On the revision of the decision of the judicial board for civil cases on compensation for moral damage and losses
On January 18, 2023, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, consisting of: the presiding chairman of the Board, Sh., judges, I., T., with the participation of a representative of the plaintiff, S., and a representative of the defendant, U., considered in open court via videoconference a civil case on the claim of T to N for compensation for moral damage and losses, received at the request of plaintiff T. on the revision of the decision of the judicial Board for Civil Cases of the Aktobe Regional Court dated April 26, 2022,
T. filed a lawsuit with the court to recover from N. monetary compensation for moral damage in the amount of 2,000,000 tenge, losses related to the payment of lawyers in the framework of criminal proceedings in the amount of 1,099,000 tenge. The claim is motivated by the fact that by the verdict of the Aktobe City Court No. 2 dated August 5, 2020, N. was found guilty of committing a criminal offense under part 1 of Article 293 of the Criminal Code (hereinafter referred to as the Criminal Code) with a 2–year restriction of liberty sentence. In this criminal case, the plaintiff was recognized as a victim, and therefore has the right to compensation for moral and material damage.
By the decision of the Aktobe City Court dated February 7, 2022, T.'s claim was partially satisfied, damages in the amount of 1,049,000 tenge were recovered from N. in favor of T., and a state duty in the amount of 10,490 tenge was collected into the state income.
By the decision of the judicial Board for Civil Cases of the Aktobe Regional Court dated April 26, 2022, the court's decision was changed.
Regarding the satisfaction of the claim of T. to N. for the recovery of court costs in criminal proceedings and the state fee to the state revenue, it was canceled with the adoption of a new decision to dismiss the claim. The rest of the court's decision remains unchanged.
In the petition, T. asks to cancel the decision of the court of appeal and to uphold the decision of the court of first instance due to the incorrect application of substantive and procedural law.
Having heard the representative of plaintiff S., who supported the arguments of the petition, the representative of defendant U., who believed that the contested judicial act was lawful and justified, having studied the submitted materials and discussed the arguments, the judicial board comes to the following conclusion.
In accordance with part 5 of Article 438 of the Civil 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 significant violations of substantive and procedural law that led to the issuance of an illegal judicial act.
Such violations were committed during the consideration of the case by the court of appeal.
As follows from the case file, by the verdict of the Aktobe City Court No. 2 dated August 5, 2020, defendant N. was found guilty of committing a criminal offense under part 1 of Article 293 of the Criminal Code and sentenced to two years of restriction of liberty.
According to the court's verdict, on October 8, 2018, N., while in the beer bar "Yu" in Aktobe, deliberately inflicted numerous blows with both hands on T.'s face with the aim of committing hooliganism, causing the latter bodily injuries in the form of bruises and abrasions of the face, upper lip hemorrhage, which caused minor injury to health.
In turn, T., by the verdict of the specialized interdistrict criminal Court of the Aktobe region dated January 25, 2019, as amended by the decision of the judicial board for Criminal Cases of the Aktobe Regional Court dated March 19, 2019, was sentenced under part 3 of Article 24, part 1 of Article 99 of the Criminal Code to 9 years in prison, to serve his sentence in a penal institution.correctional system of emergency safety. A dangerous recidivism of crimes was recognized in T.'s actions.
The court verdict established that T., being intoxicated, inflicted stab wounds on the latter in order to commit the murder of N., causing bodily injuries that caused serious harm to health. The court concluded that T.'s guilt had been proven in the attempt to unlawfully intentionally cause N.'s death, which was not completed due to circumstances beyond his control.
According to this verdict, T. is currently serving his sentence in prison.
The court of appeal, while leaving unchanged the decision of the court of first instance to dismiss T.'s claim for moral damages, motivated its claims by the fact that the parties had committed unlawful acts against each other as a result of a quarrel and a mutual fight caused by alcohol intoxication, while the crime committed by the plaintiff belongs to the category of particularly serious, is aimed at intentionally depriving a person of life. It was established that after stabbing the victim and preventing his actions by other visitors, T. fled the scene of the crime. The fact of the unlawful conduct of the parties, as well as the fact of the plaintiff's deliberate encroachment on the defendant's life, exclude the legal grounds for compensating the plaintiff for moral damage.
Judicial acts in this part are not disputed by the plaintiff.
In rejecting the claim for damages related to the costs of paying for legal services of lawyers, the court of appeal based its conclusions on the fact that the provisions of part 4 of Article 71 of the Code of Criminal Procedure (hereinafter referred to as the CPC), regulating the victim's right to reimbursement of court costs incurred in connection with participation in criminal proceedings, to the claim They are not applicable in civil proceedings, since this provision defines the victim's right to file a civil claim in criminal proceedings. Failure to file a claim for reimbursement of expenses for the assistance of representatives in criminal proceedings is a procedural omission of the plaintiff, and his rights cannot be restored in the framework of civil proceedings.
These conclusions of the court of appeal violate the norms of Article 166 of the CPC.
According to part 1 of the specified norm, civil claims of individuals and legal entities for compensation for property and moral damage caused directly by a criminal offense or a socially dangerous act of an insane person, as well as for reimbursement of expenses for burial, treatment of the victim, amounts paid to him as insurance compensation, benefits or pensions, as well as expenses, incurred in connection with participation in the inquiry, preliminary investigation and in court, including the costs of representation.
Part 3 of the same norm stipulates that if the persons referred to in part one of this article did not file a civil claim during the criminal proceedings or withdrew it after it was filed, or it was left without consideration by the court, they have the right to file it in civil proceedings. The plaintiff's statement on the withdrawal of a civil claim or its abandonment without consideration is resolved by the court in accordance with this Code and the norms of civil procedural legislation.
By virtue of these norms, reimbursement of expenses for representation in criminal proceedings is possible by filing a civil claim; failure to file such a claim in criminal proceedings does not preclude its filing in civil proceedings.
The court of first instance established that the interests of the victim T. in the criminal case against N. were represented by lawyers A., M., S.
According to the contracts and receipts, during the pre-trial proceedings and in court, the plaintiff spent 1,049,000 tenge to pay for the services of these lawyers.
On the grounds set out, the court of first instance reasonably satisfied T.'s claim for recovery of expenses related to the payment of assistance to representatives, and therefore the contested appeal decision is subject to change, in terms of the cancellation of the decision of the court of first instance to satisfy T.'s claim to N. for damages in the amount of 1,049,000 tenge and recovery of state revenue state duty in the amount of 10,490 tenge and the issuance of a new decision to dismiss the claim, the resolution is subject to cancellation with the decision of the court of first instance remaining in force. The rest of the resolution is to be upheld.
By an additional resolution of the judicial board for civil cases of the Aktobe Regional Court dated May 12, 2022, the costs of paying for the services of a representative in the court of first and appellate instance in the amount of 70,000 tenge were collected from T. in favor of N..
In connection with the cancellation of the appeal decision and the upholding of the decision of the court of first instance, the said additional decision is also subject to cancellation.
Guided by subparagraph 2) in part 2 of Article 451 of THE CPC, the judicial board DECIDED:
To amend the resolution of the Judicial Board for Civil Cases of the Aktobe Regional Court dated April 26, 2022.
Regarding the cancellation of the decision of the Aktobe City Court dated February 7, 2022 and the issuance of a new decision to dismiss the claim of T. to N. for damages in the amount of 1,049,000 tenge and the collection of a state fee in the amount of 10,490 tenge to the state revenue, the decision should be canceled while the decision of the court of first instance remained in force.
The rest of the resolution is to be upheld.
To cancel the additional resolution of the judicial Board for Civil Cases of the Aktobe Regional Court dated May 12, 2022 on the recovery of expenses for the services of a representative in the amount of 70,000 tenge.
To collect a state duty in the amount of 5,245 (five thousand two hundred and forty-five) tenge from N. to the state revenue.
The plaintiff's petition must be satisfied.
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