Article 168. Application of the Rules on the Grounds, Conditions, Scope and Method of Compensation for Damage. Commentary on the Article of the Criminal Procedure Code of the Republic of Kazakhstan

1. When considering a civil claim brought in criminal proceedings, the grounds, conditions, scope and method of compensation for damage shall be determined in accordance with the provisions of civil, labour and other legislation.

2. If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those contained in this Code, the rules of the international treaty shall apply.

The provision under commentary refers the body conducting the criminal proceedings to the provisions of other branches of legislation governing the grounds, conditions, scope and methods of compensation for damage to a victim of a criminal offence or a socially dangerous act committed by a person who is legally insane.

The system of provisions contained in the articles of Chapter 47 of the Civil Code, “Obligations Arising as a Result of Causing Harm”, most fully illustrates the provisions of Part 1 of Article 168 of the CPC. These provisions regulate the general grounds of liability for causing harm, as well as the conditions, scope and methods of compensation for damage. Let us set out certain provisions of the articles of this chapter of the Civil Code. According to the general rule in the field of civil law (Article 917 of the Civil Code), harm (property and/or non-property) caused by unlawful actions (inaction) to the property or non-property benefits and rights of individuals and legal entities shall be compensated in full by the person who caused the harm. Legislative acts may impose the obligation to compensate for harm on a person other than the person who caused it, and may also establish a higher amount of compensation. A person who has caused harm shall be released from the obligation to compensate for it if that person proves that the harm was caused through no fault of their own, except in cases provided for by the Civil Code. Harm caused by lawful actions shall be subject to compensation in cases provided for by the Civil Code and other legislative acts.

These matters are addressed in greater detail in the provisions of other articles of this chapter of the Civil Code, which it is necessary to be familiar with.

Thus, pursuant to Article 919 of the Civil Code, harm caused in a state of necessary defence shall not be subject to compensation if the limits of such defence were not exceeded.

Pursuant to Article 920 of the Civil Code, harm caused in a state of extreme necessity, that is, for the purpose of eliminating a danger threatening the person who caused the harm or other persons, where such danger could not have been eliminated by other means under the circumstances, shall be compensated by the person who caused the harm. Having regard to the circumstances in which such harm was caused, the court may impose the obligation to compensate for it on a third party in whose interests the person who caused the harm acted, or on that third party and the person who caused the harm jointly, in proportionate shares, and may also release either that third party or the person who caused the harm, in whole or in part, from the obligation to compensate for the harm.

Pursuant to Article 921 of the Civil Code, a legal entity or an individual shall compensate for harm caused by its employee in the performance of employment (official or job-related) duties. For the purposes of the provisions of the Civil Code concerning obligations arising as a result of harm caused by employees, employees shall include individuals performing work on the basis of an employment agreement (contract), as well as on the basis of a civil-law contract, provided that they acted or were required to act on the instructions and under the supervision of the relevant legal entity or individual with regard to the safe performance of work. Business partnerships, joint-stock companies and production cooperatives shall compensate for harm caused by their participants (members) in the course of the latter's business, production or other activities of the partnership, joint-stock company or cooperative.

Pursuant to Article 925 of the Civil Code, parents (adoptive parents) and guardians shall be liable for harm caused by a minor under the age of fourteen (a young child), unless they prove that the harm arose through no fault of their own (paragraph 1). If a young child requiring guardianship was placed in an appropriate educational, medical, social protection or other similar institution which, by virtue of law, is their guardian, that institution shall be obliged to compensate for the harm caused by the young child unless it proves that the harm arose through no fault of its own (paragraph 2). If a young child caused harm while under the supervision of an educational, upbringing, medical or other institution obliged to supervise the child, or of a person obliged to exercise supervision on the basis of a contract, such institutions and persons shall be liable for the harm unless they prove that it arose through no fault of their own in the exercise of supervision (paragraph 3). The obligation of legal representatives, educational, upbringing, medical and other institutions to compensate for harm shall not cease when the young child reaches the age of majority or acquires property sufficient to compensate for the harm. If the legal representatives have died or they, as well as the other persons specified in paragraph 3, do not have sufficient means to compensate for harm caused to the life and health of the victim, and the person who caused the harm, having subsequently acquired full legal capacity, has such means, the court, taking into account the financial situation of the victim and the person who caused the harm, as well as other circumstances, shall be entitled to decide that the harm be compensated in whole or in part from the property of the person who caused the harm (paragraph 4).

Pursuant to Article 926 of the Civil Code, minors aged fourteen to eighteen shall independently bear liability for harm caused by them on general grounds (paragraph 1). Where a minor aged fourteen to eighteen has no property or other sources of income sufficient to compensate for the harm, the harm shall be compensated in full or to the extent of the shortfall by their legal representatives, unless they prove that the harm arose through no fault of their own. If a minor aged fourteen to eighteen who requires trusteeship was placed in an appropriate educational, medical, social protection or other similar institution which, by virtue of law, acts as their trustee, such institutions shall be obliged to compensate for the harm in full or to the extent of the shortfall, unless they prove that the harm arose through no fault of their own (paragraph 2). The obligation of legal representatives and the relevant institution to compensate for harm shall cease when the person who caused the harm reaches the age of majority, or when, before reaching the age of majority, that person acquires property or other sources of income sufficient to compensate for the harm, or when that person acquires legal capacity before reaching the age of majority (paragraph 2 of Article 17, Article 22-1 of the Civil Code).

Pursuant to Article 927 of the Civil Code, a court may impose liability on a parent deprived of parental rights for harm caused by their minor children within three years after the parent was deprived of parental rights, provided that it is established that the child's conduct which resulted in the harm was a consequence of the parent's improper performance of their parental responsibilities.

Pursuant to Article 928 of the Civil Code, harm caused by an individual declared legally incapable (Article 26 of the Civil Code) shall be compensated by their guardian or by the organisation obliged to supervise them, unless they prove that the harm arose through no fault of their own. The obligation of the guardian or organisation to compensate for harm caused by an individual declared legally incapable shall not cease even if that individual's legal capacity is restored. If the guardian has died or does not have sufficient means to compensate for the harm, while the person who caused the harm has such means, the court, taking into account the financial situation of the victim and the person who caused the harm, as well as other circumstances, in particular the restoration of the legal capacity of the person who caused the harm, shall be entitled to decide that the harm caused to the life and health of the victim be compensated in whole or in part from the property of the person who caused the harm.

Pursuant to Article 929 of the Civil Code, harm caused by an individual whose legal capacity has been restricted as a result of the abuse of alcoholic beverages or narcotic substances (Article 27 of the Civil Code) shall be compensated by the person who caused the harm on general grounds.

Pursuant to Article 930 of the Civil Code, a legally capable individual, as well as a minor aged fourteen to eighteen, who caused harm while in a state in which they were unable to understand the significance of their actions or control them, shall not be liable for the harm caused by them. If the harm was caused to the life or health of the victim, the court may, taking into account the financial situation of the victim and the person who caused the harm, as well as other circumstances, impose the obligation to compensate for the harm in whole or in part on the person who caused it. The person who caused the harm shall not be released from liability if they brought themselves into such a state through the consumption of alcoholic beverages, narcotic substances or by other means. If harm was caused by a person who was unable to understand the significance of their actions or control them as a result of mental illness or intellectual disability, the court may impose the obligation to compensate for the harm on the following able-bodied persons living together with that individual: their spouse, parents or adult children, who knew about the condition of the person who caused the harm but did not raise the issue of declaring that person legally incapable and establishing guardianship over them.

Pursuant to Article 931 of the Civil Code, legal entities and individuals whose activities involve increased danger to others (transport organisations, industrial enterprises, construction sites, owners of vehicles, etc.) shall be obliged to compensate for harm caused by a source of increased danger unless they prove that the harm arose as a result of force majeure or the intent of the victim. The obligation to compensate for harm shall be imposed on the legal entity or individual who owns the source of increased danger on the basis of the right of ownership, the right of economic management or the right of operational management, or on any other lawful basis (a property lease agreement, a power of attorney granting the right to drive a vehicle, an order of a competent authority transferring the source, etc.) (paragraph 1). Owners of sources of increased danger shall bear joint and several liability for harm caused to third parties as a result of the interaction of such sources (collision of vehicles, etc.), on the grounds provided for in paragraph 1. Harm caused to the owners themselves as a result of the interaction of sources of increased danger shall be compensated on general grounds. In this regard: 1) harm caused through the fault of one party shall be compensated in full by that party; 2) harm caused through the fault of two or more parties shall be compensated in proportion to the degree of fault of each of them. If it is impossible to determine the degree of fault of each party, liability shall be distributed equally among them. If none of the parties is at fault for causing the harm, none of them shall have the right to claim compensation. In such a case, each party shall bear the risk of the losses incurred by it (paragraph 2). The owner of a source of increased danger shall not be liable for harm caused by that source if they prove that the source left their possession as a result of unlawful actions by other persons. In such cases, liability for harm caused by the source of increased danger shall be borne by the persons who unlawfully took possession of it. If the owner was at fault in the unlawful removal of the source of increased danger from their possession, liability may be imposed both on the owner and on the persons who took possession of the source of increased danger (paragraph 3).

Pursuant to Article 932 of the Civil Code, persons who have jointly caused harm shall be jointly and severally liable to the victim. At the request of the victim and in the victim's interests, the court shall be entitled to impose liability on the persons who jointly caused the harm in proportionate shares.

Pursuant to Article 933 of the Civil Code, a person who has compensated for harm caused by another person (an employee in the performance of employment (official or job-related) duties, a person driving a vehicle, etc.) shall have the right of recourse (regress) against that person in the amount of the compensation paid, unless another amount is established by legislative acts. A person who has compensated for harm caused jointly shall be entitled to claim from each of the persons who caused the harm the share of the compensation paid to the victim corresponding to the degree of fault of that person. If it is impossible to determine the degree of fault, the shares shall be deemed equal. The State, having compensated for harm caused by officials of bodies of inquiry, preliminary investigation, the prosecutor's office and the court (paragraph 1 of Article 923 of the Civil Code), shall have the right of recourse against such persons in cases where their fault has been established by a court judgment that has entered into legal force. Persons who have compensated for harm on the grounds specified in Articles 925–928 of the Civil Code shall not have the right of recourse (regress) against the person who caused the harm.

Pursuant to Article 934 of the Civil Code, when granting claims for compensation for harm, the court shall, in accordance with the circumstances of the case, oblige the person liable for the harm to compensate fully for the losses caused or to compensate for the harm in kind (by providing an item of the same type and quality, repairing the damaged item, etc.).

Pursuant to Article 935 of the Civil Code, harm arising as a result of the intent of the victim shall not be subject to compensation (paragraph 1). If the gross negligence of the victim contributed to the occurrence or increase of the harm, the amount of compensation shall be reduced depending on the degree of fault of the victim and the person who caused the harm (paragraph 2). In cases of gross negligence by the victim and absence of fault on the part of the person who caused the harm, where liability arises irrespective of fault, the amount of compensation shall be reduced or compensation for the harm may be refused, unless otherwise provided for by legislative acts. Where harm is caused to the life or health of an individual, a complete refusal to compensate for the harm shall not be permitted (paragraph 3). The fault of the victim shall not be taken into account when compensating additional expenses (Article 937 of the Civil Code), compensating persons who have suffered losses as a result of the death of an individual (Article 940 of the Civil Code), or compensating funeral expenses (Article 946 of the Civil Code) (paragraph 4). The court may reduce the amount of compensation for harm caused by an individual, taking into account that individual's financial situation, except in cases where the harm was caused by intentional actions (paragraph 5).

Pursuant to paragraph 1 of Article 951 of the Civil Code, moral harm means the violation, diminution or deprivation of personal non-property benefits and rights of individuals, including moral or physical suffering (humiliation, irritation, depression, anger, shame, despair, physical pain, impairment, a state of discomfort, etc.) experienced (endured, suffered) by the victim as a result of an offence committed against them, and, in the event of their death as a result of such an offence, by their close relatives and spouse (paragraph 1). At the same time, moral harm shall be compensated by the person who caused it where that person's fault is established, except in the cases provided for in paragraph 3 of Article 951 of the Civil Code. Thus, moral harm shall be compensated irrespective of the fault of the person who caused it in the following cases: 1) harm is caused to the life and health of an individual by a source of increased danger; 2) harm is caused to an individual as a result of unlawful conviction, unlawful prosecution, unlawful application of detention, house arrest or a written undertaking not to leave the place of residence as a preventive measure, unlawful imposition of an administrative penalty in the form of arrest, or unlawful placement in a psychiatric medical institution or another medical institution; 3) harm is caused by the dissemination of information discrediting honour, dignity and business reputation; 4) other cases provided for by legislative acts (paragraph 3 of Article 951 of the Civil Code).

In this regard, it should be noted that civil legislation does not provide for compensation for moral harm to a legal entity, and courts should refuse to accept statements of claim by legal entities seeking compensation for moral harm. If such a statement of claim is accepted, the proceedings shall be terminated. However, it should be borne in mind that claims for the protection of the business reputation of an individual also apply to the protection of the business reputation of a legal entity, with the exception of claims for compensation for moral harm. The rules on compensation for losses in accordance with the procedure established by the Civil Code shall apply to the protection of the business reputation of a legal entity (paragraph 17 of Normative Resolution of the Supreme Court No. 7 of 27 November 2015, “On the Application by Courts of Legislation on Compensation for Moral Harm”; paragraph 17 of Normative Resolution of the Supreme Court No. 1 of 20 June 2005, “On the Consideration of a Civil Claim in Criminal Proceedings”).

Pursuant to Article 952 of the Civil Code, moral harm shall be compensated in monetary form (paragraph 1). When determining the amount of compensation for moral harm, both the victim's subjective assessment of the severity of the moral damage caused to them and objective data indicating the degree of the victim's moral and physical suffering shall be taken into account: the vital importance of the benefit that was the object of the infringement (life, health, honour, dignity, freedom, inviolability of the home, etc.); the severity of the consequences of the offence (murder of close relatives, bodily injuries resulting in disability, deprivation of liberty, loss of employment or housing, etc.); the nature and scope of dissemination of false and defamatory information; the victim's living conditions (employment-related, family, domestic, financial, state of health, age, etc.); and other circumstances deserving consideration (paragraph 2). Moral harm shall be compensated irrespective of the property damage subject to compensation (paragraph 3).

The system of provisions to be taken into account by courts when deciding matters concerning compensation for harm, including in criminal cases, is also established by the Labour Code of the Republic of Kazakhstan dated 23 November 2015 (Articles 120–123).

Thus, in accordance with Article 120 of the Labour Code, the material liability of a party to an employment contract for damage (harm) caused by that party to the other party to the employment contract shall arise where the damage was caused as a result of culpable unlawful conduct and there is a causal link between the culpable unlawful conduct and the damage (harm) caused, unless otherwise provided for by the Labour Code and other laws (paragraph 1). A party to an employment contract that has caused damage (harm) to the other party shall compensate for it in accordance with the Labour Code and other laws of the Republic of Kazakhstan (paragraph 2). The employment contract and collective agreement may specify the material liability of the employee and the employer (paragraph 3). Termination of the employment contract after damage (harm) has been caused shall not release a party to the employment contract from material liability for compensating the other party for the damage (harm) caused (paragraph 4), etc.

For example, an employer shall be obliged to compensate an employee for wages and other payments due to the employee but not received in cases of unlawful transfer to another job, denial of access to the employee's workplace, unilateral alteration of the terms of the employment contract, suspension from work, termination of the employment contract, etc. (Article 121 of the Labour Code).

Another example: where harm is caused to the life and/or health of an employee in connection with the performance of their employment duties, the employer shall be obliged to compensate for the harm to the extent provided for by the Civil Code (paragraph 1 of Article 122 of the Labour Code).

In turn, an employee shall bear material liability to the employer for direct actual damage caused to the employer (paragraph 3 of Article 123 of the Labour Code). Direct actual damage means an actual reduction in the employer's existing property or deterioration in the condition of such property (including the property of third parties held by the employer, where the employer is responsible for the safekeeping of that property), as well as the need for the employer to incur expenses or make excessive payments for the acquisition or restoration of property (paragraph 4 of Article 123). Full material liability for damage caused to the employer shall be imposed on the employee in the following cases: 1) failure to ensure the safekeeping of property and other valuables entrusted to the employee on the basis of a written agreement accepting full material liability; 2) failure to ensure the safekeeping of property and other valuables received by the employee on account under a one-time document; 3) causing damage while under the influence of alcohol, narcotic substances or toxic substances (or their analogues); 4) shortage, intentional destruction or intentional damage of materials, semi-finished products and products (goods), including during their manufacture, as well as tools, measuring instruments, special clothing and other items issued by the employer to the employee for use; 5) breach of a non-competition condition that resulted in damage to the employer;

in other cases stipulated in employment contracts or collective agreements (paragraph 8 of Article 123 of the Labour Code).

The organic connection between the grounds, conditions, scope and methods of compensation for damage when considering a civil claim brought in criminal proceedings, as provided for by the CPC and the Civil Code, can also be traced in a number of other laws of the country. For example, pursuant to the Environmental Code of the Republic of Kazakhstan dated 9 January 2007 (Articles 321–322), legal entities and individuals who have caused harm to the environment, the health of citizens, or the property of organisations, citizens and the State as a result of violating environmental protection legislation shall be obliged to compensate for such harm in accordance with the legislation in force (paragraph 1). Compensation shall be payable for damage caused to the environment, the health of citizens, the property of individuals and legal entities, and the State as a result of: 1) destruction and damage to natural resources; 2) unlawful and irrational use of natural resources, etc. (paragraph 2). Compensation for harm to the health of individuals and damage to the property of individuals and legal entities and the State by persons who have committed environmental offences shall be made voluntarily or pursuant to a court decision in accordance with the legislation of the Republic of Kazakhstan. Harm shall be compensated in full, taking into account the degree of loss of the victim's ability to work, the costs of their treatment and restoration of health, the costs of care for the patient, and other expenses and losses (paragraph 3). Compensation for damage caused to the environment as a result of violations of the environmental legislation of the Republic of Kazakhstan shall be made voluntarily or pursuant to a court decision on the basis of an economic assessment of the damage, the procedure for which shall be determined in accordance with the said Code (paragraph 4). Individuals and legal entities whose activities involve increased danger to the environment shall be obliged to compensate for harm caused by a source of increased danger unless they prove that the harm arose as a result of force majeure or the intent of the victim (paragraph 5). Moral harm caused as a result of a violation of the environmental legislation of the Republic of Kazakhstan shall be compensated in accordance with the procedure established by the Civil Code of the Republic of Kazakhstan (paragraph 6). Cases of above-standard placement of waste and cases of above-standard discharge of pollutants into facilities equipped and intended for waste disposal and wastewater discharge, which prevent pollution of the earth's surface, subsoil and groundwater, shall not be regarded as damage to the environment (paragraph 7). Cases involving the release of chemicals or spillage of wastewater onto industrial sites bounded by protective structures preventing their entry into the earth's surface, subsoil and groundwater shall not be regarded as damage to the environment (paragraph 8) (Article 321).

A person who has caused harm to the environment shall have the right to voluntarily eliminate the damage caused or compensate for it by other means. The person's obligations to eliminate or compensate for the damage shall be set out in a letter of guarantee (paragraph 1). Compensation for harm may be made in monetary form using the own funds of the person who caused harm to the environment or through insurance payments (paragraph 2). Monetary forms of compensation for harm include funds for restoring the environment to the condition it was in at the time the harm was caused, carrying out measures for the reproduction of natural resources, and compensating the claimant for other losses, including lost profits (paragraph 3). With the consent of the parties, pursuant to a court decision, harm may be compensated in kind by imposing on the defendant the obligation to restore the environment (paragraph 4). Forms of compensation for harm in kind include measures to restore the environment to the condition it was in at the time the harm was caused and to provide an equivalent natural resource in place of one that has been destroyed or damaged. Compensation for harm in kind shall be carried out by concluding a contract and/or agreement regulating the procedure, conditions, time limits and scope of compensation for the harm caused (paragraph 5). The amounts recovered as compensation for harm shall be transferred to the State budget and, in cases established by the legislation of the Republic of Kazakhstan, to the victim (paragraph 6). Compensation for harm shall not release the person who caused harm to the environment from administrative and criminal liability (paragraph 7) (Article 322).

The Law dated 7 July 2006, “On Specially Protected Natural Areas” (Article 82), provides that individuals and legal entities who have caused harm to specially protected natural areas and objects of the State Nature Reserve Fund shall be obliged to compensate for the harm in full, in an amount corresponding to the costs of restoring the specially protected natural area and objects of the State Nature Reserve Fund, taking into account the losses incurred.

The Law dated 16 April 1997, “On Housing Relations” (Article 39), establishes that if the owner of a premises (apartment) causes damage to any part of the common property or to any other premises, they shall be obliged, at their own expense, to eliminate the damage or compensate for the costs of eliminating it (paragraph 1). Persons residing in or using the premises shall bear the same obligation jointly and severally with the owner if they are the direct persons who caused the damage (paragraph 2).

The Law dated 12 January 2016, “On the Use of Atomic Energy” (Article 24), establishes that harm caused to individuals and legal entities as a result of improper handling of nuclear energy facilities shall be compensated in accordance with the legislation of the Republic of Kazakhstan (paragraph 1). Individuals and legal entities responsible for improper handling of nuclear energy facilities shall, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, compensate for damage caused to land, water, flora and fauna, including the costs of land reclamation and restoration of soil fertility (paragraph 2).

The Law dated 13 July 1999, “On Counteracting Terrorism” (Article 16), provides that compensation for property damage caused to individuals and legal entities as a result of an act of terrorism shall be carried out in accordance with the procedure established by the Government of the Republic of Kazakhstan (paragraph 1); compensation for moral harm caused as a result of an act of terrorism shall be made at the expense of the persons who committed it (paragraph 2); harm caused to the health and property of a person (persons) committing an act of terrorism, as well as harm resulting from the death of such person (persons), during the suppression of an act of terrorism shall not be subject to compensation (paragraph 3); compensation for harm caused to individuals and legal entities during the suppression of an act of terrorism shall be made from budgetary funds in accordance with the procedure established by the Government of the Republic of Kazakhstan (paragraph 4).

The Law dated 13 December 2000, “On Family-Type Children's Villages and Youth Homes” (Article 32), establishes that persons undergoing social adaptation between the ages of sixteen and eighteen shall independently bear liability for harm caused by them on general grounds (paragraph 1). If a person undergoing social adaptation between the ages of sixteen and eighteen, who requires trusteeship, was placed in a children's village, children's home or boarding school for orphans and children deprived of parental care, which by virtue of law acts as their trustee, the administration of the children's village, children's home or boarding school for orphans and children deprived of parental care shall be obliged to compensate for the harm in full or to the extent of the shortfall, unless it proves that the harm arose through no fault of its own (paragraph 2). The obligation of the administration of the children's village, children's home or boarding school for orphans and children deprived of parental care to compensate for the harm shall cease when the person who caused the harm reaches the age of majority, or when, before reaching the age of majority, that person acquires property or other sources of income sufficient to compensate for the harm, or when that person acquires legal capacity before reaching the age of majority.

The Law dated 17 January 2002, “On Merchant Shipping” (Article 169), provides that harm caused in a collision between vessels shall be compensated in accordance with the procedure established by the Civil Code of the Republic of Kazakhstan (paragraph 1). Liability shall be determined in the same manner where a collision between vessels occurred through the fault of a pilot, including in cases of compulsory pilotage (paragraph 2). Where a collision between vessels occurred through the fault of two or more parties, liability for the harm caused shall be determined in proportion to the degree of fault of each of them. If it is impossible to determine the degree of fault of each party, liability shall be distributed equally among them, based on the circumstances of the collision (paragraph 3). Shipowners shall bear joint and several liability to the victim or to persons who, in accordance with the Civil Code, are entitled to compensation for harm caused to the life and health of an individual. A shipowner who has compensated for harm caused jointly shall be entitled to claim from each of the persons who caused the harm the share of the compensation paid to the victim corresponding to the degree of fault of that person (paragraph 4).

Where none of the parties is at fault for causing harm in a collision between vessels, in the event of an accidental collision, a collision resulting from force majeure, or where it is impossible to establish the causes of the collision, neither party shall have the right to claim compensation for harm. In such a case, each party shall bear the risk of the losses incurred by it (paragraph 1). The rules established in paragraph 1 shall also apply where the vessels, or one of them, were at anchor or otherwise secured at the time of the collision (paragraph 2) (Article 170 of the Law). This Law also regulates other matters relating to compensation for harm and damage in the field of merchant shipping: liability for damage resulting from the carriage of dangerous goods and pollution of the sea by oil from vessels (Chapter 18), limitation of liability in respect of maritime claims (Chapter 20), arrest of vessels (Chapter 22), reports, claims and lawsuits, and limitation periods (Chapter 24).

The Law dated 24 June 2002, “On Complex Entrepreneurial Licence (Franchising)” (Article 6), provides that harm caused to a participant in franchising relations as a result of the issuance by State bodies of acts that do not comply with the legislation of the Republic of Kazakhstan, as well as as a result of unlawful actions (inaction) of officials of such bodies, shall be compensated in accordance with the Civil Code.

The Law dated 5 March 2003, “On Martial Law” (paragraph 1 of Article 8), establishes that military personnel and employees of State bodies engaged in ensuring the martial law regime, in the performance of their official duties, shall be granted the right to carry, store and use weapons, military equipment and special means, as well as to use physical force. Such persons shall not be liable for causing harm in connection with the use of physical force, special means, weapons and military equipment, provided that the harm inflicted corresponds to the nature and degree of the danger posed.

The Law dated 7 July 2004, “On Compulsory Insurance of Civil Liability of Owners of Facilities Whose Activities Involve the Risk of Causing Harm to Third Parties” (subparagraphs 1–2 of paragraph 1 of Article 20), establishes that an insured event under a compulsory insurance contract covering the liability of facility owners shall be recognised as the occurrence of civil liability of the policyholder (insured person) to compensate for harm caused to the life, health and/or property of a third party by a hazardous production factor. The amount of the insurance payment shall be determined by the insurer or an independent expert on the basis of an investigation report into the causes of the accident or incident, court decisions and other materials containing information on the amount of harm caused (paragraph 1 of Article 18). An insurer that has made an insurance payment shall have the right of recourse against the policyholder within the limits of the amount paid in the following cases: 1) intentional actions of the policyholder (insured person) aimed at causing the insured event or contributing to its occurrence; 2) the commission by the policyholder (insured person) of acts recognised, in accordance with the procedure established by legislative acts of the Republic of Kazakhstan, as intentional criminal offences or administrative offences that are causally connected with the insured event, etc.

A comprehensive explanation of the provisions of Article 167 of the CPC, as well as the above-mentioned individual provisions of Chapter 47 of the Civil Code of the Republic of Kazakhstan and other laws concerning civil claims in criminal proceedings, is provided in a number of normative resolutions of the Supreme Court.

For example, valuable interpretations concerning compensation for harm are contained in Normative Resolution of the Supreme Court No. 2 dated 24 April 1992, “On the Practice of Applying Legislation Regulating the Rights and Obligations of Persons Who Have Suffered from Criminal Offences”. In particular, courts should bear in mind that, in accordance with the provisions of civil legislation, a person liable for property damage shall be obliged to compensate the civil claimant or victim in kind (by providing an item of the same quality and type, repairing the damaged item, etc.) or to compensate in full for the losses incurred by the victim in connection with the theft or destruction of their property; the person who caused the harm shall be obliged to compensate for expenses incurred in connection with bodily injury or other damage to the victim's health and, in the event of the loss of a breadwinner, funeral expenses; harm caused by a source of increased danger shall be compensated by the owner of such source, except in cases specified by law; harm caused by an individual declared legally incapable shall be compensated by their guardian or by the organisation obliged to supervise them, unless they prove that the harm arose through no fault of their own; for harm caused by a minor aged fourteen to eighteen, where the minor has no property or other sources of income sufficient to compensate for the harm, the harm shall be compensated in full or to the extent of the shortfall by their legal representatives, unless they prove that the harm arose through no fault of their own (paragraph 17). Damage caused by the theft, damage or destruction of property shall be compensated to the victim taking into account the prices prevailing on the date of the decision on compensation. Where necessary, the court shall determine the amount of damage caused by the theft, damage or destruction of property on the basis of an expert opinion, or the damage may be assessed by specialists or experts. The court shall be entitled to increase the amount of damage to be compensated, taking into account the prices prevailing at the time of the proceedings. A change in the amount of recovery resulting from changes in prices after the commission of the criminal offence shall not affect the classification of the criminal offence or the scope of the charge (paragraph 18), etc. In the same context, Normative Resolution of the Supreme Court No. 9 dated 9 July 1999, “On Certain Issues of the Application by Courts of the Legislation of the Republic on Compensation for Harm Caused to Health”, states that disputes related to compensation for harm caused to the life and health of an individual in the performance of contractual and other obligations shall be resolved through civil proceedings in accordance with the provisions of Chapter 47 of the Civil Code, unless legislative acts or a contract provide for increased liability of the person who caused the harm. Contractual obligations shall mean obligations arising from a contract. Such contracts may include an employment agreement (contract), an agency agreement, etc. Other obligations shall mean obligations to compensate for harm caused by a person who is not in a contractual relationship with the victim, for example, a person whose activities create an increased danger to others (a source of increased danger), etc. (paragraph 1). In this regard, the owner of a source of increased danger shall mean a legal entity or an individual operating a source of increased danger by virtue of their right of ownership, right of economic management, right of operational management or other grounds (under a lease agreement, a power of attorney to drive a vehicle, by virtue of an order of a competent authority transferring the source of increased danger, etc.). A person operating a source of increased danger by virtue of an employment relationship with the owner of that source (a driver, machinist, operator, etc.) shall not be recognised as the owner of the source of increased danger and shall not bear liability to the victim for the harm caused. If motor transport enterprises and other enterprises transfer vehicles under lease agreements to their employees, that is, persons who are in employment relationships with the enterprise, act in the interests of the enterprise, and the vehicle does not in fact leave the possession of that enterprise, the enterprise shall bear liability for the harm caused as the owner (proprietor) of the source of increased danger (paragraph 7). The owner of a source of increased danger shall not be liable for harm if they prove that the source left their possession through no fault of their own, but as a result of unlawful actions by other persons. In such cases, the liability of the persons who actually possessed the source of increased danger shall be determined on general grounds. Where harm is caused by a source of increased danger that left the possession of its owner not only as a result of unlawful actions by other persons but also through the fault of the owner (for example, the owner failed to ensure proper protection of the source of increased danger), liability for the harm may be imposed both on the person directly operating the source of increased danger and on its owner. Under such circumstances, liability shall be imposed in proportionate shares (paragraph 9).

Normative Resolution of the Supreme Court No. 6 dated 11 April 2002, “On Judicial Practice in Cases Involving Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Antisocial Acts” (paragraph 28), also states that, when considering a civil claim in criminal proceedings, courts should proceed from the fact that, by virtue of Article 926 of the Civil Code, minors aged fourteen to eighteen independently bear liability for the harm caused by them (including moral harm) on general grounds. Where a minor aged fourteen to eighteen has no income or other property sufficient to compensate for the harm, the harm shall be compensated in full or to the extent of the shortfall by their legal representatives, unless they prove that the harm arose through no fault of their own. The obligation of legal representatives and the relevant institution to compensate for harm caused by minors shall cease when the person who caused the harm reaches the age of eighteen, or in cases where, before reaching the age of majority, that person acquires income or other property sufficient to compensate for the harm, or acquires legal capacity before reaching the age of majority (paragraph 2 of Article 17, Article 22-1 of the Civil Code). If the damage resulted from the joint commission of criminal offences by several persons, the convicted persons, both adults and minors, where they have sufficient earnings and property, shall bear joint and several material liability in accordance with Article 932 of the Civil Code. By virtue of paragraph 2 of Article 923 of the Civil Code, the court may, at the request of the victim and in the victim's interests, impose liability in proportionate shares on the persons who jointly caused the harm. Citizens and organisations involved as defendants in cases provided for by law shall compensate, in proportionate shares, for damage caused by convicted minors.

Normative Resolution of the Supreme Court No. 5 dated 29 June 2009, “On Certain Issues of the Application by Courts of Legislation on Inheritance” (paragraph 26), explains that the death of a person who is a defendant in a claim for compensation for harm caused by that person shall not constitute grounds for terminating the proceedings (subparagraph 7 of Article 277 of the CPC of the Republic of Kazakhstan), since the law permits legal succession in respect of this legal relationship, and heirs who have accepted the inheritance shall be liable for the debts of the deceased within the limits of the actual value of the inherited property transferred to them (paragraph 1 of Article 1040 of the Civil Code), etc.

Among the sources regulating the procedural form for resolving civil claims in criminal proceedings, the CPC assigns an important role to international treaties on legal assistance in criminal matters to which the Republic of Kazakhstan is a party. Above, we indicated the list of international treaties concluded by the Republic of Kazakhstan with other States (see the commentary to the provisions of Part 2 of Article 1, Part 3 of Article 2, Part 2 of Article 3, and Article 4 of the CPC), which provide for different scopes of legal assistance in criminal matters, consisting of a specific set of procedural actions that may be undertaken by the parties to a particular treaty in accordance with the principles of the national law of the States participating in it. The matters of tracing, arrest, confiscation of property, and enforcement of a judgment or court order of a foreign State are regulated in greater detail by the provisions of Article 577 and Part 5 of Article 608 of the CPC.

Thus, at the request of the requesting party, discovered property: 1) may be seized and transferred to the competent authority of the requesting party as evidence in criminal proceedings or for return to its owner; 2) may be confiscated if this is provided for by a judgment or other court decision of the requesting party that has entered into legal force. Recognition of a judgment or other court decision of the requesting party concerning the confiscation of property shall be carried out in accordance with the procedure provided for in Article 608 of the CPC (Part 3 of Article 577 of the CPC); when considering the issue of enforcement of a sentence, the court may simultaneously decide on the enforcement of a judgment of a foreign State in respect of a civil claim and procedural costs, provided that a corresponding motion has been submitted (Part 5 of Article 608 of the CPC).

As another characteristic example of taking international law into account in the field of claim proceedings, one may cite, for instance, the provisions of paragraph 4 of Normative Resolution of the Supreme Court No. 2 dated 12 January 2009, “On the Adoption of Interim Measures in Civil Cases”:

“The interim measures listed in Part 1 of Article 156 of the CPC of the Republic of Kazakhstan are not exhaustive. Taking into account the nature of the disputed legal relationship and in accordance with the legislative act regulating it, the court may adopt other interim measures if failure to adopt such measures may make enforcement of the decision difficult or impossible. International treaties ratified by the Republic of Kazakhstan may provide for interim measures other than those established by the legislative acts of the Republic of Kazakhstan. ... The court shall be entitled to adopt several interim measures simultaneously if this makes it possible to ensure the enforcement of the court decision and the protection of the claimant's violated legitimate rights and interests in the most effective manner.”

Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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