The norms of substantive law on the recovery of moral damage by the courts were applied correctly, which is why the cassation instance had no grounds to cancel the judicial acts issued in the case.
B. filed a lawsuit with the Ministry of Internal Affairs (hereinafter referred to as the Ministry of Internal Affairs), the Committee of Internal Troops of the Ministry of Internal Affairs (hereinafter referred to as the Committee), military unit 7 ... of the Ministry of Internal Affairs for the recovery of moral damage in the amount of 10,000,000 tenge, arguing that she is experiencing moral suffering related to the death of her son, A., who died in the line of military duty while serving in the internal troops of the Ministry of Internal Affairs. Her son committed suicide on the basis of a non-statutory relationship on the part of his colleagues, Corporal M. and Private B., who were sentenced to various terms of imprisonment. According to B., the death of her son was the result of a lack of proper control by officials of the military units of the Ministry of Internal Affairs, their negligence, which is why she believed that the defendants were obliged to compensate for the moral damage caused to her. By the decision of the Almaty District Court of Astana dated April 17, 2013, the claims were denied. The decision was left unchanged by the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Astana City Court dated June 3, 2013.
By the decision of the Cassation Judicial Board of the Astana City Court dated November 26, 2013, the decision of the Almaty District Court of Astana dated April 17, 2013 and the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Astana City Court dated June 3, 2013 in this case were canceled with a new decision on the satisfaction of the claim. Compensation for moral damage in the amount of 5,000,000 tenge was collected in solidarity in favor of B. from the Committee, military unit 7 .... The court costs of paying the state fee in the amount of 50,000 tenge were attributed to the republican budget. Having considered the case at the request of the Commander-in-Chief of the Internal Troops of the Ministry of Internal Affairs to challenge the decision of the Cassation Judicial Board of the Astana City Court, the supervisory Judicial Board of the Supreme Court overturned the decision of the Cassation Judicial Board, upholding the decision of the appellate Judicial Board, by virtue of the following. The verdicts of the military court of the Almaty garrison dated October 3, 2011, which are of prejudicial importance by virtue of Article 71 of the CPC for this civil case, established that A., B.'s son, was called up for military service on December 15, 2010 and served in military unit 7 ... in Almaty. On May 6, 2011, A. was transferred to the second battalion of military unit 7..., stationed in the Almaty region. From the first days of transfer, Private B. he inflicted physical and psychological violence on Private A., accompanied by systematic extortion of money and units for a mobile phone, violating the statutory rules of relations between military personnel in the absence of subordination relations between them. On June 8, 2011, at about 9 a.m., in order to check the sentry's service, Corporal M., the assistant to the head of the guard, entered post No. 5, making a remark to Private A., allegedly for violating the rules of combat service and, violating the statutory rules of guard duty, struck several blows to the face and chest of the latter, threatening further reprisals.
As a result, A. committed suicide on the basis of a non–statutory relationship on the part of his colleagues, Corporal M. and Private B., who were convicted: B. under part three of Article 370, paragraph "a" of part two of Article 181 of the Criminal Code (hereinafter referred to as the Criminal Code) to 8 years of imprisonment while serving their sentences in a general regime colony, M. according to the second part of Article 377 of the Criminal Code, to 6 years of imprisonment while serving a sentence in a general regime colony. According to the results of an internal investigation, by order of the Commander of the Internal Troops of the Ministry of Internal Affairs, the guilty officials of military units 5 ... and 7 ..., who allowed the death of Private A., were subjected to various disciplinary measures. Believing that not only convicted servicemen, but also officials of military units were responsible for the death of her son and causing moral harm to her, B. filed this lawsuit with the court. The Court of first instance, rejecting the claim, correctly assumed that B. She was recognized as a victim in the above-mentioned criminal cases in accordance with the first part of article 75 of the Criminal Procedure Code. According to part four of this article, the victim's claim for compensation for moral damage is considered in criminal proceedings.
The court's verdicts satisfied B.'s civil claim, and compensation for moral damage for the death of his son was collected from each of the convicts in favor of B. for 500,000 tenge, which is why the court found no reason to recover compensation for moral damage from the defendants. The appellate instance agreed with these conclusions, pointing out that the Committee paid the plaintiff 756,000 tenge as a lump sum compensation provided for by the Rules for the payment of lump sum compensation in the event of death (death) of a serviceman (liable for military service), developed in accordance with article 14 of the Law "On the Status and Social Protection of Military Personnel and Members of Their Families", in force at the time The death of A. The cassation instance pointed out the incorrect application of substantive law by the courts of lower instances, which is why it canceled the judicial acts they had issued and made a new decision to satisfy B.'s claim. At the same time, the cassation board proceeded from the fact that A.'s death occurred not only because of the criminal actions of the convicted M. and B., but also as a result of the inaction of military unit officials, expressed in the absence of proper statutory order, failure to ensure security measures during service and daily activities. The guilt of the officials of military units 5 ... and 7 ... is confirmed by the materials of the internal investigation, the fact of bringing them to disciplinary responsibility. Thus, according to the conclusions of the court of cassation, the presence of unlawful behavior (inaction) and the guilt of the officials of the defendants, for whose actions legal entities are responsible under civil law - the state institutions in which the officials serve, as well as the causal relationship of the unlawful behavior of these persons with the death of a serviceman. The arguments of the defendants about the absence of their guilt in causing moral harm to B. and the causal relationship between the officials' inaction and the consequences in the form of A.'s death and moral harm were found by the cassation board to be unfounded. The Supervisory Board of the Supreme Court considered the conclusions of the court of cassation to be erroneous, based on a misinterpretation of substantive law and inconsistent with the circumstances established in the case. In accordance with paragraph 17 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001 No. 3 "On the application by courts of legislation on compensation for moral damage", personal non-property rights are subject to protection by the court only in cases stipulated by the Civil Code of the Republic of Kazakhstan, regardless of the guilt of the person who violated these rights. In other cases, compensation for moral damage is made upon establishing the guilt of the person who caused this harm. The court's judgments, which have entered into legal force, have identified the persons guilty of driving A. to suicide, who directly caused harm, and from whom compensation for moral damage has been collected in criminal cases.
The court of cassation did not specify the norm of the Civil Code, according to which the obligation to compensate moral damage is imposed on defendants who are not guilty of causing harm. It follows from the case file that the reason for A.'s suicide was illegal actions on the part of B. and M., and not the negligence and lack of control of officials, as indicated in the cassation decision. The officials of the defendants were disciplined for the low efficiency of their work with the staff, but these shortcomings are not directly causally related to the death of A. Thus, the conclusions of the courts of the first and appellate instances on the absence of grounds for satisfaction of the claim are justified, the norms of substantive law to be applied in this case were applied correctly by these courts, which is why the court of cassation had no grounds to cancel the judicial acts issued in the case.
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