Illegal criminal prosecution | Compensation for material damage | Recovery of moral damage | Compensation of court costs

The judicial board for civil cases of the Kostanay Regional Court, consisting of: presiding judge Kaikenov S.S., judges Slobodyanik E.N., Tataev M.E., representative of the plaintiff – J.M.R.: Nigmetov S.D., representative of the defendant – T.K.N.: M.K.Z., having considered in the premises of the Kostanay regional Court in open court through the WhatsApp mobile application, a civil case on the claim of J.M.R. (hereinafter J.M.R.) to T.K.N. (hereinafter referred to as K.N.) on compensation for material damage caused by unlawful prosecution, recovery of compensation for moral damage and court costs, received on the plaintiff's appeal against the decision of the Zhitikarinsky District Court of Kostanay region dated June 14, 2021. The plaintiff, having filed a statement of claim against the defendant, asked the court to recover from T.K.N. in favor of J.M.R. material damage caused in the amount of 150,000 tenge, compensation for moral damage in the amount of 500,000 tenge, court costs incurred: payment of the state fee of 2.959 tenge, postal services in the amount of 580 tenge, payment for the assistance of a representative in the amount of 65,000 tenge. The plaintiff motivated the claims by the fact that by the verdict of the Zhitikarinsky District Court of Kostanay region dated March 02, 2021, J.M.R. was found innocent of committing a crime under Article 131, part 2 of the Criminal Code of the Republic of Kazakhstan, and acquitted due to the absence of corpus delicti in her actions. In connection with the defendant's filing of a private prosecution complaint, she had to apply for qualified legal assistance to protect her interests, the costs of which amounted to 150,000 tenge, which is confirmed by the contract and payment receipts. In addition, as a result of the trial initiated by the defendant, she was in the status of a "defendant", in connection with which she suffered moral suffering, experienced discomfort and a sense of shame in front of her family and friends, as a result of which her sleep and appetite were disturbed, irritability appeared.

 

In this regard, he estimates moral damage in the amount of 500,000 tenge. The defendant T.K.N. abused her right by making a deliberately unfounded complaint as a private prosecution, as a person with a law degree. She hid additional evidence from the court during the consideration of the criminal case, did not provide the audio recording in full, and provoked J.M.R. herself in order to go to court on a far-fetched matter. The defendant T.K.N. Both her representative and the court partially acknowledged the claims, and explained that they did not agree with the amount of expenses incurred by the representative in court, and considered it excessive. We do not agree with the plaintiff's claim to recover compensation for moral damage, because we believe that the plaintiff did not provide the court with evidence of causing her such harm. The court's verdict indicated and was not disputed by J.M.R. herself that she had used obscene language, which indicates that J.M.R. herself had failed to comply with moral and ethical standards, and such behavior became the reason for T.K.N.'s appeal to the court. By the decision of the Zhitikarinsky District Court of Kostanay region dated June 14, 2021, the satisfaction of the claims of J.M.R. to T.K.N. for compensation for material damage caused by unlawful prosecution and compensation for moral damage was denied. Disagreeing with the decision of the court of first instance, the defendant filed an appeal, which asked the court to cancel the decision, to make a new decision on the satisfaction of the claims, pointing, in her opinion, to the incorrect definition and clarification of the range of circumstances relevant to the case, violation of substantive law. The arguments of the appeal were upheld in the court of appeal. The representative of the defendant, objecting to the arguments of the appeal, considers the decision of the court of first instance to be lawful and justified, and requests that it remain unchanged. Having studied the materials of the present civil case and the arguments of the appeal, having heard the parties, the board finds the decision of the court of first instance to be amended on the following grounds. The grounds for revoking or changing the decision of the court of first instance are provided for in Article 427 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter CPC). Such violations were established by the court of appeal. The Board found that by the verdict of the Zhitikarinsky district Court of Kostanay region dated March 02, 2021, J.M.R. She was found innocent of committing a crime under article 131, part 2 of the Criminal Code of the Republic of Kazakhstan, and acquitted due to the absence of corpus delicti in her actions. This court verdict recognized J.M.R.'s right to compensation for the unlawful bringing of her to criminal responsibility. According to paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 10 dated June 29, 2018 "On recovery of procedural costs in criminal cases" in cases of private prosecution, if the defendant is acquitted, the court has the right to recover the procedural costs in whole or in part from the person on whose complaint proceedings were initiated. This norm is fixed in part 9 of Article 178 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter CPC). According to part 3 of Article 39 of the CPC, claims for damages may be filed within six months from the date of receipt of a notice explaining the procedure for restoring rights. In accordance with Article 42 of the CPC, if the six-month deadline for filing a claim for damages in the manner prescribed by Chapter 4 of the CPC is missed, the person has the right to apply to the court in civil proceedings, It is established that at the time of consideration of the present case in the court of appeal, the six-month period for filing a claim for damages in the manner prescribed by Chapter 4 CPC, omitted by the plaintiff in the case. By virtue of the requirements of paragraph 2 of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to judicial protection of their rights and freedoms. In this case, the court of first instance, in refusing to satisfy the plaintiff's claims, pointed to the plaintiff's right to recover the procedural costs of the dispute in criminal proceedings. At the same time, the legislation of our country guarantees the plaintiff the protection of violated rights also in civil proceedings. The plaintiff's right to apply to the court in criminal or civil proceedings for protection of his violated rights on the subject of the dispute should not be imposed on the plaintiff by the court. By virtue of the requirements of paragraph 1 of Article 917 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code of the Republic of Kazakhstan), damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full.

The court of Appeal found that under the contract for the provision of legal assistance dated January 30, 2021, lawyer Nigmetov S.D. provided legal assistance to the plaintiff in the case of J.M.R. For the refused services of a representative in court, the plaintiff paid the lawyer money in the amount of 150,000 tenge, which is confirmed by receipts No.30-01-01 dated January 30, 2021, No.01-03-01 dated March 01, 2021. In such circumstances, the court of first instance unlawfully refused to satisfy the plaintiff's claims in this part of the claims. In this regard, the court of appeal collects property damage in the amount of 150,000 tenge from the defendant in favor of the plaintiff. According to paragraph 16 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the application by courts of legislation on compensation for moral damage", it was explained to the courts that in cases of private prosecution, the acquittal in itself cannot serve as a basis for imposing on the private prosecutor the obligation to compensate the acquitted person for moral damage, since in In this case, there is 4 implementation of the constitutional right to appeal to the authorities responsible for the consideration of these complaints. The claim of an acquitted person in a private prosecution case to recover compensation for moral damage can be satisfied only if the private complaint had no legal basis and the appeal to the court was aimed solely at harming another person (abuse of law). In this case, the plaintiff must prove the fact of abuse of law by the prosecutor. From the Verdict of the Zhitikarinsky district Court of Kostanay region dated March 02, 2021, it follows that the private prosecutor was K.N., J.M.R. She was accused of the fact that on November 26, 2020, at one o'clock in the morning, while in apartment No. 107 of house No.. v.. In a residential area in the city of Gitikara, publicly on Instagram, as well as during a telephone conversation with T.L.P.'s mother, she used obscene language, insulted T.K.N., humiliating her honor and dignity in an indecent manner. In support of the arguments of the complaint of T.K.N., screenshots and an audio recording are presented with the words that the defendant said to her, insulting her. The court verdict established that the analysis of screenshots and recordings allowed the court to conclude that some of the words of J.M.R., although expressed in an indecent form, were not aimed at humiliating the honor and dignity of T.K.N., as they were used during correspondence and conversation, and not addressed to the victim herself. According to the screenshots provided by the private prosecutor himself, the first obscenity was written by T.K.N. herself, the court did not establish the source of the recording. In addition, there is only one voice on the recording, there is no voice of the second subscriber. The court concluded that only part of the voice message was submitted to the court by the private prosecutor. The disc with the recording of the conversation presented by T.K.N. was declared inadmissible as evidence by the court. The defendant, Zh.M.R., explained in court that the mother of the private prosecutor, T.L.P., called her first and used obscene language, which T.L.P. deleted, which provoked her behavior. Thus, reliable evidence of J.M.R.'s guilt in deliberate insult aimed at humiliating the personality of T.K.N. has not been submitted to the court. By virtue of the requirements of paragraph 3 of Article 76 of the CPC, a court verdict that has entered into force in a criminal case, which recognizes the right to satisfy the claim, is mandatory for the court considering the case on the civil consequences of the acts of the person against whom the court verdict took place. A court verdict that has entered into legal force is binding on the court considering such a civil case, also on the issues of whether these acts took place and whether they were committed by this person, as well as on other circumstances established by the verdict and their legal assessment. According to paragraph 9 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the application by courts of legislation on compensation for moral damage", the obligation to compensate moral damage in accordance with paragraph 1 of Article 917 and paragraph 2 of Article 951 of the Civil Code arises if there are the following grounds: - commission of an offense (tort) directly against an individual encroaching on the personal non - property rights and benefits of this person protected by law; - the causal relationship between the offense and the harm caused to the victim and the violation of personal non-property rights belonging to him, resulting in moral or physical suffering in the event of his death, violation of the personal non-property rights of his close relatives; - the guilt of the causer, except in cases provided for by law for compensation of personal non-property damage without fault. The absence of any of the above-mentioned grounds precludes the possibility of protecting personal non-property benefits and rights, since they are assumed not to be violated. In such circumstances, the court of first instance reasonably refused to satisfy the claim for recovery of moral damage. By virtue of the requirements of paragraph 1 of Article 109 of the CPC, the court awards to the party in whose favor the decision was made, on the other hand, all court costs incurred in the case. If the claim is partially satisfied, the costs are awarded to the plaintiff in proportion to the amount of the claims satisfied by the court, and to the defendant in proportion to the part of the claims denied to the plaintiff. By virtue of the requirements of subitems 1,7 of paragraph 1 of Article 610 of the Tax Code, from statements of claim filed with the court, statements of special claim proceedings, statements (complaints) in cases of special proceedings, applications for a court order, applications for the issuance of a duplicate writ of execution, applications for the issuance of writ of execution for the enforcement of decisions of arbitration and foreign courts, The state fee is charged in the following amounts for applications for the reissue of copies of judicial acts, writ of execution and other documents: - unless otherwise established by this paragraph, from property claims: for individuals – 1 percent of the amount of the claim; for legal entities – 3 percent of the amount of the claim. - from statements of claim for the amendment or termination of the lease agreement, for the extension of the inheritance period, for the release of property from seizure and from other statements of claim of a non–property nature or not subject to assessment - 0.5 MCI. By virtue of the requirements of paragraph 1 of Article 113 of the CPC, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party. For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim. According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices. In connection with the above, the judicial board considers it necessary to recover from the defendant in favor of the plaintiff the incurred costs of paying the 1,500 tenge state fee, postal services in the amount of 580 tenge, and paying for the assistance of a representative in the amount of 15,000 tenge.

 

The court of appeal considers the arguments of the filed appeal to be justified in part. Guided by subparagraph 2 of Article 424, Articles 425-427, 434-437 of the CPC, the Court of Appeal, Paragraph : The decision of the Zhitikarinsky District Court of Kostanay region dated June 14, 2021, in this civil case, to amend, regarding the refusal of J.M.R. to satisfy the claim against T.K.N. to cancel the decision on the recovery of material damage in the amount of 150,000 tenge, to make a new decision in this part. To recover from T.K.N. in favor of J.M.R. material damage caused in the amount of 150,000 (one hundred and fifty thousand) tenge, court costs incurred: 1,500 (one thousand five hundred) tenge for state duty, 580 (five hundred and eighty) tenge for postal services, 15,000 (fifteen thousand) tenge for representative assistance.

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