Compensation for moral damage caused by unlawful conviction
According to paragraph 1 of Article 923 of the Civil Code of the Republic of Kazakhstan, the damage caused to a citizen as a result of an unlawful conviction is fully compensated by the State, regardless of the fault of officials of the bodies of inquiry, preliminary investigation, prosecutor's office and court, in accordance with the procedure established by legislative acts of the Republic of Kazakhstan. I filed a lawsuit with the State Institution "Ministry of Finance of the Republic of Kazakhstan" (hereinafter – the Ministry of Finance) to recover from the state treasury (republican budget) compensation for moral damage in the amount of 10 000 000 tenge caused by illegal actions of the body conducting the criminal process, illegal conviction. The claim was dismissed by the decision of the Saryarkinsky District Court of Astana on June 7, 2017. By the resolution of the Judicial Board for Civil Cases of the Astana City Court dated August 24, 2017, the court's decision remained unchanged. In the petition, the applicant requests to cancel the judicial acts that took place in the case and to make a new decision on the satisfaction of the claim, referring to significant violations of substantive and procedural law. He is motivated by the fact that the court's conclusions that M. is not subject to rehabilitation are not based on the case materials and they were given an incorrect assessment. In addition, the contested judicial acts violate the uniformity of judicial practice and do not meet the objectives of ensuring legality and protecting constitutional human and civil rights and freedoms. In its response to the petition, the Ministry of Finance requests that it be denied, and the contested judicial acts be left unchanged due to their legality and validity. The Judicial Board for Civil Cases of the Supreme Court quashed the judicial acts of the local courts and issued a new decision in the case to satisfy M.'s claim partly on the following grounds. It follows from the case file that by the verdict of the Ekibastuz City Court of Pavlodar region dated December 15, 2016, M. He was found guilty and convicted under Article 108 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), with a fine of 25 monthly calculation indices in the amount of 53,025 tenge.
Compensation for moral damage caused by unlawful conviction
Earlier, the court had chosen a preventive measure against M. in the form of a written undertaking not to leave. By a decision of the judicial board for Criminal Cases of the Pavlodar Regional Court dated February 10, 2017, the verdict of the court of first instance was overturned, and a new verdict was issued in the case declaring M. innocent of committing a criminal offense under Article 108 of the Criminal Code and acquitting him in the absence of a criminal offense event. The local courts, rejecting the claim, proceeded from the fact that the sentence against M. had not entered into legal force and had not been applied for.; No pre-trial investigation of the case was conducted by the criminal prosecution authorities; no measures of restriction of freedom or other coercive nature were applied to the plaintiff. The Board considered the conclusions of the local courts to be erroneous, based on an incorrect definition of the range of circumstances relevant to the proper resolution of the dispute, which did not comply with the applicable norms of substantive and procedural law. According to paragraph 1 of Article 923 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), damage caused to a citizen as a result of unlawful conviction, unlawful prosecution, or unlawful use of a written undertaking as a preventive measure is fully compensated by the State, regardless of the fault of officials of the bodies of inquiry, preliminary investigation, prosecutor's office and court, in accordance with the procedure established by legislative acts. By virtue of part 1 of Article 38 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), damage caused to a person as a result of an unlawful conviction is fully reimbursed from budgetary funds, regardless of the fault of the body conducting the criminal process. In this case, according to the board, M. a claim for compensation for moral damage caused as a result of illegal actions of the body conducting the criminal process was reasonably filed, since the case materials established that a preventive measure was chosen against the plaintiff in the form of a written undertaking not to leave, which was lifted only on February 10, 2017, when the court of appeal ruled an acquittal. In addition, the plaintiff was in the status of a convicted person from the moment of sentencing by the court of first instance on December 15, 2016 to February 10, 2017, when the acquittal was handed down. During this period, the plaintiff's rights were restricted, as a result of which he suffered moral suffering. The illegal conviction caused a feeling of depression, hopelessness, disappointment, humiliation and shame, as well as a negative impact on his business reputation. In view of the above, the plaintiff's arguments about causing him moral harm as a result of these actions of the criminal prosecution authority are justified. However, the local courts did not eliminate the violation of M.'s rights, and an unreasonable conclusion was made that since the verdict did not specify M.'s rehabilitation, accordingly, he was not entitled to compensation for moral damage, whereas the above-mentioned right belongs to the acquitted person by virtue of the provisions of the law – part 1 of Article 37 of the CPC. The court of first instance unreasonably applied paragraph 2 of Article 951 of the Civil Code to disputed legal relations, which provides for compensation for moral damage by the causer in the presence of his guilt. Meanwhile, in this case, subparagraph 2) of paragraph 3 of Article 951 of the Civil Code was subject to application, according to which moral damage is compensated regardless of the fault of the causer if harm is caused to a citizen as a result of his unlawful conviction.
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