Compensation for harm caused by illegal actions in cases related to torture
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 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 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 the person in connection with illegal actions; - 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 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.
It should be noted that the issue of compensation for property and moral damage to victims of torture is not clearly reflected in the criminal procedural legislation.
Thus, the Criminal Procedure Code of the Republic of Kazakhstan contains general rules providing for the grounds and conditions for the emergence of the right to compensation for harm and the procedure for its compensation from the national budget. Article 40 of the CPC of the Republic of Kazakhstan establishes a list of persons entitled to compensation for damage caused as a result of illegal actions of the body conducting criminal proceedings. This list does not include persons who have been subjected to torture or other forms of ill-treatment. Also, in the Criminal Procedure Code of the Republic of Kazakhstan, illegal actions of the body conducting the criminal process do not include actions that qualify as torture.
The Resolution of the Plenum 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", which is the current guide for judges, uses general concepts that do not fully correspond to the definition of "torture" in accordance with the Convention.
Given the isolated cases of criminal cases and convictions against law enforcement officials based on complaints of torture and other illegal acts, there is a very limited practice of State compensation for victims of torture.
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