Commentary on Article 41. Elimination of the Consequences of Moral Harm of the Criminal Procedure Code of the Republic of Kazakhstan
1. The body conducting the criminal proceedings that has adopted a decision to rehabilitate a person shall be obliged to offer that person an official apology for the harm caused.
2. Claims for compensation in monetary terms for the moral harm caused shall be filed in accordance with the procedure for civil proceedings.
3. If a person has been subjected to unlawful criminal prosecution, and information concerning the criminal prosecution, detention, remand in custody, temporary suspension from office, compulsory placement in a medical organization, conviction and other measures taken against that person, subsequently recognized as unlawful, has been published in the press, broadcast on radio or television, or disseminated through other mass media, then, at the request of that person or, in the event of their death, at the request of their relatives or the body conducting the criminal proceedings that adopted the decision to restore their rights, the relevant mass media shall be obliged to publish or broadcast an appropriate notice to that effect within one month.
4. At the request of the persons specified in Parts Two and Three of Article 38 of this Code, the body conducting the criminal proceedings shall be obliged, within fourteen days, to send written notification of the annulment of unlawful decisions to their place of work, study and residence.
Regardless of the restoration of property-related harm and the protection of other rights of the rehabilitated person, the body conducting the criminal proceedings shall be obliged to offer that person an official apology, observing all the formalities of this procedure. The form of the apology shall be written. By virtue of its official nature, — the Supreme Court explained, — an official apology for the harm caused must be expressed in writing, on a special or official letterhead, and signed by the head of the body that adopted the decision on rehabilitation. It must refer to the specific decision by which the person was rehabilitated, indicate the unlawfulness of the criminal prosecution conducted, and contain words expressing an official apology for the harm caused (Paragraph 7 of Regulatory Resolution No. 7 of the Supreme Court dated July 9, 1999).
A citizen against whom information damaging their honor, dignity and business reputation has been disseminated shall have the right, alongside the refutation of such information, to demand compensation for losses and moral harm caused by its dissemination (Paragraph 6 of Article 143 of the Civil Code). In this regard, when a claim for the elimination of the consequences of moral harm is granted, the operative part of the ruling, in accordance with Part 3 of Article 41 of the Criminal Procedure Code, must specify what particular actions are to be taken and by whom for the purpose of refuting information previously disseminated about that person in connection with unlawful criminal prosecution. Where necessary, the ruling may set out the text of the notice to be published in the press or broadcast on radio, television and through other mass media (Paragraph 16 of Regulatory Resolution No. 7 of the Supreme Court dated July 9, 1999). A ruling on the elimination of the consequences of moral harm may be submitted by the person to whom they relate or, in the event of that person's death, by their relatives or by the body conducting the criminal proceedings that adopted the decision to restore the relevant rights. The necessary notice refuting previous inaccurate and negative publications must be made by the mass media within one month from the date of receipt of the request to that effect (Part 3 of Article 41 of the Criminal Procedure Code, Article 19 of the Law dated July 23, 1999, “On Mass Media”).
3. A form of eliminating the consequences of moral harm inflicted on a rehabilitated person is compensation for such harm in monetary terms as well, in accordance with the procedure established by the Criminal Procedure Code, the Civil Code and the Civil Procedure Code; that is, moral harm is also subject to compensation. Moral harm should be understood as the mental or physical suffering experienced by a citizen as a result of the unlawful violation, diminution or deprivation of their personal non-property benefits and rights. Mental suffering (a person's emotional and volitional experiences) should be understood as the feelings of humiliation, irritation, depression, anger, shame, despair, inferiority, a state of discomfort, etc., experienced by that person. Such feelings may be caused, for example, by an unlawful encroachment on the life and health of either the victim themselves or their close relatives or spouse; unlawful deprivation or restriction of liberty or the right to freedom of movement; causing harm to health, including scars and scar marks that disfigure exposed parts of a person's body; disclosure of family, personal or medical secrets; violation of the confidentiality of correspondence, telephone or telegraph communications; dissemination of information that does not correspond to reality and damages a citizen's honor and dignity; violation of the right to a name or image; violation of their copyright and related rights, etc. Physical suffering should be understood as the physical pain experienced by a citizen in connection with the commission of violence or the infliction of harm to health (Paragraph 3 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”).
4. Moral harm shall be compensated regardless of the fault of the person causing the harm in cases where: the harm has been caused to the life and health of a citizen by a source of increased danger; the harm has been caused to a citizen as a result of their unlawful conviction, unlawful prosecution, unlawful application of remand in custody, house arrest or a written undertaking not to leave the place of residence as a preventive measure, unlawful imposition of an administrative penalty in the form of arrest, or unlawful placement in a psychiatric medical institution or another medical institution; the harm has been caused by the dissemination of information damaging a person's honor, dignity and business reputation; or in other cases provided for by legislative acts (Paragraph 3 of Article 951 of the Civil Code). In all other cases, — the Supreme Court explains in Regulatory Resolution No. 7 dated November 27, 2015, “On the Application by Courts of Legislation on Compensation for Moral Harm”, — compensation for moral harm shall be provided upon establishing the fault of the person causing the harm. In the statement of claim, the plaintiff shall indicate evidence confirming the fact of violation of their specific personal non-property rights and benefits, as well as the method of their protection. When claiming compensation for moral harm in monetary terms, the plaintiff shall indicate 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 brought against the body conducting the criminal proceedings shall be considered in accordance with the procedure for civil proceedings (Paragraph 5).
When determining the amount of moral harm, which is compensated exclusively in monetary form, consideration shall be given both to the victim's subjective assessment of the severity of the mental damage caused to them and to objective data indicating the degree of the victim's mental and physical suffering: the vital importance of the benefit that was the object of the encroachment (life, health, honor, dignity, liberty, inviolability of the home, etc.); the severity of the consequences of the offense (the killing of close relatives, bodily injuries resulting in disability, deprivation of liberty, loss of employment or housing, etc.); the nature and scope of dissemination of false information damaging a person's reputation; the victim's living conditions (employment-related, family, domestic and financial circumstances, state of health, age, etc.), and other circumstances worthy of consideration. Moral harm shall be compensated regardless of the property-related harm subject to compensation (Article 952 of the Civil Code).
In this regard, the Supreme Court's comments concerning the determination of the amount of moral harm in monetary form are useful and may be summarized in the following recommendations. The amount of compensation shall be determined by the court on the basis of the criteria of reasonableness and fairness. The amount of compensation for moral harm should be considered reasonable and fair if, in determining it, the circumstances relating to the violation of the citizen's personal non-property rights have been taken into account. The amount of monetary compensation serves as a measure of liability for the unlawful act committed and its consequences for the person causing the harm. The amount of compensation for moral harm awarded by the court of first instance may be reviewed by higher judicial instances if it does not comply with the above requirements. When determining the amount of compensation for moral harm, the court shall also be entitled to take into account other circumstances, in addition to those specified in Article 952 of the Civil Code, confirmed by the case materials, in particular, the family and financial circumstances of the person bearing responsibility for the moral harm caused to the victim (Paragraphs 7–8 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”).
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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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