On the review of paragraph 2 of Article 951 of the Civil Code of the Republic of Kazakhstan (Special Part) dated July 1, 1999 and paragraph 9 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" for compliance with the Constitution of the Republic of Kazakhstan

Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated October 6, 2023 No. 32-NP

     The Constitutional Court of the Republic of Kazakhstan, composed of Chairman Azimova E.A., judges Eskendirov A.K., Zhatkanbayeva A.E., Kydyrbaeva A.K., Musin K.S., Nurmukhanov B.M., Podoprigora R.A., Sarsembaev E.J. and Udartseva S.F., without inviting participants in the constitutional proceedings, other persons and holding hearings,

      considered in an open meeting the appeal of Akhmetzhanov S.M. on verification of compliance with Articles 13, 16, 29 and 76 of the Constitution of the Republic of Kazakhstan, paragraph 2 of Article 951 of the Civil Code of the Republic of Kazakhstan (Special Part) dated July 1, 1999 (hereinafter referred to as the Civil Code (Special Part) and paragraph 9 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" (hereinafter – NP VS).

     Having heard the speaker, Judge of the Constitutional Court of the Republic of Kazakhstan A.E. Zhatkanbayeva, having studied the materials of the constitutional proceedings, having analyzed the norms of the current law of the Republic of Kazakhstan, the Constitutional Court of the Republic of Kazakhstan

      installed:

      The Constitutional Court of the Republic of Kazakhstan (hereinafter referred to as the Constitutional Court) has received an appeal to review paragraph 2 of Article 951 of the Civil Code (Special Part) and paragraph 9 of the NP of the Supreme Court for compliance with the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution).

      According to paragraph 2 of Article 951 of the Civil Code (Special Part), moral damage is compensated by the causer in the presence of guilt, with the exception of cases provided for in paragraph 3 of this article. According to paragraph 9 of the NP of the Supreme Court, the obligation to compensate for moral damage in accordance with paragraph 1 of Article 917 and paragraph 2 of Article 951 of the Civil Code (Special Part) arises if there are the following grounds: committing 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.

      It follows from the appeal that the applicant was subjected to detention, personal search and medical examination, and then brought to administrative responsibility with an administrative fine. The case was dismissed due to the absence of an administrative offense on the basis of subparagraph 2) of the first part of Article 741 of the Code of Administrative Offenses of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code), after which the applicant appealed to the court with a claim for compensation for moral damage upon the unlawful application of measures to ensure proceedings on an administrative offense.

      The courts' refusal to compensate for moral damage is motivated by paragraph 9 of the NP of the Supreme Court.

     The subject of the appeal believes that the provisions established by law on compensation for moral damage when brought to administrative responsibility are limited only to cases of administrative arrest and thus prevent citizens from exercising the right to judicial protection of constitutional rights and freedoms.

      When verifying the constitutionality of paragraph 2 of Article 951 of the Civil Code (Special Part) and paragraph 9 of the NP of the Supreme Court, the Constitutional Court proceeds from the following.

The Constitution establishes the highest values of the Republic of Kazakhstan for a person, his life, rights and freedoms (paragraph 1 of Article 1), which determine the content and application of laws and other regulatory legal acts.

     The rights to equality of all before the law and the court (paragraph 1 of Article 14), life (paragraph 1 of Article 15), personal freedom (paragraph 1 of article 16), inviolability of private life, personal and family secrets, protection of one's honor and dignity (paragraph 1 of Article 18), health protection (paragraph 1 of Article 29) and other rights and freedoms belonging to a person from birth are recognized and guaranteed in accordance with the Basic Law (paragraph 1 of Article 12). Collectively, these rights and freedoms ensure the right of an individual to full, harmonious development and the inviolability of his dignity (paragraph 1 of article 17) as an inviolable social good, which is protected by the Constitution, laws and other legal acts. This approach is consistent with the spirit and content of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948, which states that "all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and must act towards each other in the spirit of brotherhood." (Article 1).

     The State, realizing its obligations in the field of human and civil rights and freedoms, is obliged to ensure their protection by preventing any encroachments, including those capable of causing moral and material harm, as well as to provide the victim with the opportunity to defend his rights and legitimate interests in all ways that do not contradict the law, in particular, by applying to the court (paragraphs 1 and 2 of Article 13 of the Constitution). The judicial power has as its purpose the protection of the rights, freedoms and legitimate interests of citizens and organizations, ensuring the implementation of the Constitution, laws, other normative legal acts, international treaties (paragraph 1 of Article 76 of the Constitution). Cases of compensation for damage caused by state bodies and officials are subject to special legal regulation.

     Compensation for moral damage caused by illegal actions (inaction) of state bodies, regardless of the fault of the causer, is an important guarantee for the protection of the constitutional rights of citizens.

Compensation for harm, being an important element of restoring violated human rights and freedoms, is aimed at making up for unfavorable changes in a legally protected property or non-property good.

     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 (paragraph 1 of Article 917 of the Civil Code (Special Part). This is in line with paragraphs 1 and 4 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by United Nations General Assembly resolution 40/34 of November 29, 1985, which guarantees individuals who have been harmed individually or collectively, including bodily injury, moral and material damage, emotional suffering, substantial infringement of their fundamental rights in as a result of an act or omission that violates applicable national laws, including laws prohibiting criminal abuse of power, the right to access justice mechanisms and prompt compensation for the damage caused in accordance with national legislation.

     The Supreme Court of the Republic of Kazakhstan, summarizing judicial practice on the application by courts of legislation on compensation for moral harm, clarified that personal non-property benefits and rights, the violation, deprivation or diminution of which may cause moral harm to the victim, should be understood as benefits belonging to a citizen from birth or rights granted by law, which are inextricably linked to his personality.. The benefits that belong to a person from birth include life, health, honor, dignity, freedom, and inviolability of the individual, and the rights of a citizen granted by law include the right to inviolability of home or property; to personal and family secrets, the secrecy of telephone, telegraphic messages, and correspondence; to use a name; to an image; authorship and other personal non-property rights provided for by the legislation on copyright and related rights; freedom of movement and choice of place of residence; the right to receive reliable information, as well as other rights provided for by law (paragraph 3 of the NP of the Supreme Court).

      The Civil Code of the Republic of Kazakhstan (General Part) dated December 27, 1994 (hereinafter referred to as the Civil Code (General Part) He established a system of measures to ensure the protection of civil rights, including the right to compensation for moral damage, implemented in a civil procedure. At the same time, paragraph 3 of Article 141 of the Civil Code (General Part) provides that personal non-property rights are subject to protection regardless of the guilt of the person who violated the right, unless otherwise provided by this Code. The person who has submitted a claim for protection must prove that his personal non-property right has been violated.

The very nature of compensation for moral harm lies in the possibility of material compensation for those emotional experiences or physical pain, disability, discomfort and other sensations that arose as a result of certain illegal actions.

The legislator distinguishes compensation for moral damage depending on the circumstances of its infliction. Special procedures are provided for the compensation of damage, including moral damage caused by government agencies (officials): the issuance by state bodies of acts that do not comply with legislative acts (Article 922 of the Civil Code (Special part), illegal actions of bodies of inquiry, preliminary investigation, prosecutor's office and court (Article 923 of the Civil Code (Special Part). These provisions establish the obligation to compensate for harm without proving the guilt of the causer, which is due to the specifics of the entity with authority.

      Detailing these provisions, the legislator, in paragraph 3 of Article 951 of the Civil Code (Special Part), defined cases when moral damage is compensated regardless of the fault of the causer.: 1) harm is caused to the life and health of a citizen by a source of increased danger; 2) harm was caused to a citizen as a result of his unlawful conviction, unlawful prosecution, unlawful use of detention, house arrest or recognizance as a preventive measure, unlawful imposition of administrative penalties in the form of arrest, illegal placement in a psychiatric medical institution or other medical institution; 3) harm caused by the dissemination of information, discrediting honor, dignity and business reputation; 4) other cases provided for by legislative acts.

     In all other cases, the Civil Code (Special Part) establishes that moral damage is compensated only if the causer is guilty (paragraph 2 of Article 951).

Paragraph 1 of Article 951 of the Civil Code (Special Part) assumes that moral damage is compensated to an individual who has suffered moral or physical suffering as a result of an offense committed against him, and in the event of his death as a result of such an offense– to his close relatives, spouse. This provision should be fully reflected in paragraph 9 of the NP of the Supreme Court, which does not clearly state that moral damage is compensated to close relatives in the event of the death of an individual who has suffered moral and physical suffering. In the Supreme Court's explanation, the circle of subjects to whom moral damage is compensated is narrowed, which includes only close relatives without mentioning a spouse.

      In addition, the Constitutional Court draws the attention of the legislator to the fact that subparagraph 4) of paragraph 3 of Article 951 of the Civil Code (Special part) It refers to legislative acts, whereas according to subparagraph 1) of paragraph 3 of Article 61 of the Constitution, Parliament has the right to issue laws that regulate the most important public relations, establish fundamental principles and norms concerning the legal personality of individuals and legal entities, civil rights and freedoms, obligations and responsibilities of individuals and legal entities.

      Based on the above, guided by paragraph 3 of Article 72, paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, subparagraph 3) paragraph 4 of article 23, paragraph 6 of article 49, articles 55-58, 62, paragraph 3 of Article 64 and subparagraph 2) Paragraph 1 of Article 65 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Constitutional Court of the Republic of Kazakhstan", the Constitutional Court of the Republic of Kazakhstan

      Decides:

To recognize paragraph 2 of Article 951 of the Civil Code of the Republic of Kazakhstan (Special Part) dated July 1, 1999 and paragraph 9 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" as conforming to the Constitution of the Republic of Kazakhstan.

In accordance with the legal positions of the Constitutional Court of the Republic of Kazakhstan contained in this regulatory resolution, it is recommended to consider the following issues::

      To the Government of the Republic of Kazakhstan – on amendments to the Civil Code of the Republic of Kazakhstan (Special part);

      To the Supreme Court of the Republic of Kazakhstan – on amendments to 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".

This regulatory resolution comes into force from the date of its adoption, is generally binding throughout the territory of the Republic of Kazakhstan, final and not subject to appeal.

To publish this regulatory resolution in Kazakh and Russian in periodicals that have received the right to officially publish legislative acts, the unified legal information system and on the Internet resource of the Constitutional Court of the Republic of Kazakhstan.

     Constitutional Court of the Republic of Kazakhstan

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

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