Compensation for damage caused by illegal actions in cases of those acquitted in court

 

When considering this category of cases, the following are applicable:

- The Constitution of the Republic of Kazakhstan - the Civil Code of the Republic of Kazakhstan dated 1.07.1999 (Special Part), as amended on 12.01.2007, which entered into force from the date of their publication

- February 3, 2007 (article 923). The Code of Criminal Procedure (Chapter 4) of December 13, 1997, with amendments and additions.

The Civil Procedure Code of July 13, 1999.

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 7 dated July 9, 1999 "On the practice of applying legislation on compensation for damage caused by illegal actions of bodies conducting criminal proceedings" with additions and amendments.

The Regulation on the procedure for compensation of damage caused to a citizen by illegal actions of the bodies of inquiry, preliminary investigation, prosecutor's office and court, approved by Decree of the Presidium of the Supreme Soviet of the USSR dated May 18, 1981. The procedure for applying this Provision is stipulated in paragraph 12 of the above-mentioned resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan No. 7 dated July 9, 1999).

According to paragraph 1 of art. 923 of the Civil Code of the Republic of Kazakhstan, liability for harm caused to a citizen as a result of unlawful conviction, unlawful prosecution, unlawful use of detention as a preventive measure, house arrest, recognizance not to leave, unlawful imposition of administrative penalties in the form of arrest or correctional labor, illegal placement in a psychiatric or other medical institution, is reimbursed by the state. in full, regardless of the guilt of officials of the bodies of inquiry, preliminary investigation, prosecutor's office and court, in accordance with the procedure established by law., established by legislative acts.

Compensation for damage caused by illegal actions of the body conducting criminal proceedings is carried out in accordance with Chapter 4 of the CPC. The amount of compensation for damage is provided for in article 43 of the CPC, according to which property damage to persons entitled to compensation for damage caused as a result of illegal actions of the body conducting the criminal process includes compensation:

-salaries, pensions, allowances, other funds and incomes that have been lost by persons entitled to compensation for harm;

- property unlawfully confiscated or converted into state revenue on the basis of a verdict or other court decision;

-fines levied in pursuance of an unlawful court verdict;

-court costs and other amounts paid by a person in connection with illegal actions;

-the amounts paid by the person for providing legal assistance;

- other expenses incurred by such persons in connection with criminal prosecution.

In particular, persons entitled to compensation for damage caused as a result of illegal actions of the body conducting criminal proceedings are listed in articles 39-40 of the CPC of the Republic of Kazakhstan. These persons may file claims for monetary compensation for moral damage caused in civil proceedings (Part 2 of Article 44 of the CPC).

A claim for compensation for damage must be submitted to the body conducting the criminal process (the court, as well as in pre-trial proceedings in a criminal case to the prosecutor, investigator, body of inquiry, inquirer).

Article 47 of the CPC stipulates that if a claim for rehabilitation or compensation for harm is not satisfied or a person does not agree with the decision, he has the right to apply to the court in civil proceedings.

If such data is not provided when accepting the application, the court must, in terms of material requirements, oblige the applicant to provide such information or demand information about rehabilitation in accordance with the criminal procedure legislation from the body conducting the criminal process and deciding on the rehabilitation of the applicant.

The list of grounds listed in Part 1 of Article 923 of the Civil Code for compensation for damage caused to a citizen is exhaustive. The illegality of the actions of the bodies conducting the criminal process is established by a verdict or a court order or a decision issued by the body of inquiry, preliminary investigation, prosecutor.

In accordance with art . 923 CC damage caused to a citizen as a result of unlawful conviction, unlawful prosecution, unlawful use of detention as a preventive measure, house arrest, recognizance not to leave, unlawful imposition of administrative penalties in the form of arrest or correctional labor, illegal placement in a psychiatric or other medical institution, is fully compensated by the state, regardless of the guilt of officials of the bodies of inquiry, preliminary investigation, prosecutor's office and court, in accordance with the procedure established by legislative acts.

In accordance with part 1 of Article 43 of the CPC, property damage caused to persons specified in part two of Article 40 of the CPC includes compensation.:

1) wages, pensions, allowances, other funds and incomes that they have lost;

2) property unlawfully confiscated or converted into state revenue on the basis of a verdict or other court decision;

3) fines levied in pursuance of an unlawful court verdict; court costs and other amounts paid by a person in connection with illegal actions;

4) the amounts paid by the person for the provision of legal assistance;

5) other expenses incurred as a result of criminal prosecution.

According to part 4 of Article 43 of the CPC, the court that reviewed the case in the first instance determines the amount of damage, requesting, if necessary, a settlement from financial and social protection authorities, after which it issues a resolution on making payments to compensate for this damage, taking into account inflation.

At the same time, the court proceeds from the requirements of Part 2 of Article 43 of the CPC, according to which property damage caused to persons specified in part two of Article 40 of this Code includes compensation for: amounts paid by a person for providing legal assistance.

So, for example, the plaintiff A.B.M., A.K.K. appealed to the Almaty District Court of Astana with a claim to E.A.K. for compensation for damage caused by unlawful prosecution, justifying their claims by the fact that on the basis of a private complaint by E.A.K., accepted for production by the Saryarkinsky District Court No. 2 of Astana A criminal case was initiated under Article 129, Part 3 of the Criminal Code of the Republic of Kazakhstan, defamation, connected with the commission of a serious crime discrediting the honor and dignity, business reputation of a private prosecutor. By the verdict of the Saryarkinsky District Court of Astana dated January 19, 2015, A.K.K. and A.B.M. were found innocent and acquitted due to the absence of corpus delicti in their actions. In this regard, the plaintiffs applied to the court for compensation for damage caused by unlawful criminal prosecution and recovery of the amount of moral damage in the amount of 4,000,000 tenge for both plaintiffs, the amount of material damage in the amount of 894,963 tenge, unpaid to plaintiff A.K.K. in the amount of 894,963 tenge in connection with bringing him to criminal responsibility, and court costs in the amount of 90,000 tenge paid to their representative, a lawyer involved in the criminal trial in Saryarkinsky District Court No. 2.

The court came to the following conclusion. According to Part 1 of Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, civil proceedings are conducted on the basis of competition and equality of the parties. The parties enjoy equal rights and bear equal procedural responsibilities during the process. In the course of civil proceedings, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons.

The court is completely exempt from collecting evidence on its own initiative in order to establish the factual circumstances of the case, however, upon a reasoned request from the party, it assists in obtaining the necessary materials in accordance with the procedure provided for by the CPC. Each party must prove the circumstances to which it refers as the grounds for its claims and objections.

At the hearing, it was established that E.A.K. appealed to the Saryarkinsky District Court No. 2 of Astana with a complaint from a private prosecutor against the actions of A.K.K. and A.B.M. under Part 3 of Article 129 of the Criminal Code of the Republic of Kazakhstan in committing libel, combined with committing a serious crime, discrediting the honor and dignity, business reputation of a private prosecutor. At the same time, pointing out that on September 01, 2014, the blog of the Minister of Finance of the Republic of Kazakhstan received a complaint from the author of "Zhanna" with a request to investigate the corruption violation by an employee of the Customs Control Committee of the Republic of Kazakhstan, E.A.K., indicating the facts of her absenteeism and receiving wages for these days, using her official position when transportation of goods across the border without customs clearance. By the verdict of the court, the defendants A.K.K. and A.B.M. were found not guilty of committing crimes under art. 129 h. 3 of the Criminal Code of the Republic of Kazakhstan, and were acquitted due to the absence of corpus delicti in their actions. In this regard, the plaintiffs applied to the court for compensation for the amount of damage caused by unlawful criminal prosecution, moral damage in the amount of 2,00,000 million for each plaintiff for the moral suffering caused, as well as the amount of material damage in the amount of A.K.K.'s bonus not received by the plaintiff at the end of 2014 in the amount of 894,963 tenge., and the cost of the services of a representative in the criminal process in the amount of 90,000 tenge.

Paragraph 1 of Article 33 of the Constitution of the Republic of Kazakhstan establishes the right of citizens to apply personally, as well as to send individual and collective appeals to state bodies and local governments, which, within their competence, are required to consider these appeals, make decisions on them and give a reasoned response in accordance with the established procedure. In cases where a citizen applies to the aforementioned authorities, including law enforcement agencies, with a statement in which he provides certain information about a crime that has been committed or is being prepared, but according to the results of the audit, this information has not been confirmed, this circumstance cannot serve as a basis for bringing persons to civil liability provided for in art.43 of the Civil Code, since in these cases there is an exercise by citizens of the constitutional right to appeal to state bodies., and not the dissemination of untrue defamatory information.

Such requirements can be satisfied only in cases when, during the consideration of the case by the court, it is established that the appeal to the specified authorities is not justified by anything and is dictated not by the intention to fulfill one's civic duty and protect legally protected interests, but solely by the intention to harm another person, i.e. abuse of the right has taken place.

In this case, as it was established at the court hearing, E.A.K. used her right to apply to the court for protection of her rights, which cannot be limited by anyone, in connection with the appearance of a complaint about her actions on the blog of the Minister of Finance. There is no evidence that E.A.K. filed a statement with the court with the intention to harm another person, in particular A.K.K., was not presented to the court. This statement was E.voy's reaction to the above complaint, written by A.voy B.M.

According to paragraph 5 of the Normative Resolution of the Supreme Court of June 21, 2001 No. 3 "On the application by Courts of legislation on compensation for moral damage,"moral damage is subject to compensation in full by the person who caused it through unlawful culpable (intentionally or negligently) actions or omissions."

951 of the Civil Code, moral harm is a violation, diminution or deprivation of personal non-property benefits and physical rights, including moral or physical suffering (humiliation, irritation, depression, anger, shame, despair, physical pain, inferiority, discomfort, etc.) experienced (endured, experienced) by the victim in as a result of the offense committed against him. Evidence that E.ova A.K. She has committed any offense against the plaintiffs, or an unlawful act or omission, having applied to the court for protection of her rights within the framework of current legislation, has not been presented to the court.

In addition, it was established at the hearing that the plaintiffs, A-sov K.K. and A-rova B.M., also appealed to the same criminal court with a complaint of private prosecution against E-ovoy A.K. under art. 130 of the Criminal Code of the Republic of Kazakhstan, insult. And as the plaintiff, Mrs. B.M., pointed out at the hearing, they exercised their right to apply to the court for protection of their rights. This complaint of the private prosecution was withdrawn by the plaintiffs, while in a statement dated 12.02.2015, plaintiff A-sov K.K. indicated that he had no material and moral claims against her A.K. and would not have further consequences of termination of the criminal case under art. 390 URCS of the Republic of Kazakhstan were explained and understandable to him. The plaintiff, Mrs. B.M., did not deny the existence of such a statement by her husband.

In such circumstances, the court found no legal grounds to satisfy the plaintiffs' application for recovery of the amount of material and moral damage from the defendants, and therefore refused to satisfy the claims of A-ova K.K., A-rova B.M., and A-ovy A.K. for compensation for damage caused by unlawful prosecution.

 

 

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