was imposed under that article, or part of the charge was excluded from the judgment and the punishment was reduced accordingly, as well as in the event of the reversal of an unlawful court decision on the application of compulsory medical measures or compulsory educational measures. The actual period served in the form of arrest or imprisonment shall be considered unlawfully served to the extent that it exceeds the maximum term of arrest or imprisonment provided for by the article of the Criminal Code of the Republic of Kazakhstan under which the act committed by the guilty person was reclassified;
5) a person held in custody beyond the prescribed period without lawful grounds, as well as a person unlawfully subjected to any other procedural coercive measures during criminal proceedings;
6) a person in respect of whom covert investigative actions were conducted and subsequently declared unlawful by a court.
3. In the event of the death of a citizen, the right to compensation for harm in accordance with the established procedure shall pass to his or her heirs, and, with regard to the receipt of pensions and benefits whose payment had been suspended, to those family members who belong to the category of persons entitled to benefits in connection with the loss of a breadwinner.
4. Harm shall not be subject to compensation to a person if it is proven that, during the pre-trial investigation and court proceedings, such person, by means of voluntary self-incrimination, obstructed the establishment of the truth and thereby contributed to the occurrence of the consequences specified in part one of this Article.
5. In the absence of the circumstances specified in paragraph 3) of part two of this Article, the rules of this Article shall not apply to cases where procedural coercive measures applied against a person or a conviction delivered against that person have been reversed or amended due to the issuance of acts of amnesty or pardon, the expiration of limitation periods, or the adoption of a law eliminating criminal liability or mitigating punishment.
6. Other circumstances shall not constitute grounds for compensation for harm.
Note. Article 38 was amended by Law of the Republic of Kazakhstan No. 118-VI dated December 21, 2017 (shall enter into force upon the expiration of ten calendar days after the date of its first official publication).
According to the clarification contained in Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999, the list of persons specified in Article 38 of the CPC who are entitled to compensation for harm caused by the bodies conducting criminal proceedings is exhaustive. The issue of compensation for harm caused to other persons who participated in judicial proceedings in a case (witnesses, attesting witnesses, interpreters, etc.) shall be resolved in civil proceedings (paragraph 3).
Compensation for direct harm in full from the funds of the republican budget, regardless of the fault of the body conducting criminal proceedings, within the meaning of part 1 of Article 38 of the CPC, concerns cases involving specifically the unlawful application by such bodies of certain procedural coercive measures (Articles 128—135, 136—140, 146—153 of the CPC), placement in a special medical institution (part 2 of Article 14, Article 279 of the CPC), compulsory medical measures applied to persons declared legally insane (Articles 509—524 of the CPC), and conviction. In all the above cases, inquirers, investigators, prosecutors and judges commit serious departures from the requirements of procedural form regarding the conditions, grounds, sequence and procedure established by the provisions of the CPC for proceedings as a whole or for the performance of a specific procedural action and the adoption of the corresponding procedural decision.
In addition to direct harm, moral harm may also be compensated to a citizen at the expense of the state treasury (funds of the republican or local budget), regardless of the fault of the person who caused the harm. In this case, the defendant in claims for compensation for moral harm at the expense of the state treasury (republican or local budget) is the State, and the territorial jurisdiction of this category of cases in courts shall be determined by the location of the representative of the state treasury. Representatives of the state treasury may include the Ministry of Finance of the Republic of Kazakhstan or other state bodies, legal entities or individuals vested with special powers to represent the interests of the state treasury. When considering this category of cases, courts must establish the specific representative of the state treasury and the administrator of the relevant budget programme and involve them in the proceedings (paragraphs 11—12 of Regulatory Resolution No. 7 of the Supreme Court dated November 27, 2015, “On the Application by Courts of Legislation on Compensation for Moral Harm”).
3. An analysis of the provision of part 2 of Article 38 of the CPC also indicates that all cases in which the bodies conducting criminal proceedings fail to apply the provisions of Article 35 of the CPC, “Circumstances Precluding Proceedings in a Case”, when they should have duly applied them upon establishing the absence of an event of a criminal offence, the absence of the elements of a criminal offence, and the existence of other circumstances, provided that the relevant criminal-law conditions for each such ground are present, shall be regarded as unlawful procedural actions. Where such application of the law constitutes a right rather than an obligation of the body conducting criminal proceedings, that body must ensure that the relevant rights are properly explained to suspects, accused persons, defendants and convicted persons, who may choose whether or not to exercise them. When adopting such a decision, the Supreme Court explains that the body conducting criminal proceedings should determine and, in accordance with Article 39 of the CPC, where grounds exist, indicate in an acquittal judgment or a decision terminating the case, or in a decision reversing or amending other unlawful decisions, that the person is recognized as having the right to compensation for harm caused by unlawful actions of the bodies conducting criminal proceedings (paragraph 6 of Regulatory Resolution No. 7 of the Supreme Court dated July 9, 1999). Also particularly valuable is the Supreme Court's clarification that the calculation of the amount of harm and the determination of the category of persons entitled to compensation thereof shall be carried out in accordance with the law in force at the time the harm was caused. Before the Criminal Procedure Code of the Republic of Kazakhstan entered into force, the amount of harm shall be determined in accordance with the rules established by the Regulation “On the Procedure for Compensation for Damage Caused to a Citizen by Unlawful Actions of the Bodies of Inquiry, Preliminary Investigation, the Prosecutor's Office and the Court”, approved by Decree of the Presidium of the Supreme Soviet of the USSR dated May 18, 1981.
When determining the amount of harm in accordance with the provisions of the CPC, attention should be paid to the circumstances determining the points in time and periods from which the actions of the bodies conducting criminal proceedings are recognized as unlawful. In particular, in accordance with paragraph 4) of part 2 of Article 38 of the CPC, detention or remand in custody, or the serving of criminal punishment in the form of arrest or imprisonment, shall be recognized as unlawful in cases where the qualification of the act is changed to an article of the Criminal Code providing for liability for a less serious criminal offence, in connection with suspicion or accusation of which detention or remand in custody is not permitted, or where a more lenient punishment is imposed under that article, or part of the charge is excluded from the judgment and the punishment is reduced accordingly, as well as in cases where an unlawful court decision on the application of compulsory medical measures or compulsory educational measures is reversed. In this regard, the actual period spent in custody, or the period of punishment in the form of arrest or imprisonment, shall be considered unlawfully served to the extent that it exceeds the maximum term of arrest or imprisonment provided for by the article of the Criminal Code under which the act committed by the guilty person was reclassified. If the article of the Criminal Code under which the criminal offence was reclassified does not provide for arrest or imprisonment as a type of punishment, then the periods of custody, arrest and imprisonment shall be considered unlawfully served to the extent that they cannot be credited against the punishment provided for by the specified article of the Criminal Code (paragraph 12 of Regulatory Resolution No. 7 of the Supreme Court dated July 9, 1999).
The periods of remand in custody, as well as the procedure for applying other procedural coercive measures during proceedings in a case, are regulated by Articles 151—153 and 155—165 of the CPC. In this regard, the periods of remand in custody as a preventive measure and the procedure for their extension are provided for in Article 151 of the CPC. Violation of these periods and of the procedure for extending remand in custody shall be regarded as unlawful actions of the bodies conducting criminal proceedings. Without a court sanction, a person may be detained for a period not exceeding seventy-two hours (paragraph 2 of Article 16 of the Constitution, part 5 of Article 128 of the CPC). Exceeding the periods of detention of a person as a suspect established by the CPC, where no preventive measure in the form of remand in custody has been applied to that person, also constitutes a gross violation of the provisions of the CPC (part 4 of Article 131 of the CPC). Other procedural coercive measures that may be recognized as unlawful include violations of the procedural form governing the application of: an undertaking to appear before an inquirer, investigator or court (Article 156 of the CPC); compulsory appearance (Article 157 of the CPC); temporary suspension from office (Article 158 of the CPC); monetary penalties (Articles 159—160 of the CPC); seizure of property (Articles 161—164 of the CPC); and restraining orders prohibiting approaching a person (Article 165 of the CPC).
According to part 3 of Article 40 of the CPC, claims for compensation for property damage may be submitted both by the persons listed in part 2 of Article 38 of the CPC themselves and by their legal representatives. In the cases provided for in part 3 of Article 38 of the CPC, claims for compensation for harm may also be submitted by heirs and family members who, in accordance with pension legislation, are entitled to benefits in connection with the loss of a breadwinner (paragraph 8 of Regulatory Resolution No. 7 of the Supreme Court dated July 9, 1999).
6. “If any person has been convicted of a criminal offence by a final decision and if the sentence imposed on that person has subsequently been reversed or the person has been granted a pardon on the ground that a new or newly discovered fact conclusively demonstrates the existence of a miscarriage of justice, that person who has suffered punishment as a result of such conviction shall be compensated in accordance with the law, unless it is proven that the failure to discover the unknown fact in due time was wholly or partly attributable to that person”, as stated in paragraph 6 of Article 14 of the International Covenant on Civil and Political Rights. In this regard, the CPC regulates approaches to the procedure for compensating harm to a person who has incriminated himself or herself, as a result of which procedural coercive measures were applied against that person, etc. As a general rule, such harm shall not be compensated. However, if the case establishes that prohibited methods of conducting an investigation were used or that other violations of the law occurred which could have resulted in the suspect, accused person or defendant incriminating himself or herself or giving false testimony, the harm caused to the person in connection with unlawful conviction or other unlawful actions of the bodies conducting criminal proceedings shall be subject to compensation (paragraph 13 of Regulatory Resolution No. 7 of the Supreme Court dated July 9, 1999).
The rules of part 5 of Article 38 of the CPC clarify the specific features of the application of paragraph 3) of part 2 of the same Article. Where a criminal case is terminated due to the adoption of an act of amnesty or pardon, the expiration of limitation periods, or the adoption of a law eliminating criminal liability or mitigating punishment, a claim for compensation for harm shall be satisfied only for the period during which, despite the person's consent to the termination of the case on these grounds, a decision to terminate criminal prosecution and revoke the procedural coercive measures was not adopted in a timely manner (paragraph 14 of Regulatory Resolution No. 7 of the Supreme Court dated July 9, 1999).
Thus, the provisions of Article 38 of the CPC, taking into account the clarifications contained in Regulatory Resolution No. 7 of the Supreme Court dated July 9, 1999, regulate an exhaustive list of persons and procedural situations associated with mandatory compensation for harm at the expense of budgetary funds. All other circumstances cannot constitute grounds for raising the issue of compensation for harm, as established by the provision of part 6 of Article 38 of the CPC.
Commentary of 2020 to 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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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