Commentary on Article 39. The Right to Compensation for Harm and Time Limits for Submitting Claims of the Criminal Procedure Code of the Republic of Kazakhstan
1. Having made a decision on the full or partial rehabilitation of a person, the body conducting the criminal proceedings must recognize that person's right to compensation for harm. A copy of the acquittal judgment or the resolution terminating the pre-trial investigation, or annulling or amending other unlawful decisions, shall be delivered or sent by mail to the interested person. At the same time, a notice explaining the procedure and time limits for submitting claims for compensation for harm shall be sent to that person. Where there is no information regarding the place of residence of the heirs, relatives or dependants of a deceased person entitled to compensation for damage, the notice shall be sent to them no later than five days from the date on which they apply to the body conducting the criminal proceedings.
2. The persons specified in Parts Two and Three of Article 38 of this Code shall have the right to full compensation for pecuniary damage, elimination of the consequences of non-pecuniary damage, and restoration of their employment, pension, housing and other rights. Persons deprived by a court judgment of honorary, military, special or other titles, class ranks, diplomatic ranks, qualification classes, as well as state awards, shall have their titles, class ranks, diplomatic ranks and qualification classes restored, and their state awards returned.
3. Claims for compensation for harm caused by unlawful actions of the body conducting criminal proceedings, in accordance with the procedure established by this Chapter, may be submitted within six months from the date of receipt of the notice explaining the procedure for restoration of rights. If this time limit is missed for a valid reason, it may be restored by the court upon an application by the interested persons.
Note. Article 39 was amended by Law of the Republic of Kazakhstan dated 27 December 2019 No. 292-VI (for the procedure for its entry into force, see Article 2).
The rehabilitation of a person, within the meaning of the provision of Part 1 of Article 39 of the CPC, is permitted in two forms: full and partial. Full rehabilitation is formalized by the issuance of an acquittal judgment on the grounds of the absence of the event or elements of a criminal offence, or the failure to prove the defendant's participation in its commission (Article 394 of the CPC); or by the issuance of a resolution by the body of inquiry, investigator or prosecutor terminating the criminal case due to the absence of the event or elements of a criminal offence, or the failure to prove the person's participation in the commission of the crime (subparagraphs 1 and 2 of Part 1 and Part 2 of Article 35 of the CPC). Partial rehabilitation is also established in procedural decisions of criminal prosecution bodies and courts of the relevant instance, whereby the original procedural decisions are annulled or amended in the direction of reducing the scope of the charges, including by terminating criminal prosecution in respect of some of the charges due to confirmation of the innocence of the suspect or accused, or by reclassifying the act to a less serious category in terms of its public danger; by annulling unlawfully applied compulsory medical measures or compulsory educational measures; by annulling or amending unlawfully applied measures of procedural coercion, etc. Partial rehabilitation, for example, occurs as a result of appeals against the actions and decisions of criminal prosecution bodies, including through judicial proceedings (Articles 104–107 of the CPC).
The rehabilitated person shall be informed of the procedure for compensation for harm caused by unlawful actions of the bodies conducting criminal proceedings. This action should be carried out at the place where the investigation or judicial proceedings were conducted. After the pronouncement of the judgment, the acquitted person shall be informed of their right to compensation for harm caused by unlawful detention, being brought in as a suspect or accused, the application of a preventive measure, and unlawful committal for trial, as well as of the procedure for exercising this right (Part 3 of Article 402 of the CPC). The suspect, accused and other participants in the proceedings shall be notified in writing of the termination of the criminal case and the grounds for such termination (Part 1 of Article 289 of the CPC).
3. In this regard, the Supreme Court, in the aforementioned Regulatory Resolution No. 7 dated 9 July 1999, clarifies that a decision on rehabilitation, in accordance with Article 39 of the CPC, must be sent to the person together with the acquittal judgment or the resolution terminating the criminal case, accompanied by the text of a notice explaining the procedure for compensation for harm. The notice shall indicate that the person is entitled to claim compensation for pecuniary damage, elimination of the consequences of non-pecuniary damage, and restoration of employment, pension, housing and other rights that were violated in connection with the judicial proceedings in the case. The notice shall also explain the procedure for compensation for harm: the time limit within which the person is entitled to submit a claim; an indication of the authorities to which the following claims should be submitted: a request to send information about the rehabilitation to the relevant mass media, to the person's place of employment, study and residence; a claim for compensation for pecuniary damage; a claim for restoration of employment, pension, housing and other rights; a claim for compensation for the non-pecuniary damage caused; a claim for the return of state awards and restoration of honorary and other titles, ranks, grades and qualification classes, etc. The notice must contain the outgoing reference number and the date of dispatch, since these are relevant to the calculation of the time limits for submitting claims (paragraph 6).
Within the six-month period specified in Part 3 of Article 39 of the CPC, calculated from the date of receipt of the aforementioned decisions, to which a notice from the body of inquiry, investigation, prosecutor or court concerning the right to compensation for harm and the procedure for such compensation must be attached, persons entitled to compensation for harm may submit a claim for compensation to the authorities whose competence includes deciding the issues raised in the claim concerning the restoration of violated rights. In particular, a claim for restoration of employment rights may be submitted to the organization, enterprise or institution where the rehabilitated person worked at the time of their removal from office in connection with being held criminally liable or convicted; a claim for payment of unpaid pensions and benefits may be submitted to the social protection authorities; a claim for restoration of housing rights may be submitted to local executive bodies; a claim for the return of confiscated property may be submitted to the body in whose possession such property is held; a claim for the return of state awards and restoration of honorary, military, special or other titles, class ranks, diplomatic ranks and qualification classes may be submitted to the authorities or officials whose competence includes consideration of these matters.
A claim for compensation for pecuniary damage (for payment of unpaid wages, pensions, benefits, allowances and other funds and income; the return of confiscated property or property transferred to state ownership on other grounds; the return of fines paid and other amounts collected in execution of a judgment; and compensation for other expenses incurred) shall, in accordance with Part 3 of Article 40 of the CPC, be submitted to the court that delivered the judgment or issued the resolution terminating the criminal case, or to the court at the person's place of residence, or to the court at the location of the body that issued the resolution terminating the pre-trial investigation or annulling or amending other unlawful decisions. If the criminal case was terminated or the judgment was amended by a higher court, the claim for compensation for harm shall be submitted to the court that delivered the judgment. A claim for compensation for harm on behalf of a minor may be submitted by their legal representative (paragraph 9 of Regulatory Resolution No. 7 of the Supreme Court dated 9 July 1999).
With regard to the procedure for calculating the procedural time limit stipulated in Part 3 of Article 39 of the CPC, it should be borne in mind that when a time limit is calculated in months, it expires on the corresponding date of the final month; if that month does not have the corresponding date, the time limit expires on the last day of that month. If the expiry of the time limit falls on a non-working day (a weekend or public holiday), the first working day following that day shall be deemed the final day of the time limit (Part 4 of Article 48 of the CPC).
The list of interested persons entitled to compensation for harm and, consequently, to restoration of the missed six-month time limit for a valid reason includes: the rehabilitated person and, in the event of their death, their heirs, family members and persons receiving benefits due to the loss of the breadwinner (Part 3 of Article 38 of the CPC); the heirs, relatives or dependants of the deceased person (Part 1 of Article 39 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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
Constitution Law Code Regulatory Act Decree Order Decision Resolution Lawyer Almaty Lawyer Legal services Legal Consultation Civil Criminal Administrative cases and disputes Defence Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Programme Charter Charter Article Commentary Resolution Regulations Protocol Draft Programme Rules
