Moral harm, the definition of moral harm, taking into account the degree of moral and physical suffering and their consequences for the victim

By the verdict of the District Court No. 2 of the Almaty district of Astana dated November 1, 2018: K., who had no previous criminal record, was sentenced under paragraph 1) of part 2 of Article 306 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 2 years of restriction of liberty, with deprivation of the right to organize paintball games among minors for a period of 2 years, with by establishing probation control for 2 years. In accordance with part 2 of Article 44 of the Criminal Code, K. is charged with the obligation not to change his permanent place of residence or work without notifying a specialized government agency.; do not visit recreational places (cafes, restaurants, bars, clubs); in your free time, do not leave your permanent place of residence after 23.00 hours until 06.00 a.m. local time; do not travel to other areas without the permission of a specialized government agency. The civil claim of the representative of the victim B. was partially satisfied. 1,000,000 tenge was collected from K. in favor of B. as compensation for moral damage, as well as a state fee in the amount of 1,202 tenge to the state income. Regarding the claims for compensation of material damage for accommodation and travel, it was decided to recognize the civil plaintiff B.'s right to satisfy the civil claim and refer the issue of its size to the court for consideration in civil proceedings. Procedural costs in the amount of 118,714 tenge were collected from K. to the state revenue. By a court verdict, K. was found guilty of providing services that do not meet the requirements for the safety of life and health of consumers, in relation to services intended for minors, which negligently caused harm to human health.

By the resolution of the Judicial Board for Criminal Cases of the Astana City Court dated December 11, 2018, the verdict of the court remained unchanged. In the petition, the legal representative of the victim B., without disputing the evidence of guilt and the qualification of the actions of the convicted K., indicates his disagreement with judicial acts regarding a civil claim for compensation for moral damage in the amount of 1,000,000 tenge. Indicates that they were sued for moral damages in the amount of 5,000,000 tenge, because as a result of K.'s criminal actions. His son A., born on September 23, 2005, suffered an eye injury and underwent surgery to remove the lens of his eye and replace it with an artificial one. According to the conclusion of the forensic medical examination, serious harm was caused to the son's health, which caused the organ to lose its functions with a decrease in visual acuity to 0.04. The child has permanently lost the natural function of the eye to see objects up close, there is a strain on one healthy eye, which has led to a deterioration in the vision of the healthy eye. He draws attention to the fact that the problem will remain with his son for the rest of his life, will impose restrictions on many things - on his choice of profession, playing sports, he is now forced to constantly be treated by ophthalmologists, monitor the condition of the operated eye and the installed lens. Doctors have recommended another complicated operation. He, as a parent, and his son are in a state of constant stress, depression, discomfort, despair, disability and depression, as a healthy child became disabled at a young age. In this regard, taking into account the degree of moral and physical suffering, the vital importance of the benefit, the severity of the consequences, considers it proportionate to recover moral damage in the amount of 10 000 000 tenge. The guilt of the convicted K. the alleged act was proved by the totality of evidence collected in the case, comprehensively, fully and objectively examined at the court session and properly evaluated. As established by the case materials, the court, based on the examined set of evidence: the testimony of the convicted K., the testimony of the minor victim A., his legal representatives B., G., witnesses J., P., the testimony of minor witnesses M., S., the expert opinion and other evidence correctly established the factual circumstances of the case, according to which K., being an individual entrepreneur, provided services intended for minors that do not meet safety requirements. The condemned K. He did not comply with the requirements for compliance with security measures, and by verbal agreement, he hired D. as an instructor at the MacLeod paintball club in the Asia City Shopping Center at 27/3 Abylaikhan Ave., Astana, with whom he did not instruct on security measures for the provision of services at the paintball club, as a result what happened to the minor victim A. when playing in this club, serious harm was caused to his health by shooting a paintball marker into the eye area. As follows from the conclusion of the forensic medical examination, A., born on September 23, 2005, suffered serious injury to his health (severe contusion of the left eyeball, traumatic erosion of the cornea, post-traumatic uveitis, post-traumatic cataract, which caused a decrease in vision to 0.04), which caused the organ to lose its functions with a decrease in visual acuity to 0.04. in the presence of established factual circumstances, the court made the correct conclusion about the proven guilt of convicted K. and the qualification of what he had done under paragraph 1) of part 2 of Article 306 of the Criminal Code, as well as regarding the imposition of a penalty. At the same time, the arguments presented in the petition by the representative of the minor victim about the need to increase the amount recovered by the court in compensation for moral damage deserve attention.

In accordance with paragraph 6) of part 1 of Article 485 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are incorrect resolution of a civil claim. Thus, the legal representative of the minor victim B. filed a civil lawsuit to recover from the convicted K. the amount of 5,000,000 tenge in compensation for moral damage, the court recovered 1,000,000 tenge. According to the explanations contained in paragraph 8 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", when determining the amount of compensation for moral damage, courts must take into account both a citizen's subjective assessment of the severity of moral or physical suffering caused to him, and objective data indicating about this, in particular: the vital importance of personal non-property benefits and rights (life, health, freedom, inviolability of the home, personal and family secrets, honor and dignity, etc.); the degree of moral or physical suffering experienced by the victim (deprivation of liberty, bodily injury, loss of close relatives, loss or disability, etc.); the form of guilt (intent, negligence) of the harm-doer, when it is necessary to compensate for moral harm. When determining the amount of compensation for moral damage, the court has the right to take into account other circumstances confirmed by the case materials, in particular, the family and property status of the person responsible for the moral damage caused to the victim. As can be seen from the case file, minor A. suffered an eye injury, as a result of which an operation was performed to remove the lens of the eye and replace it with an artificial eye. Thus, the natural function of the eye to see objects up close is lost. In addition, there was a need for a repeat operation. The representative of the victim B. indicates that after repeated stays in hospitals, in the KazNII of Eye Diseases of Astana and Almaty, his son A. underwent surgery to replace the lens of the eye with an artificial one. Currently, the child has permanently lost the natural function of the eye to focus well and see objects both far and near. The child will have to constantly visit eye clinic doctors all his life to monitor the condition of the operated eye and the lens installed there. In addition, doctors are currently recommending another complex operation. As a parent, he is under stress, terrified, experiencing physical suffering – depression, discomfort, despair, inferiority, depression due to the fact that his child has become practically disabled. The convicted K. derived financial benefits by carrying out business activities with gross violations of the law, without ensuring the safety of visitors to the paintball club. In such circumstances, considering that the issue of the health of a minor child who was injured as a result of the illegal actions of the civil defendant K. is being considered, the arguments of the civil plaintiff B.'s petition for an increase in the amount recovered by the court verdict in compensation for moral damage are subject to satisfaction. According to the requirements of Article 952 of the Civil Code, moral damage is compensated in monetary form.

At the same time, the court determines the amount of compensation based on the criteria of reasonableness and fairness. When determining the amount of compensation for moral damage in monetary terms, the judicial board, taking into account the degree of moral and physical suffering of the victim, the established subjective and objective data, as well as the financial situation of convicted K., who is an individual entrepreneur with a dependent minor child, considers the amount of compensation for moral damage in the amount of 3,000,000 tenge to be fair and sufficient. Based on the above, the judicial Board for criminal Cases of the Supreme Court changed the judicial acts of the local courts in respect of K. and increased the amount of the civil claim for compensation for moral damage from the convicted K. in favor of the representative of the minor victim B. to 3,000,000 tenge. The rest of the judicial acts remained unchanged. The petition of the legal representative of the minor victim B. was partially satisfied. 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases