Compensation for moral damage in case of unlawful prosecution, unlawful conviction, unlawful application of a preventive measure

The concept of moral harm should also include the so-called "social losses" caused by criminal prosecution of a person, which can be expressed in diminishing a person's honor, dignity, reputation, changing public opinion, etc.

The legislation establishes that moral damage is compensated, regardless of the fault of the causer, in cases where the harm was caused to a citizen as a result of his unlawful conviction, unlawful prosecution, unlawful use of detention, house arrest or recognizance not to leave, unlawful imposition of administrative penalties in the form of arrest, illegal placement in psychiatric medical institution or other medical institution.

In accordance with paragraph 1 of Article 923 of the Civil Code, damage caused to a citizen as a result of unlawful conviction, unlawful prosecution, unlawful application of a preventive measure, 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 fault of government officials. inquiry, preliminary investigation, prosecutor's office and court, in accordance with the procedure established by legislative acts.

In accordance with paragraph 2 of 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 to compensate for damage caused by illegal actions of bodies conducting criminal proceedings", the illegality of actions of bodies conducting criminal proceedings is established by a verdict or court order or a decision issued by the body of inquiry, preliminary investigation, prosecutor.

In accordance with paragraph 4 of the said Resolution, the full rehabilitation of a person should be understood as the passing of an acquittal verdict against him by a court or the passing by an inquiry body, investigation, prosecutor of a decision to terminate a criminal case in the absence of a crime event, for lack of corpus delicti, or for lack of evidence of a person's participation in the commission of a crime.

In accordance with paragraph 18 of the said Resolution, monetary payments in connection with compensation for damage related to illegal actions of bodies conducting criminal proceedings, regardless of the guilt of these bodies, are carried out at the expense of the Republican budget.

According to the Law "On the Republican Budget, funds are provided as part of the reserve of the Government of the Republic of Kazakhstan to repay the obligations of the Government of the Republic of Kazakhstan, central government agencies, and their departments and territorial divisions on court decisions. The administrator of the budget program of the Government of the Republic of Kazakhstan (from the reserve of the Government of the Republic of Kazakhstan) according to the specifics 010 is the Ministry of Finance of the Republic of Kazakhstan.

By court decision No. 2 On February 11, 2015, Uralsk, left unchanged by the court of appeal, partially recovered compensation for moral damage in the amount of 50,000 tenge from the Ministry of Finance of the Republic of Kazakhstan under budget program 010 "Reserve of the Government of the Republic of Kazakhstan" in favor of Ye-eva K.A. The Court found that in relation to the plaintiff as director of the State Enterprise "City Park of Culture A criminal case was initiated under Part 1 of Article 307 of the Criminal Code of the Republic of Kazakhstan, which was subsequently terminated under Article 37 of Part 1 of paragraph 2 of the CPC for the absence of corpus delicti in his actions. The court motivated its conclusions by the provisions of paragraph 1 of Article 923 of the Civil Code, paragraph 15 of the Regulatory Decree "On the procedure for applying legislation to compensate for damage caused by illegal actions of bodies conducting criminal proceedings." He pointed out that according to the Law "On the Republican Budget", the administrator of this program 010 "Reserve of the Government of the Republic of Kazakhstan", which includes the fulfillment of obligations under court decisions, where compensation for damage is collected directly from the republican budget, is the Ministry of Finance of the Republic of Kazakhstan.

In another case, the decision of the Al-Farabi District Court of Shymkent, upheld by the appellate judicial board, dated June 10, 2015, in favor of N.M.A., the Ministry of Finance of the Republic of Kazakhstan recovered compensation for moral damage in the amount of 200,000 tenge caused as a result of an unlawful conviction. As established, by the verdict of the Al-Farabi District Court of Shymkent, which was upheld by the decision of the appellate judicial board, N.M.A. was convicted under Part 3 of Article 129 of the Criminal Code. By a decision of the Supervisory Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan, judicial acts were annulled and the case against N.nova M.A. was terminated due to the absence of a crime event. The plaintiff was unlawfully brought to criminal responsibility by the court, in the period from 02/23/2011 to 04/24/2012, he was under judicial investigation in a private prosecution case at the request of B-eva A.T., in connection with which, the plaintiff's claims to the Ministry of Finance of the Republic of Kazakhstan for compensation for moral damage caused as a result of an unlawful conviction are justified. As objective data on the degree of moral and physical suffering, the court accepted the fact of the plaintiff's unlawful conviction for a crime classified as moderate to 1 year in prison, the plaintiff's special registration as a convicted person, the partial execution of a sentence in a civil lawsuit, and public coverage of the conviction through the local and national mass media., the vital importance of the good that was the object of the encroachment – freedom, honor and reputation. When determining the amount, the court also took into account the plaintiff's subjective assessment of the severity of the moral harm caused to him, the moral experiences he suffered in the form of humiliation, shame, undermining authority and reputation as an employee of the internal affairs bodies, proceeding from the principles of justice, sufficiency and reasonableness.

Thus, if a conviction has taken place in a private prosecution case and has subsequently been overturned, then the obligation to pay compensation lies with the State.

 

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