Compensation for damage caused by illegal actions in rehabilitation cases

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 on the date of their publication on 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 execution of an illegal 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.

The list of grounds listed in Part 1 of Article 923 of the Civil Code for compensation of 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.

The procedural procedure for rehabilitation is as follows:

a) in the acquittal of the court or in the decision to terminate the criminal case on rehabilitative grounds; it must be stated that the accused has the right to rehabilitation;

b) at the same time, an official notification is sent to the rehabilitated person explaining the procedure for compensation for harm (the notification is sent by the body that made the decision on rehabilitation - the inquirer, investigator, prosecutor, court);

c) during the limitation period, a person who has received a copy of an acquittal or other rehabilitating decision, as well as a notice, has the right to apply to the body that issued the rehabilitating decision with a claim for compensation for property damage caused.;

d) within one month after receiving the above-mentioned claim, the body that made the decision on rehabilitation must determine the amount of damage and issue a resolution on making payments in compensation for this damage. At the same time, all social security, financial, housing and other authorities are indicated, which are obliged to compensate for all types of damage caused.;

e) if the decision on rehabilitation is made by a higher court upon termination of the case, all materials are sent to the court that issued the verdict, where the necessary calculations are made, indicated in the decision of this court on the payment. In this case, the decision to make payments is made in the court that issued the illegal and unjustified verdict, which was then overturned by a higher court. In order to avoid bias, calculations on payments should be entrusted to the wrong judge who issued an illegal and unjustified sentence.;

f) if the decision on rehabilitation is made by the inquirer, investigator or prosecutor, then, having made all the necessary calculations, they send their decision and calculated data to the judge for making a final decision on rehabilitation. Thus, the CPC established only a judicial procedure for the final decision on rehabilitation.;

g) the judge's decision on rehabilitation is made as part of the procedure and may be appealed to the court.;

h) having received a judge's decision on rehabilitation, the person applies to financial, housing and other authorities with a claim for compensation for harm. The judge's decision on rehabilitation is mandatory for these bodies. In cases of non-compliance with this resolution, the rehabilitated person has the right to apply to the court. A judge's decision on rehabilitation is also mandatory in cases where, on the basis of an unlawful and unfounded conviction, the convicted person has been deprived of special, military and honorary titles, class ranks and state awards.

 

 

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