Judicial practice on compensation for moral damage caused by unlawful conviction

In a civil case on the claim of A-Mr. D.D., Mr. G.A., B-Mr. B. S., Sh-aea K.A. to Mr. V.V. (for recovery of moral damage. The plaintiffs justified their claims by the fact that by the verdict of the Sandyktau district Court of the Akmola region dated February 14, 2014, A-in D.D., Mr. G.A., Sh-aev K.A., B-in B.S. were found guilty of committing a crime under art. 129 Part 2 of the Criminal Code of the Republic of Kazakhstan in the order of private prosecution on the complaint Yu-na V.V.

By the verdict of the Court of Appeal for Criminal Cases of the Akmola Regional Court dated April 24, 2014, the verdict of the Sandyktau District Court of the Akmola region dated February 14, 2014 was overturned and the above-mentioned persons were found innocent and acquitted due to the absence of corpus delicti in their actions.

On the basis of Articles 39-42 of the Criminal Procedure Code of the Russian Federation, the right to compensation for damage caused as a result of unlawful criminal prosecution was recognized for those who were acquitted.

During the trial in the Sandyktau District Court, when considering the complaint of Yurin V.V., lawyer A.A. was involved in a private prosecution. According to the agreement on legal assistance dated December 24, 2013, A.D.D. paid 200,000 tenge for providing legal assistance to the plaintiffs.

In the court of appeal, lawyer B.A.B. was involved, to whom A.D.D. paid 200,000 tenge for providing legal assistance. Moral damage was inflicted on the plaintiffs during the trials and the illegal sentencing. Thus, as a result of illegal actions on the part of the defendant, Mr. G.A. was admitted to the hospital and stayed there from January 27, 2014 to February 6, 2014.

Other plaintiffs were forced to appear at court sessions on several occasions, and in their places of residence, fellow villagers began to treat them with distrust and apprehension, and no one had any desire to contact the convicts. Due to the sentencing, the family situation worsened, and the plaintiffs felt oppressed, humiliated, and depressed. Thus, the plaintiffs consider that the amount of compensation for moral damage in the amount of 500,000 tenge each is subject to compensation, and Mr. G.A. the amount of compensation for moral damage in the amount of 1,000,000 tenge. By a court ruling dated July 7, 2015, the Ministry of Finance of the Republic of Kazakhstan was involved as a defendant at the request of the plaintiffs.

During the consideration of the case, the plaintiffs clarified the claims, asked to recover from the Ministry of Finance of the Republic of Kazakhstan moral damage in the amount of 500,000 tenge in favor of each plaintiff A-on D.D., Sh-eva K.A., B-on B.S., in favor of Mr. G.A. the amount of moral damage in the amount of 1,000,000 tenge. They asked to collect from the Ministry of Finance of the Republic of Kazakhstan, Mr. V.V. in solidarity in favor of Mr. D.D. the court costs of paying for the services of a lawyer in the amount of 400,000 tenge.

The Court came to the following conclusion:

According to paragraph 2 of Part 1 of Article 37 of the CPC of the Republic of Kazakhstan, the persons specified in the first part of Article 37 of this Code, that is, the person acquitted by the court, against whom a court order has been issued, the body of criminal prosecution to terminate the criminal case, have the right to compensation for damage caused as a result of illegal actions of the body conducting the criminal process. on the grounds provided for in paragraph 2 of the first part of Article 35 of this Code, in the absence of elements of a criminal offense in the act.

It follows from the case file that the verdict of the Court of Appeal for Criminal Cases of the Akmola Regional Court of April 24, 2014 overturned the verdict of the Sandyktau District Court of the Akmola region of February 14, 2014, which convicted the plaintiffs under Part 2 of Article 129 of the Criminal Code of the Republic of Kazakhstan, the plaintiffs were found innocent and acquitted for the absence of corpus delicti in their actions and for The plaintiffs recognized the right to compensation for damage caused as a result of unlawful prosecution.

In accordance with paragraph 4 of Part 1 of Article 40 of the CPC of the Republic of Kazakhstan, property damage caused to persons specified in the second part of Article 38 of this Code includes compensation for amounts paid by a person for providing legal assistance.

The court found that according to the agreement on the provision of legal assistance dated December 24, 2013, the lawyer A.A. provided legal assistance to the plaintiffs, for the services rendered, A.D.D. paid the lawyer an amount of 200,000 tenge for participation in court proceedings, and also provided services to the plaintiffs in the appellate judicial board on the basis of a warrant. lawyer B-ov A.B. for what A-n D.D. He made a payment in the amount of 200,000 tenge, the fact of accepting funds in the total amount of 400,000 tenge is confirmed by receipts issued by the Bar Association of the Akmola region for 9 dated December 24, 2013, No. 50 dated March 4, 2014.

42 of the CPC RK, if the six-month deadline for filing a claim for damages in accordance with the procedure provided for in this chapter is missed, the person has the right to apply to the court in civil proceedings. That is, a person is not limited to a six-month period for applying to a court who has passed a sentence, has the right to apply to a court in civil proceedings after the expiration of a six-month period.

In this regard, the court considers the defendants' arguments in the specified part that the plaintiffs missed the six-month deadline for applying and the plaintiffs are limited to applying to the court with these requirements only in criminal proceedings to be unsound and subject to rejection.

In accordance with paragraph 1 of art. 923 of the Civil Code of the Republic of Kazakhstan, 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 the Law of the Republic of Kazakhstan "On the Republican Budget" for 2013-2015, the administrator of the budget program 010 "Reserve of the Government of the Republic of Kazakhstan" is the Ministry of Finance of the Republic of Kazakhstan.

Consequently, Mr. D.D.'s claim against the defendant, represented by the Ministry of Finance of the Republic of Kazakhstan, for the recovery of costs for the services of a lawyer in the amount of 400,000 tenge, is justified and must be satisfied in full.

The arguments of the complaint about the unjustified imposition of liability for damage compensation on the Ministry of Finance of the Republic of Kazakhstan and the need to impose liability on the mediator of harm are untenable, with reference to the norms of paragraph 3 of Article 922, paragraphs 2, 3 of Article 923 of the Civil Code of the Republic of Kazakhstan.

Since, in accordance with these norms, at the expense of the person responsible for causing harm, the damage caused to a citizen or a legal entity as a result of illegal actions (inaction) of officials of state bodies in the field of administrative management or other illegal activities of bodies of inquiry, preliminary investigation, prosecutor's office, judges in the administration of justice is compensated.

The claims of Mr. D.D. for the recovery of expenses for the services of a lawyer were filed in accordance with Part 1 of Article 923 of the Civil Code of the Republic of Kazakhstan, in connection with causing harm to the plaintiff as a result of his unlawful conviction, unlawful prosecution, which is fully reimbursed by the state, regardless of the guilt of officials of the bodies of inquiry, preliminary investigation, the Prosecutor's Office and the court, in accordance with the procedure established by legislative acts.

Regarding the plaintiffs' claims for compensation for moral damage, the court concluded that these claims were unfounded on the following grounds. As established by the verdict of the Court of Appeal for Criminal Cases of the Akmola Regional Court of April 24, 2014, which entered into force, the private prosecution of Yu.V.V. did not have the character of abuse of law on his part, it was caused by the need to protect his rights and legally protected interests, and not the intention to cause moral harm to the plaintiffs.

This is evidenced by the circumstances established by the verdict that entered into force, from which it follows that there was a conflict between Yu.v.V., Director of PKF N-oe LLP, and the plaintiffs regarding the fact that each plaintiff expressed his claims about their problems, such as non-payment of dividends, refusal to issue bread and other issues that were not resolved at that time. The existence of what happened between the parties to the conflict is not denied by anyone, but its incorrect legal assessment by the private prosecutor and the court of first instance as a crime under art. 129 h. 2 of the Criminal Code of the Republic of Kazakhstan (as amended in 2014), contains no signs of abuse of law.

In accordance with Part 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, on the part of the private prosecutor, there was an exercise of his constitutional right to appeal to the court to protect his violated rights, as Mr. V.V. believed, the opposite has not been proven. Moreover, the verdict of the Court of Appeal for criminal Cases of the Akmola Regional Court of April 24, 2014 overturned the verdict of the Sandyktau district Court of the Akmola region, according to which the plaintiffs were found guilty of committing a crime, that is, their violated rights were restored.

Consequently, the plaintiffs did not suffer any consequences from unlawful criminal prosecution in the case of a private prosecution, since it was established that the plaintiffs did not work anywhere during the consideration of the criminal case in the courts of the first and appellate instance, and their property rights were not violated by unlawful prosecution, which their representative did not deny.

This is evidenced by the circumstances established by the verdict that entered into force, from which it follows that there was a conflict between Yu.v.V., Director of PKF N-oe LLP, and the plaintiffs regarding the fact that each plaintiff expressed his claims about their problems, such as non-payment of dividends, refusal to issue bread and other issues that were not resolved at that time. The existence of what happened between the parties to the conflict is not denied by anyone, but its incorrect legal assessment by the private prosecutor and the court of first instance as a crime under art. 129 h. 2 of the Criminal Code of the Republic of Kazakhstan (as amended in 2014), contains no signs of abuse of law.

In accordance with Part 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, on the part of the private prosecutor, there was an exercise of his constitutional right to appeal to the court to protect his violated rights, as Mr. V.V. believed, the opposite has not been proven. Moreover, the verdict of the Court of Appeal for criminal Cases of the Akmola Regional Court of April 24, 2014 overturned the verdict of the Sandyktau district Court of the Akmola region, according to which the plaintiffs were found guilty of committing a crime, that is, their violated rights were restored.

Consequently, the plaintiffs did not suffer any consequences from unlawful criminal prosecution in the case of a private prosecution, since it was established that the plaintiffs did not work anywhere during the consideration of the criminal case in the courts of the first and appellate instance, and their property rights were not violated by unlawful prosecution, which their representative did not deny.

The court found the argument of Mr. G.A. that as a result of illegal actions on the part of Yurin V.V., she was admitted to the hospital to be unfounded, since the doctor interviewed in the case, Shmal I.R., explained that Mr. G.A. was born in 1948, is registered in the Central Hospital of the Sandyktau district with a chronic illness. Over the course of twenty years, the deterioration of his health could have been caused by other factors unrelated to filing a complaint with the court, due to his advanced age.

Under these circumstances, the court recovered from the administrator of the 010 program "Reserve of the Government of the Republic of Kazakhstan" the Ministry of Finance of the Republic of Kazakhstan in favor of A.D.D. the amount of material damage in the amount of 400,000 tenge, court costs for the payment of state duty in the amount of 4,000 tenge, representative expenses in the amount of 40,000 tenge. The plaintiffs' claims for moral damages were denied.

 

 

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